Renuka Kumari v. Santosh Kumari and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 19TH DAY OF JULY 2018 / 28TH ASHADHA, 1940 OP (FC).No. 332 of 2018 ## PETITIONER(S) RENUKA KUMARI AGED 53 YEARS, W/O.LATE SASIKUMAR, PRESENTLY RESIDING IN KARTHIKA, T.C. 9/1699, PULLEKONAM LANE, SASTHAMANGALAM VILLAGE,THIRUVANANTHAPURAM, FROM T.C.NO. 14/57, NANDAVANAM SAMADHI PURAYIDOM, PALAYAM DIVISION, THEYCAUD WARD, THIRUVANANTHAPURAM TALUK. BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA) RESPONDENT(S): ## 1. SANTHOSH KUMARI AGED 60 YEARS, D/O. BABY AMMA, RESIDING IN PRATHEEKSHA, VELLAMKETTUVILA, PRAVACHAMBALAM, EDAKKODU DESOM, PALLICHAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM -695 104. ## 2. PRADEEP KUMRA, AGED37 YEARS, S/O. SANTHOSH KUMARI, RESIDING AT PRATHEEKSHA,VELLAMKETTUVILA,PRVACHAMBALAM, EDAKKODU DESOM, PALLICHAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 104. ## 3. PRADEESH KUMAR, AGED 35 YEARS, S/O. SANTHOSH KUMARI, RESIDING AT PRATHEEKSHA, VELLAMKETTUVILA, PRAVACHAMBALAM, EDAKKODU DESOM, PALLICHAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM- 695 104. ## 4. JAISANKAR NARAYAN, AGED35 YEARS, S/O. P.V.NARAYAN, RESIDING IN C/O. GEORGE JOSEPH, THERUVILPARAMBIL HOUSE, PUTHENKURISU, ERNAKULAM-682 308. O.P.(FC) No.332/2018 :2 : 5. SURYA NARAYAN, - AGED 30 YEARS, D/O. RENUKA KUMARI, RESIDING IN VAISAKH, TC 27/258, KAIPALLY LANE, THARA - 218, VANCHITYOOR VILLAGE, THIRUVANANTHAPURAM- 695 035. 6. M/S. ROYAL BLUE HOTELS PVT. LTD. KADINAMKULAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR, OF M/S. ROYAL BLUE HOTELS PVT. LTD., KADINAMKULAM, THIRUVANANTHAPURAM- 695 001. 7. SHAFEEKA MOHAMMED RAFI AGED ABOUT 45 YEARS, W/O.MOHAMMED RAFI, DIRECTOR, M/S. ROYAL HOTELS PVT. LTD., KADINAMKULAM , THIRUVANANTHAPURAM- 695 001 8. SASIREKHA, AGED ABOUT 45 YEARS, W/O. AJAYKUMAR, DIRECTOR, M/S. ROYAL BLUE HOTELS PVT.LTD., KADINAMKULAM, THIRUVANANTHAPURAM DISTRICT -695 001. 9. SEBASTIAN LEON, AGED 50 YEARS, - S/O.LEON, DIRECTOR,M/S. ROYAL BLUE HOTELS PVT. LTD, KADINAMKULAM, THIRUVANANTHAPURAM DISTRICT -695 001. R1-R3 BY ADV. SRI.V.G.ARUN (K/795/2004) R1-R3 BY ADV. SMT.INDULEKHA JOSEPH R1-R3 BY ADV. SRI.NEERAJ NARAYAN R7-R9 BY ADV. SRI.K.R.SYAM SEKHAR R6 BY ADV. SRI.S.VINOD BHAT R6 BY ADV. SRI.LEGITH T.KOTTAKKAL R6 BY ADV. KUM.ANAGHA LAKSHMY RAMAN THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 10-07-2018, THE COURT ON 19-07-2018 DELIVERED THE FOLLOWING: **OP (FC).No. 332 of 2018 (R)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** EXT.P1 TRUE COPY OF OP18/2018 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPRUAM EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. 16/2018 IN O.P.18/2018ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPRUAM EXHIBIT P3 TRUE COPY OF THE ORDER DATED 11.01.2018 IN I.A.16/2018 IN OP 18/2018 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPRUAM - EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT TO EXHIBIT P2 - EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 6TH RESPONDENT TO EXHIBIT P2 EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA.1028/2018 IN O.P18/2018 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM EXHIBIT P7 TRUE COPY OF THE ADDITIONAL AFFIDAVIT DATED16.04.2018 FILED BY THE PETITIONER IN O.P 18/2018 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM EXHIBIT P8 TRUE COPY OF THE ORDER DATED 05.05.2018IN I.A. 16/2018 IN OP.18/2018 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM. ## **RESPONDENTS' EXHIBITS:** R1(a): THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT IN O.P.