Valsala and others v. Geetha Rajmohan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937** ## **RSA.No. 110 of 2014 ()** **----------------------(AGAINST THE JUDGMENT IN AS.NO. 61/2008 OF ADDL.DISTRICT COURT-1, MAVELIKKARA DATED 31-10-2013)** **(AGAINST THE JUDGMENT IN OS.NO. 240/2005 OF MUNSIFF COURT, MAVELIKKARA DATED 10-01-2008)** **-----------** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS:** **-----------------------------------------------------------------** **1. VALSALA, AGED 44 YEARS, SREYAS, KANDIYOOR MURI, MAVELIKKARA VILLAGE.** **2. AKHILA KRISHNAKUMAR, AGED 19 YEARS, SREYAS, KANDIYOOR MURI, MAVELIKKARA VILLAGE.** **3. NEELIMA KRISHNAKUMAR, AGED 15 YEARS, SREYAS, KANDIYOOR MURI, MAVELIKKARA VILLAGE, REPRESENTED BY HER MOTHER THE 1ST APPELLANT HEREIN.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **------------------------------------------------------------** **GEETHA RAJMOHAN, AGED 48 YEARS, FLAT NO. 513, ABDUL AZIZ AL MASJID BUILDING, PORT SAEED, DUBAI, U.A.E. FROM SREYAS, KANDIYOOR MURI, MAVELIKKARA VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER REGHUNATHA PILLAI, SREYAS, KANDIYOOR MURI, MAVELIKKARA VILLAGE. PIN-690 101.** **BY ADVS. SRI.P.B.KRISHNAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.B.SURESH KUMAR, J.** ## **= = = = = = = = = = = =** ## **R.S.A.No.110 of 2014.** **= = = = = = = = = = = = Dated this the 6th day of January, 2016.** ## **J U D G M E N T** Defendants in a suit for injunction, both mandatory and prohibitory, are the appellants in this second appeal. 2. The first defendant is the wife of the brother of the plaintiff. Defendants 2 and 3 are the children of the first defendant. The case of the plaintiff is that she has obtained the suit property as per Ext.A2 partition deed and that the defendants who are in permissive occupation of the building in the suit property are not vacating the building despite repeated demands. The relief sought in the suit was a mandatory injunction directing the defendants to vacate the building in the suit property. Other ancillary reliefs were also sought by the plaintiff. The defendants resisted the suit **RSA.No.110/2014.** 2 contending inter alia that a sum of Rs.4,00,000/- was paid to the father of the plaintiff at the time of the marriage of the first defendant with the brother of the plaintiff on an understanding that the plaint schedule property will be given towards the share of the husband of the first defendant. According to the defendants, though a property was purchased making use of the said amount of Rs.4,00,000/- by the father of the plaintiff at Mumbai, the suit property was not given to the share of the husband of the first defendant as undertook by the father of the plaintiff. It was also contended by them that in the circumstances they have a charge over the suit property. 3. The trial court rejected the contentions raised by the defendants and decreed the suit. Though an appeal was preferred by the defendants challenging the decision of the trial court, the appellate court confirmed the decision of the trial court. Hence this second appeal by the defeated defendants. 3 ## **RSA.No.110/2014.** 4. Heard the learned counsel for the appellants as also the learned counsel for the respondent/plaintiff. 5. The learned counsel for the appellants raised two contentions. The first contention was that the suit is one which would fall within the scope of Section 7 of the Family Courts Act and therefore, the civil court had no jurisdiction to entertain the same. The learned counsel for the appellants relied on the decision of this Court in **Vasumathi v. Valsa** (2011(3) KLT 638) in support of the said contention. The second contention raised by the learned counsel was that in so far as a sum of Rs.4,00,000/was paid at the time of the marriage of the first defendant to the father of her husband who held the suit property at the relevant time, the first defendant has a charge over the same under Section 39 of the Transfer of Property Act. Alternatively, the learned counsel for the appellants pleaded for time to surrender vacant possession of the building in the suit property. **RSA.No.110/2014.** 4 ## 6. There is no substance in the contentions raised by the learned counsel for the appellants. Section 7 of the Family Courts Act reads thus: _**“Jurisdiction** - (1) Subject to the other provisions of this Act, a Family Court shall.--_ _(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and_ _(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends._ _**Explanation:-** The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--_ _(a) suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;_ _(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;_ _(c) a suit of proceeding between the parties to a marriage with respect to the property of the parties or of either of them;_ _(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;_ _(e) a suit or proceeding for a declaration as to the legitimacy of any person;_ **RSA.No.110/2014.