SANTHA RADHAN v. SUJATHA SURESH

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 WP(C).No. 20474 of 2007(S) -------------------------OP.712/2005 of FAMILY COURT, ALAPPUZHA .................... PETITIONER: ------------ SANTHA RADHAN, AGED 56 YEARS, D/O.LAKSHMIAMMA, ASIRWAD, PADINJAREMADOM, PUTHIYAKAVU, MAVELIKARA. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT: ------------- SUJATHA SURESH, AGED 31 YEARS, W/O.LATE SURESH KUMAR, KIDANGIL HOUSE, KOZHANCHERRY MURI, KOZHANCHERRY VILLAGE, KOZHANCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX ## PETITIONER'S EXHIBITS: - Ext.P1: True copy of the plaint in O.S. No.61/1999 filed by the respondent before the Sub court, Mavelikara dated 30.3.1999. - Ext.P2: True copy of the written statement filed by the petitioner before the Hon'ble Sub Court, Mavelikara dated 3.4.2003. - Ext.P3: True copy of the judgment dated 9.1.2007 in W.P.(C) No. 28023/2006 of this Hon'ble Court. - Ext.P4: True copy of the order dated 19.5.2007 in I.A. 2260/06 in O.P. No.712/05 of the Family Court, Alappuzha. ## RESPONDENT'S EXHIBITS: NIL. ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** **---------------------------------------------------------------W.P.(C) NO. 20474 OF 2007** **----------------------------------------------------------------** Dated this the 12th day of August, 2008 ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** The petitioner herein is the respondent in O.P. No.712 of 2005 on the file of the Family Court, Alappuzha. She is the petitioner in I.A. No.2260 of 2006 in the said Original Petition. The Writ Petition is filed seeking the following reliefs: - i. to issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P4 order. - ii. to issue a writ of mandamus or any other appropriate writ, order or direction to the Family Court, Alappuzha to return O.P. No.712/05 to Sub Court, Mavelikara. 2. Ext.P4 order was passed by the Family Court dismissing the application filed by the petitioner herein to return the case to the Sub Court, Mavelikara. Aggrieved by the above order, she has filed this Writ Petition. The parties herein are referred to as petitioner and respondent as W.P.(C)NO.20474/2007 2 ## in the Original Petition. 3. The respondent herein filed O.S. No.61 of 1999 before the Sub Court, Mavelikara for declaration of her title in respect of the valuables kept in the locker which stood in the name of her late husband and his mother. It is her case that the articles kept in the locker were purchased by her with her own funds. The above suit was subsequently transferred to the Family Court on its establishment. The reliefs claimed are (i) declaration of the plaintiff's title over the gold ornaments (ii) mandatory injunction directing the defendants to hand over the gold ornaments kept in the locker and (iii) permanent prohibitory injunction restraining the defendants from removing the gold ornaments kept in the locker. The defendant contended before the Family Court that considering the case of the plaintiff that the entire gold ornaments kept in the locker is her property and that her husband had not made over the gold ornaments to the defendant, it is clear that the dispute is not one to be adjudicated by the Family Court and that the case was mistakenly transferred from the Sub Court to the Family Court. She, therefore, prayed for retransfer of the case to the Sub Court, Mavelikara contending that the Family Court has no jurisdiction to try the same. W.P.(C)NO.20474/2007 3 4. The Family Court found that in the suit, the claim of the plaintiff was that 30 sovereigns of gold ornaments were given to her at the time of marriage. The Family Court held that the question whether the petitioner had gold ornaments weighing 30 sovereigns at the time of marriage and whether those ornaments were kept in the locker which stood in the name of her husband and his mother are matters to be proved in evidence at the time of trial and that considering the nature of the pleadings of the parties and the reliefs sought for by the plaintiff, the dispute involved comes within the purview of Section 7(d) of the Family Courts Act, 1984 and hence, the Family Court, Alappuzha has jurisdiction to entertain the petition. I.A. No.2260 of 2006 was, therefore, dismissed. 5. The point that arises for consideration is as to whether the transfer of the suit, O.S. No. 61 of 1999 filed before the Sub Court, Mavelikara to the Family Court, Alappuzha and numbered as O.P. No.712 of 2005 is liable to be retransferred and whether the Family Court has jurisdiction under Section 7(1) of the Family Courts Act to adjudicate the dispute arising between the parties in the nature of the pleadings contained in Ext.P1. 6. The plaintiff in the suit is the wife of late Sureshkumar, the elder W.P.(C)NO.20474/2007 4 son of the defendant. Both the plaintiff and her husband were employed in the Gulf countries. Sureshkumar died on 9.8.1998. The locker in question stood in the name of Sureshkumar and his mother who is the defendant in the suit. The suit was filed for declaration that the plaintiff was the absolute owner of 86 sovereigns of gold ornaments kept in the locker and for a direction to the defendant to hand over the same and also for permanent prohibitory injunction restraining the defendant from removing the gold ornaments kept in the locker. It is pleaded in the plaint that at the time of her marriage in the year 1990, she was given 30 sovereigns of gold ornaments which were surrendered to her mother-inlaw. It is further pleaded that when she came to Kerala in 1993, she had brought 26 sovereigns of gold ornaments, that the plaintiff and her husband decided to open a locker in Canara Bank before leaving for Gulf and accordingly a locker was opened in the joint name of the plaintiff's husband and his mother. The plaintiff further pleaded that during 1998 she brought two gold bars each weighing 15 sovereigns and thus 86 sovereigns of gold was kept in the locker which according to her belongs to her even though the locker stood in the name of her husband and his mother. 7. Learned counsel appearing for the petitioner submitted that W.P.(C)NO.20474/2007 5 Section 7 of the Family Courts Act and the explanations are not attracted in the present case and, therefore, the Family Court has no jurisdiction to try the case. Learned counsel for the respondent/wife on the other hand submitted before us that the suit was filed for return of gold ornaments which the respondent had at the time of marriage and hence the forum to decide such dispute is the Family Court even though one of the spouses was not alive at the time when the case was filed. According to him, this is a case where Section 7(1)(d) of the Family Courts Act is attracted. 8. The pleadings in the case makes it clear that the dispute involved in the case comes within Section 7(1)(d) of the Family Courts Act. It is alleged that during the continuance of the marriage, the gold ornaments brought by the plaintiff were kept in the locker which stood in the name of her husband and his mother. It is contended by the mother-in-law that the articles in the locker belongs to her. The dispute to be decided is whether the plaintiff had 30 sovereigns of gold ornaments at the time of marriage and whether those ornaments were kept in the locker in question. If the locker was maintained for the purpose of keeping properties which were given to the plaintiff at the time of marriage, no doubt the dispute comes within Section 7(1)(d) of the Family Courts Act. The matter is also squarely covered by the Bench decision of this Court reported in W.P.(C)NO.20474/2007 6 **Suprabha v. Sivaraman, 2006(1) K.L.T. 712** Hence, the challenge against Ext.P4 fails. The Writ Petition is accordingly dismissed. There will be no order as to costs. **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** **sp/** W.P.(C)NO.20474/2007 7 **KURIAN JOSEPH & HAURN-UL-RASHID, JJ.** **W.P.(C)NO. 20474/2007** **JUDGMENT** **12th August, 2008** W.P.(C)NO.20474/2007 8