(FC) NO.106 OF 2018. R1(b): THE TRUE COPY OF THE PASSPORT OF SANTHOSH KUMARI NO.B 3202503 (RELEVANT PAGES ONLY) R1(c): THE TRUE COPY OF PRESENT PASSPORT OF SANTHOSH KUMARI (RELEVANT PAGES ONLY) R1(d): THE TRUE COPY OF THE PASSPORT OF LATE V.SASIKUMAR (RELEVANT PAGES ONLY) R1(e): THE TRUE COPY OF THE PASSPORT OF PRATHEESH KUMAR (RELEVANT PAGES ONLY) R1(f): THE TRUE COPY OF THE NEW PASSPORT OF PRADEEP KUMAR (RELEVANT PAGES ONLY) - R1(g): THE TRUE COPY OF THE RATION CARD NO.1106250113 R1(h): THE TRUE COPY OF THE ELECTION IDENTITY CARD OF V.SASIKUMAR R1(i): THE TRUE COPY OF ELECTION IDENTITY CARD OF SANTHOSH KUMARI …...............2/- **OP (FC).No. 332 of 2018 (R)** **:2:** R1(j): THE TRUE COPY OF ORIGINAL AADHAAR CARD OF LATE V.SASIKUMAR R1(k): THE TRUE COPY OF AADHAAR CARD OF SANTHOSH KUMARI. R1(l): THE TRUE COPY OF THE ELECTION IDENTITY CARD OF PRATHEESH KUMAR. R1(m):THE TRUE COPY OF THE SSLC BOOK OF PRATHEEKSH KUMAR. (RELEVANT PAGES ONLY) R1(n): THE TRUE COPY OF THE STATEMENT OF ACCOUNTS OF ACCOUNT NUMBER 10460100102098 IN FEDERAL BANK LIMITED PAPPANAMCODE BRANCH IN THE NAME OF LATE V.SASIKUMAR R1(o): THE TRUE COPY OF FORM DA1 IN CONNECTION WITH THE BANK ACCOUNT. R1(p): THE TRUE COPY OF THE PLAINT IN O.S.NO.8 OF 2017 ON THE FILE OF SUBORDINATE JUDGES COURT, NEYYATTINKARA R1(q): THE TRUE COPY OF THE DOCUMENTS ISSUED BY THE VILLAGE OFFICER, SASTHAMANGALAM AS PER THE PROVISIONS OF THE RIGHT TO INFORMATION ACT. R1(r): THE TRUE COPY OF O.P.NO.2113/2017 BEFORE THE FAMILY COURT, THIRUVANANTHAPRUAM. TRUE COPY PS TO JUDGE ## **C.K.ABDUL REHIM &** **R.NARAYANA PISHARADI, JJ.** *************************** O.P.(FC) No.332 of 2018 -----------------------------------------Dated this the 19[th] day of July, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi,J** This Original Petition is filed under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P8 order passed by the Family Court, Thiruvananthapuram in the application filed by the petitioner in that court as I.A.No.16 of 2018 in O.P.No.18 of 2018. 2. The petitioner has filed O.P.No.18 of 2018 in the Family Court against the respondents seeking a decree of declaration that she is the legally wedded wife of one Sasikumar. The petitioner has also sought a decree for partition of the petition schedule properties which allegedly belonged to Sasikumar. 3. The petitioner filed an application as I.A.No.16 of 2018 in O.P.No.18 of 2018 for granting an order of temporary injunction O.P.(FC) No.332/2018 2 . restraining the respondents from alienating the petition schedule properties or causing mischief or creating documents with respect to those properties. During the enquiry in that application, the lower court marked Exts.A1 to A20 documents produced by the petitioner and Exts.B1 to B30 documents produced by the respondents. The Family Court found that the petitioner failed to establish a prima facie case and therefore, dismissed the application for temporary injunction as per Ext.P8 order. 4. The case of the petitioner can be briefly stated as follows: The petition A and B schedule properties belonged to late Sasikumar. The petition C schedule properties were jointly acquired by Sasikumar and respondents 7 to 9 and they have incorporated the sixth respondent company. The petition D schedule properties are the assets and the investments of the business conducted in the petition C schedule properties. Sasikumar had got one-fourth right in the petition C and D schedule properties. The petitioner is the legally wedded wife of late Sasikumar. The marriage between them was solemnized on O.P.(FC) No.332/2018 3 . 05.05.2000 at a temple as per customary rites. Sasikumar died on 03.12.2016 at a hospital due to various ailments. The petitioner is entitled to inherit the petition schedule properties as the heir of deceased Sasikumar. The first respondent had some illicit relationship with Sasikumar and the second and the third respondents are the children born to them in that relationship. The fourth and the fifth respondents are persons brought up by Sasikumar. There was no legal marriage between Sasikumar and the first respondent. The second and the third respondents have got no legitimate claim over the estate of the deceased Sasikumar. The fourth and the fifth respondents have also claimed right over the petition schedule properties. The acts and deeds of the respondents have created a cloud over the status of the petitioner. Therefore, she is entitled to get a decree of declaration that she is the legally wedded wife of Sasikumar and she is also entitled to get a decree for partition of the petition schedule properties and separate possession of her share in the properties. 