** 5 ## _(f) a suit or proceeding for maintenance;_ _(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor._ _(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise: -_ _(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and_ _(b) such other jurisdiction as may be conferred on it by any other enactment”._ The learned counsel for the appellants relies on clause (d) of Section 7(1) of the Act to contend that the present suit would come within the scope of Section 7. The scope of clause (d) of Section 7(1) of the Act was considered by this Court in **Leby Issac v. Leela M.Nainan** (2005(3) KLT 665). Paragraphs 12 to 14 of the said judgment read thus: - “12. The expression, “circumstances” means ‘the surroundings of an act’, as per Law lexicon by P. Ramanatha Aiyar, reprint edition, 1992. It also means ‘the particulars which accompany an act’, The word “circumstances” is explained in _Salter v. State,_ 163 Ga. 80, 135 S.E.408, 409 also as, “related or accessory facts, occurrences or things which stand around, or about, which attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or qualify a principal fact or event. (vide Black’s Law Dictionary Fourth edition). 13. So, ‘circumstances’ in relation to a marital relationship will be **RSA.No.110/2014.** 6 those particulars which closely precedes, surrounds, accompanies and follows a marital relationship. That means, primarily those can be the marriage itself and the surrounding occurrences in connection with marriage. The main requirement is that such ‘circumstances’ must have a direct bearing on marriage, since the marriage precedes, the existence or origin of a ‘marital relationship’. ‘Circumstances’ arising out of a marital relationship are therefore, ‘occurrences or things which stand around or about, which attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or qualify the principal event' of a marriage or marital relationship. 14. The expression ‘in circumstances arising out of marital relationship’ thus means not only those occurrences which transpired during marital life, but those also include such circumstances which led to the marriage, which developed thereafter, which took place during marital life, which resulted in breaking down of marriage and also those which ‘closely’ followed as a consequence of all these. If the intention of legislature was to take in only those occurrences which take place during a ‘marital relationship’, there was no necessity to use the word ‘circumstances’ in explanation (d) to S.7(1) of the Act. The same purpose could have been achieved if explanation (d) is worded without the term ‘circumstances’ also. So, the inclusion of word ‘circumstances’ in the relevant provision is quite significant and it must have been done to include all such circumstances surrounding, preceding and closely following a marital relationship ie., the principal event of marriage and the eventualities surrounding the same.” It is thus evident that clause (d) of Section 7(1) of the Family Courts Act contemplates only suits or proceedings for an order or injunction in relation to occurrences or things which stand around or about, which attend upon, which closely precede or follow, which surround and accompany, **RSA.No.110/2014.** 7 which depend upon, or which support or qualify the principal event of a marriage or marital relationship. The expression 'in circumstances arising out of marital relationship' would also include circumstances which led to the marriage, which developed thereafter, which took place between marital life, which resulted in breaking down of the marriage and also which closely followed as a consequence of all these. Among the categories of suits and proceedings referred to in Section 7(1), clause (c) of Section 7(1) alone deals with suits or proceedings with respect to property. To attract clause (c) of Section7(1) of the Act, the dispute must be between the parties to the marriage. The present suit is one for a mandatory injunction directing the defendants to vacate the suit property alleging that the defendants are in permissive occupation of the building in the suit property. The dispute is not between parties to a marriage. Further, it cannot be said that the present suit is a suit in relation to any occurrence or thing which stand around or about, which 8 ## **RSA.No.110/2014.** attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or qualify the marriage of the first defendant. Likewise, it cannot also be said that the present suit is one arising out of circumstances which led to the marriage of the first defendant, which developed thereafter, which took place between marital life, which resulted in breaking down of the marriage and also which closely followed as a consequence of all these. In the said circumstances, the contention raised by the learned counsel for the appellants that the suit was not maintainable before the civil court cannot be accepted. 7. There is no substance in the contention raised relying on Section 39 of the Transfer of Property Act as the suit in the instant case is not one for realization of money. Even assuming that the first defendant has a charge over the suit property, the same does not affect the right of the plaintiff to claim the relief sought in the suit. 9 ## **RSA.No.110/2014.** In the result, the second appeal is dismissed. However, having regard to the relationship between the parties, I deem it appropriate to grant to the defendants time till 30.6.2016 to vacate the building in the suit property on condition that the defendants shall file an affidavit before the trial court/execution court, within six weeks from today, unconditionally undertaking to surrender vacant possession of the plaint schedule building, on or before 30.6.2016. All the interlocutory applications in the appeal are closed. **Sd/- P.B.SURESH KUMAR, JUDGE.** ## _**Kvs**_ ## _**// true copy //**_ _**PA TO JUDGE.**_