Tripura, W/o Mandathara Vinodan and D/o Mathuruthy Andi v. Karthikeyan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934** ## **OP(C).NO. 3291 OF 2011 (O) -------------------------------------** ## **I.A.NO.3855 OF 2010 IN O.S.NO.117 OF 2009, SUB COURT, IRINJALAKUDA** ## **PETITIONER(S)/PETITIONER:** **----------------------------------------** **TRIPURA,W/O.MANDATHARA VINODAN & D/O. MATHURUTHY ANDI, LA DESOM S.N.PURAM VILLAGE KODUNGALLUR TALUK.** **BY ADVS.SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH** ## **RESPONDENT(S):** - **-------------------------** **1. KARTHIKEYAN,S/OMANDATHARA KRISHNAN, MATHILAKAM DESOM, PAPPINIVATTOM VILLAGE KODUNGALLUR TALUK-680659** **2. GEETHA, W/O.MANDATHRA KARTHIKEYAN, MATHILAKAM DESOM, PAPPINIVATTOM VILLAGE KODUNGALLUR TALUK-680659** **3. BHARGAVI,D/O.MANDATHRA KRISHNAN, MATHILAKAM DESOM, PAPPINIVATTOM VILLAGE KODUNGALLUR TALUK-680659** ## **4. OMANA,D/O.MANDATHRA KRISHNAN & POYYARA SURENDRAN, MATHILAKAM DESOM PAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK-680659** ## **O.P(C) NO.3291 OF 2011** **5. BABU, S/O.KUDILINGAL NARAYANAN, P.VMBBLLUR DESOM, S.N PURAM VILLAGE, KODUNGALLUR TAULK** **6. VINODINI, W/O.CHANASSERY GOPALAKRISHNAN, PANANGAD DESOM S.N.PURAM VILLAGE, KODUNGALLUR TAULK** **7. JOLLY ,W/O.PALITHARA RAJENDRA BABU, CHENDRAPPINI DESOM, EDATHIRUTHY VILLAGE KODUNGALLUR TALUK-680659** **8. SHAILA, W/O.KOLLAMPARAMBIL ASHOKAN, P.VEMBALLUR DESOM, S.N.PURAM VILLAGE, KODUNGALLUR TALUK-680659** **9. SHELLY, S/O.MUNDATHRA PURUSHOTHAMAN, PAPPINIVATTOM VILLAGE & DESOM, KODUNGALLUR TALUK 680659** **10. PRADEEP, S/O.MUNDATHARA PURUSHOTHAMAN, PAPPINIVATTOM VILLAGE & DESOM, KODUNGALLUR TALUK 680659** **11. PRAVEEN, S/O.MUNDATHARA PURUSHOTHAMAN, PAPPINIVATTOM VILLAGE & DESOM, KODUNGALLUR TALUK 680659** **12. YAMUNA,D/O.MUNDATHRA PURUSHOTHAMAN, PAPPINIVATTOM VILLAGE & DESOM, KODUNGALLUR TALUK 680659** **13. SHAMMY,D/O.MANDATHRA PURUSHOTHAMAN, PAPPINIVATTOM VILLAGE & DESOM, KODUNGALLUR TALUK 680659** **14. BHAMA, W/O.MUNDATHRA PURU SHOTHAMAN, PAPPINIVATTOM VILLAGE & DESOM, KODUNGALLUR TALUK 680659** **15. LAKSHMI,D/O.MANDATHRA PURUSHOTHAMAN, PAPPINIVATTOM VILLAGE & DESOM, KODUNGALLUR TALUK 680659** **R,R1,2,4-7 BY ADV. SRI.P.N.RAMAKRISHNAN NAIR R,R1,2,4-7 BY ADV. SRI.P.VISWANATHAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(C)NO.3291 OF 2011** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** |**EXT.P1:-**|**TRUE COPY OF THE PLAINT IS O.S.117/09 DT.12/2/2009**| |---|---| |**EXT.P2:-**|**TRUE COPY OF IA.3855/2010 DT.21/10/2010**| |**EXT.P3:-**|**TRUE COPY OF THE OBJECTION IN IA 3855/2010 DT.2/11/2010**| |**EXT.P4:-**|**TRUE COPY OF THE ORDER IN IA 3855/2010 DT.22/1/2011.**| **RESPONDENT(S)' EXHIBITS: NIL** **TRUE COPY** **P.S. TO JUDGE** **THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3291 of 2011 ==================================== Dated this the 13[th] day of February, 2013** ## **J U D G M E N T** Exhibit P4, order dated 22.01.2011 on I.A. No.3855 of 2010 in O.S. No.117 of 2009 of Principal Sub Court, Irinjalakuda is under challenge. 2. Petitioner filed O.S. No.117 of 2009 for recovery of possession of the suit property. She claimed that she was married to one Vinodan who owned properties. On his death the said properties devolved on petitioner by law of succession. The said property was entrusted to the respondents for management. While so, respondents 1 and 2 (1[st] respondent is the brother of the Vinodan and 2[nd] respondent is the wife of 1[st] respondent) created documents in collusion with other respondents. 3. Contesting respondents denied that petitioner is the wife of late Vinodan and acquired the suit property by inheritance. In view of the above contention, petitioner filed I.A. No.3855 of 2010 to return the plaint for re-presentation in the ## **O.P(C) No.3291 of 2011** -: 2 :- Family Court concerned since according to the petitioner, dispute concerned property of husband of petitioner, respondents 1 and 2 are relatives of the husband and the civil court has no jurisdiction to entertain and try the suit. I.A. No.3855 of 2010 was opposed by the contesting respondents. 4. Learned Sub Judge was of the view that there is no issue between the spouses, respondents 1 and 2 are only the brother and brother-in-law of deceased husband and hence the Family Court has no jurisdiction to entertain and try the suit. It was therefore found that the suit is maintainable in the civil court. Consequence was dismissal of I.A. No.3855 of 2010 by Ext.P4, order. 5. Learned counsel for petitioner contended that the dispute would squarely fall within the purview of Section 7(1)(d) of the Family Courts Act, 1984 (for short, “the Act”). It is contended that real dispute in the suit being whether petitioner has inherited the suit property consequent to the death of Vinodan who according to the petitioner is her husband, that is a dispute arising out of a marital relationship as understood under Sec.7(1)(d) of the Act and triable by the Family Court. Reliance is placed on the decision in **Muhammed** **O.P(C) No.3291 of 2011** -: 3 :- **Davood and Another v. Hafsath and Another** (2009 [4] KHC 853), **Vasumathi v. Valsan** (2011 [3] KLT 638) and **Anilkumar v. Sheela** (2011 [4] KLT 120). 