5. The first respondent filed counter affidavit in the O.P.(FC) No.332/2018 4 . application for temporary injunction for and on behalf of the second and the third respondents also. The main contentions raised by them are the following: The petitioner is not the wife of late Sasikumar. She is the wife of late Narayanan and she is the mother of the fourth and the fifth respondents. The claim for partition of properties is not maintainable before the Family Court. There was no marriage solemnized between the petitioner and Sasikumar on 05.05.2000. On that date, Sasikumar was leading a happy family life along with the first respondent. The marriage of the first respondent with Sasikumar was on 03.01.1997. The petition A and B schedule properties belonged to Sasikumar. But the petition C and D schedule properties absolutely belong to the sixth respondent company. Sasikumar had no title or possession over the petition C and D schedule properties. Sasikumar had bequeathed his entire properties in favour of the second and the third respondents, his children born to the first respondent. The petitioner has got no right or possession over the petition schedule properties. The second and the third respondents are the legitimate children of O.P.(FC) No.332/2018 5 . Sasikumar. The fourth and the fifth respondents are the children of late Narayanan. The name of the house constructed by Sasikumar is Pratheeksha and he was residing in that house till his death. The second and the third respondents are in exclusive possession and enjoyment of the petition A and B schedule properties. The claim for partition of properties is not maintainable before the Family Court. 6. The sixth respondent company filed a separate counter affidavit contending that the claim for partition of the properties of the company is not maintainable before the Family Court. The sixth respondent also contended that the petition C schedule properties belong to the company and that the D schedule properties are the tangible assets owned by the company. The sixth respondent company further contended that Sasikumar was only one of the shareholders of the company and that the legal heirs of Sasikumar have no right over the assets of the company. 7. As noticed earlier, the Family Court found that the petitioner failed to establish a prima facie case and therefore, dismissed the application for temporary injunction as per Ext.P8 O.P.(FC) No.332/2018 6 . order. 8. We have heard the learned counsel for the petitioner as well as the respondents. 9. This is a case in which the petitioner as well as the first respondent claims to be the legally wedded wife of late Sasikumar. The case of the petitioner is that the marriage between her and Sasikumar was solemnized on 05.05.2000. The case of the first respondent is that her marriage with Sasikumar was solemnized as early as on 03.01.1977. Neither party has produced any document to prove solemnization of her marriage with Sasikumar. In such circumstances, the question whether the petitioner has got a prima facie case with regard to her claim has to be decided in the light of the other documents produced by the parties. 10. As stated earlier, the claim of the petitioner is that she got married to Sasikumar on 05.05.2000. However, respondents 1 to 3 have produced several documents which would indicate that long before the date 05.05.2000, Sasikumar had treated the first respondent as his wife. He had shown her name as his O.P.