Tr.P(C).No.391 OF 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942** ## **Tr.P(C).No.391 OF 2020** **TO TRANSFER O.S.NO.318/2019 PENDING BEFORE MUNSIFF COURT, WADAKKANCHERRY TO FAMILY COURT, THRISSUR** ## **PETITIONER/DEFENDANT:** **BABY AGED 51 YEARS W/O. NARAYANAN, KORATTYKKARA MANA, PANJAL P.O, PANJAL VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT, PIN-679 531** **BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA** ## **RESPONDENT/PLAINTIFFS:** **1 SAVITHRI W/O. RAJENDRAN, AGED 71 YEARS, SANTHIBHAVANIL, RAMAPURAM VILLAGE, RAMAPURAM P.O, BAZAR, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN-686 576 2 EASWARI, W/O. RAMAN NAMBOOTHIRI, AGED 67 YEARS, THALAPPOYIL MADATHIL, KALATHIL ILLAM, THAMARASSERI.P.O, RAROTH VILLAGE, THAMARASSERI TALUK, KOZHIKODE DISTRICT, PIN-673 573** **3 SREEDEVI, W/O. NARAYANAN, AGED 60 YEARS, 1-58, SECTOR-12, NOIDA GUATHAM BUDHA NAGAR, UTTAR PRADESH, PIN – 201 301.** **R1 TO R3 BY ADVS. SMT. REMADEVI.K SMT.P.MAMATHA SMT.P.DHANYA THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Tr.P(C).No.391 OF 2020 2 ## **O R D E R** ## **Dated this the 8[th] day of December 2020** This Transfer Petition is filed under Section 24 of the Code of Civil Procedure seeking to transfer O.S.No.318 of 2019 (Annexure – A1) from the file of the Court of the Munsiff, Wadakkancherry to the Family Court, Thrissur. 2. The case of the petitioner, in brief, is that she is the defendant in Annexure A-1 and the estranged wife of one Sri.Narayanan. The respondents – the plaintiffs in Annexure A-I - are the sisters of Sri. Narayanan. The respondents have filed Annexure A-1, inter alia, seeking a decree for mandatory injunction to evict the petitioner from the petition scheduled property. The petitioner has filed O.P.No.138 of 2020 (Annexure – A2) before the Family Court, Thrissur, inter alia, seeking a decree to declare that the partition deed executed by Sri. Narayanan, his mother and the respondents is null and void. The subject matter property in Annexures A1 and A2 are one and the same. Tr.P(C).No.391 OF 2020 3 The petitioner has also filed M.C.No.6 of 2018 before the Judicial First Class Magistrate Court, Wadakkancherry, invoking the provisions of the Protection of Women from Domestic Violence Act, seeking a residence order to reside in the plaint schedule property – her shared household. It is only to defeat the petitioner's legal right to reside in the shared household, that the respondents have filed Annexure - A1. Therefore, it is necessary that Annexure – A1 be transferred from the Court of the Munsiff to the Family Court, Thrissur, so that the cases can be consolidated and jointly tried, which would save judicial time and avoid conflict of decisions. Hence, the transfer petition may be allowed. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. The learned counsel appearing for the petitioner reiterated the contentions in the memorandum of Transfer Petition. She also relied on a Division Bench Tr.P(C).No.391 OF 2020 4 decision of this Court in **Sainudeen v. Shareefa K.M and Others** [2018(5)KHC 122], to fortify her contention that if the Court finds that matters in issue is common and arises out of the dispute between the parties to a marriage, with respect to the common subject matter, there is no impediment in a suit being transferred from the Civil Court to the Family Court. 5. The learned counsel appearing for the respondents vehemently opposed the transfer petition. She contended that are all the respondents are women and Senior Citizens and are older to the petitioner. Therefore, going by the well settled principles in a catena of precedents, the convenience of the respondents has to be given preference to, rather than the relative hardship of the petitioner. The dispute involved in Annexure A-1 does not arise out of the marital relationship and hence the transfer petition is only to be dismissed. 6. The question to be considered in this transfer petition is whether Annexure A – 1 can be Tr.P(C).No.391 OF 2020 5 transferred to the Family Court, Thrissur. 7. On reading the averments in Annexures A1 and A2, it is seen that the subject matter property in both the cases is one and the same. In Annexure - A1, the respondents have sought a decree for mandatory injunction to evict the petitioner from the petition scheduled property. Whereas, in Annexure – A2, the petitioner has, inter-alia, sought to declare that the partition deed purportedly executed between the respondents and other co-sharers, in respect of the petition scheduled property, is null and void. 8. It is the specific case of the petitioner in Annexure A-2 that the partition deed is a sham document, which was fraudulently executed by her husband in order to defeat her indefisable right to reside in the shared household and that the property was purchased after selling her gold ornaments. Likewise, her husband is defending the respondents, as their power of attorney holder. Therefore, the subject matter in dispute in Tr.P(C).No.391 OF 2020 6 Annexures A-1 & A-2 is extricable and one that arises out of the marital relationship between the petitioner and her husband. 