6. Learned counsel for respondents 1 and 2 contended that Sec.7 of the Act is exclusionary in nature and it must be confined to matters specifically referred in Sec.7 of the Act. Learned counsel has invited my attention to the decision of the Andra Pradesh High Court in **Srihari v. Sukunda** (2001 KHC 321) where, in paragraph 4 it is stated that if one of the spouses is absent in the litigation it can never be considered as a cause falling within the realm of the Family Court, the Act being exclusionary in nature and enacted for resolution of disputes of a particular nature and enumerated in the Explanation. According to the learned counsel, in the absence of some materials produced by the petitioner to show that she was married to the later Vinodan, she could not claim right over the property by inheritance so that jurisdiction of the civil court is ousted and it is vested with the Family Court. 7. It is not disputed by the learned counsel for respondents (other than 3 and 15) that contesting respondents ## **O.P(C) No.3291 of 2011** ## -: 4 :- have disputed status claimed by the petitioner as widow of Vinodan. They also denied that petitioner has inherited the suit property which originally belonged to the late Vinodan. 8. Question of petitioner getting relief against respondents would arise only if it is shown that the suit property was inherited by her consequent to the death of Vinodan who according to her is her husband. Thus there is a dispute arising out of a marital relationship though one of the parties to the marriage (Vinodan) is not alive. 9. Then the question is whether in such a situation, the dispute would come within Sec.7(1)(d) of the Act? In ## **Muhammed Davood and Another v. Hafsath and Another** it is held that the mere fact that a “decree” is not specifically referred to in Section 7(1)(d) cannot detract against jurisdiction of the civil court to entertain a suit for decree (and not merely an order or injunction). The same view is taken in **Vasumathi** **v. Valsan** (2011 (3) KLT 638). Therefore absence of expression 'decree' in Sec.7(1) (d) of the Act need not detract this Court from holding that if otherwise entertainable, the Family Court has jurisdiction to entertain the suit. ## **O.P(C) No.3291 of 2011** ## -: 5 :- 10. In **Anilkumar v. Sheela** wife filed a petition in the Family Court for recovery of money against her husband and brothers of husband. That was found to be a dispute coming under Sec.7(1)(d) of the Act. In **Suprabha v. Sivaraman** (2006 [1] KLT 712) referring to Sec.7(1)(d) of the Act it is held that a petition for return of gold ornaments and cash paid at the time of marriage will came within the jurisdiction of the Family Court though one of the spouses was not alive at the time the case was filed. 11. Yet another decision that would throw light on the issue is **Sindhu Sidharthan v. Sidharthan** (2010 (3) KLT 79) where the dispute was whether the document executed by the wife in her capacity as Power of Attorney holder after revocation of the Power of Attorney is valid or not, is a family dispute and the Family Court is competent to determine the same. It was held that it will not go out of the sweep of Explanation C to Sec.7(1)(d) of the Act. 12. Viewed in the light of the above decisions I am inclined to think that the real dispute in this case being whether petitioner is the wife of late Vinodan and has inherited the suit ## **O.P(C) No.3291 of 2011** ## -: 6 :- property, that comes within Sec.7(1)(d) of the Act. Therefore, mere absence of one of the spouses as party to the suit cannot take the dispute outside the purview of Sec.7(1)(d) of the Act. In that view of the matter learned Sub Judge was not right in holding that the Family Court has no jurisdiction and civil court alone has jurisdiction to entertain the suit. It follows that Ext.P4, order is liable to be set aside and I.A. No.3855 of 2010 allowed. Resultantly, the Original Petition is allowed as under: (i) Exhibit P4, order dated 22.01.2011 on I.A. No.3855 of 2010 in O.S. No.117 of 2009 of the Sub Court, Irinjalakuda is set aside. (ii) I.A. No.3855 of 2010 is allowed. (iii) Learned Sub Judge, Irinjalakuda shall return the plaint to the petitioner. If petitioner invokes Rule 10A of Order VII of the Code of Civil Procedure, learned Sub Judge shall pass appropriate ## **O.P(C) No.3291 of 2011** -: 7 :- orders directing the parties to appear in the Family Court on the date specified by the court. ## **THOMAS P. JOSEPH, JUDGE.** vsv