(FC) No.332/2018 7 . spouse in many such documents. In the passport issued to Sasikumar on 20.01.2000, the name of the first respondent is shown as his wife. In the election identity card issued to the first respondent on 02.07.1997, the name of her husband is shown as Sasikumar. These documents have come into existence much before the date 05.05.2000, the date on which the petitioner claims to have married Sasikumar. One cannot even imagine that respondents 1 to 3 have created or manipulated these documents in anticipation of a case that would be filed against them in the year 2018. These documents indicate that even before the date 05.05.2000, the first respondent had become the wife of Sasikumar. Therefore, even if any marriage took place between the petitioner and Sasikumar on 05.05.2000, prima facie, it has to be found that it was conducted during the subsistence of the marriage between the first respondent and Sasikumar. Therefore, prima facie, the petitioner cannot be considered to be the legally wedded wife of late Sasikumar. It follows that the petitioner cannot claim any right over the properties which belonged to Sasikumar in the capacity as his O.P.(FC) No.332/2018 8 . legally wedded wife. It further follows that the petitioner could not establish a prima facie case as to her right over the petition schedule properties. We have only referred to here the documents which had come into existence before the date 05.05.2000. There are many other documents which have come into existence subsequent to that date in which it is shown that the first respondent is the wife of Sasikumar. 11. It is seen that the petitioner has subsequently abandoned the claim that Sasikumar had right over the assets of the sixth respondent company. In fact the petitioner has filed an application before the court below to amend the pleadings, a copy of which is produced as Ext.P6 before this court. By the proposed amendment of pleadings, the petitioner has now virtually abandoned the claim that Sasikumar had one-fourth right in the petition C and D schedule properties. What she now claims is only that Sasikumar was a shareholder of the sixth respondent company which owns the petition C and D schedule properties. Even otherwise, a company is a legal entity and the property of the company is not the property of its shareholders. O.P.(FC) No.332/2018 9 . In view of the failure of the petitioner to establish a prima facie case with regard to her claim that she is the legally wedded wife of Sasikumar, she cannot claim to have any right over the shares of Sasikumar in the sixth respondent company. 12. It is well settled that in order to obtain an order of temporary injunction, the party who seeks grant of such injunction has to prove that he has made out a prima facie case to go for trial and that the balance of convenience is in his favour and that he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove a prima facie case to go for trial, the question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and that he would suffer irreparable loss and injury, if no injunction order is granted (See Kashi Math Samsthan v. Srimad Sudhindra Thirtha Swamy : A.I.R 2010 SC 296). O.P.(FC) No.332/2018 10 . 13. Therefore, in view of the fact that the petitioner has failed to establish a prima facie case with regard to her claim that she is the legally wedded wife of Sasikumar, the questions regarding the balance of convenience and irreparable loss and injury do not arise for consideration. 14. We may also notice that while exercising its jurisdiction under Article 227 of the Constitution of India, this Court can interfere with an order passed by the court below only when the finding is perverse and if no reasonable person would come to the conclusion which has been reached by the court below. It is well settled that the jurisdiction under Article 227 of the Constitution of India must be sparingly exercised and it may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact unless there is no evidence to support such finding or the finding is perverse. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court. It is also not permissible for this Court to review or reweigh the evidence upon which the lower court purports to have passed the order. The O.P.