9. A Division Bench of this Court in **Sainudeen v. Shareefa K.M and Others** (supra), has categorically held that there is no legal impediment to transfer a suit from a Civil court to a Family Court, if this Court finds that the matter in issue is common and arises out of a dispute between the parties to a marriage with respect to common subject matter of the parties or either of them. 10. As already found the property in both Annexures A1 & A2 is one and the same. The principal issues that have to be tried and decided by either Court are: whether the property was purchased utilising the petitioner's gold ornaments; whether the partition deed was executed to defeat the petitioner's right to reside in the property; whether the property can be treated as shared household and whether the respondents have a Tr.P(C).No.391 OF 2020 7 right to evict the petitioner from the property. Therefore, the issues are intertwined and one arising out of the marital relationship. In the aforesaid situation, it is only just and expedient that Annexure – A1 be transferred from the Court of the Munsiff to the Family Court, Thrissur so that, both the cases can be consolidated and jointly tried, which would avoid multiplicity of proceedings, avoid conflict of decisions and save judicial time. 11. Law in respect of transfer of proceedings, particularly in matrimonial disputes, is no longer resintegra, in view of the categoric declaration of law by the Hon'ble Supreme Court in **Sumitha Sing V. Kumar Sanjay and another** [(2001)10 SCC 41)], **Mona Aresh Goel V. Aresh Satya Goel** [(2000) 9 SCC 255], **Vaishali Shridhar Jagtap V. Sridahar Vishwanath Jagtap** [AIR 2016 SC 3584] and **Santhini V. Vijaya Venkatesh** [2017(4) KLT 415 (SC)]. The Hon'ble Supreme Court has held that it is the convenience of the woman and children that has to be given preference, while ordering the Tr.P(C).No.391 OF 2020 8 ## transfer of a case from one Court to another. 12. It may be a fact that the respondents are also women, but the fact remains that the cardinal dispute is between the petitioner and her husband, that is a dispute which arises out of their marital relationship i.e., whether the partition deed was fraudulently executed, to defeat the right of the petitioner, which issue is pivotal and the other issues are ancillary. 13. Hence, I am of the considered opinion that discretion has to be exercised in favour of the petitioner, whose hardship and convenience out weighs the comparative hardship of the respondents, otherwise the petitioner would have contest the proceedings before the two Courts, which would cause her severe prejudice. The relative hardship of the respondents can be mitigated by ordering their personal appearance before the Family Court to be exempted, unless so ordered by the Court. Moreover, all other procedural formalities like conciliation and mediation etc., can be attended by Sri.Narayanan, Tr.P(C).No.391 OF 2020 9 who is also the power of attorney holder of the respondents. In any case, Sri. Narayanan has to contest Annexure A-2, before the Family Court, Thrissur, since he has not moved for transfer of Annexure A-2. In the totality of the facts and circumstances of the case, the law laid down in **Sainudeen (supra)** and that of the Hon'ble Supreme Court in the afore cited decisions, in exercise of the discretionary powers of this Court under Section 24 of the Code of Civil Procedure, I allow the Transfer Petition by ordering the transfer of O.S.No. 318 of 2019 from the Court of the Munsiff, Wadakkancherry to the Family Court, Thrissur. The parties are at liberty to move the Family Court, Thrissur seeking for consolidation and joint trial of Annexures A1 and A2, and also for permanent exemption from personal appearance before the Family Court, which shall be favorably considered by the Family Court. The Registry shall forward a copy of this order to the Court of the Munsiff, Wadakkancherry with instructions to forthwith Tr.P(C).No.391 OF 2020 10 transmit the records in O.S.No.318 of 2019 to the Family Court, Thrissur. The parties are directed to appear before the Family Court, Thrissur either in person or through counsel on 22.01.2021. **Sd/-** **C.S.DIAS JUDGE** DK Tr.P(C).No.391 OF 2020 11 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF O.S.NO. 318/2019 PENDING BEFORE MUNSIFF COURT, WADAKKANCHERRY. ANNEXURE A2 TRUE COPY OF O.P. NO. 138/2020 PENDING BEFORE THE FAMILY COURT, THRISSUR.** **RESPONDENTS' EXHIBITS: NIL**