(FC) No.332/2018 11 . supervisory jurisdiction of this Court under Article 227 of the Constitution of India can be exercised only if the order of the lower court is patently illegal or without jurisdiction. Mere errors committed by the lower courts cannot be rectified by this Court in exercise of its power under Article 227 of the Constitution. 15. Even in an appeal filed against an order passed in an application for temporary injunction, the scope of interference of the appellate court is very limited. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had O.P.(FC) No.332/2018 12 . considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion (See Wander Limited v. Antox India Private Limited : 1990 (Supp) SCC 727). If that be the scope of interference in an order passed by the trial court in an application for temporary injunction in exercise of appellate power, the scope of interference with such an order in exercise of the power of this Court under Article 227 of the Constitution of India is more restricted. 16. Incidentally, the question of jurisdiction of the Family Court to decide the dispute in the case arises for consideration here. In **Kasthuri v. Kasthuri (AIR 2018 SC 786)** , the Supreme Court has held as follows: _“7. In the present case, there is no family dispute between the plaintiffs and the defendants. The dispute arose after the demise of Gunaseelan to whom both the plaintiff No.1 and the defendant No.1 claim to be married._ O.P.(FC) No.332/2018 13 . _The other plaintiffs and defendant No.2 are the children claimed to be born out of the respective marriages._ _8. The above would indicate that the dispute between the parties is purely a civil dispute and has no bearing on any dispute within a family which needs to be resolved by a special procedure as provided under the Act. No issue with regard to the institution of marriage and the need to preserve the same also arises in the present case. That apart, the dispute between the parties can only be resolved on the basis of evidence to be tendered by the parties, admissibility of which has to be adjudged within the four corners of the provisions of the Indian Evidence Act, 1872. In such a proceeding it would be clearly wrong to deprive the parties of the benefit of the services of counsels”._ 17. The facts of the present case are almost similar to the facts in _Kasthuri's_ case. Learned counsel for the petitioner would invite our attention to the decision of the Apex Court in Balram Yadav v. Fulmaniya Yadav (AIR 2016 SC 2161) to contend that a declaration with regard to the marital status of a person is a matter to be decided by the Family Court. In the aforesaid case, O.P.(FC) No.332/2018 14 . the parties to the marriage were alive. In the instant case, the person who is claimed to be the husband of the petitioner and the first respondent, is no more as in _Kasthuri's_ case. However, we do not intend to express any opinion with regard to the maintainability of the case before the Family Court or the jurisdiction of the Family Court to entertain the dispute because that court has not considered that question. If any such issue is raised before the Family Court, it is for that court to take a decision in that regard. 18. In the aforesaid circumstances, we find no ground to interfere with the finding of the Family Court that the petitioner has failed to establish a prima facie case for getting an order of temporary injunction in respect of the petition schedule properties. There is no sufficient ground to interfere with the discretion exercised by the Family Court in passing the impugned order by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 19. Consequently, we dismiss this Original Petition. We, however, make it clear that whatever observations/ findings that O.P.(FC) No.332/2018 15 . have been made by us in this judgment would not mean to prejudice the case of the petitioner in the pending case before the Family Court. The Family Court should independently decide the case before it without being influenced by any observations/findings made by us in this judgment. No costs. (sd/-) ## **C.K.ABDUL REHIM, JUDGE** (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr