Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE2D DAY OF JULY201411TH ASHADHA, 1936 OP(C).No. 230 of 2014 (O) -------------------------- AGAINST THE ORDER
IN OS1192013 of SUB COURT, PERUMBAVOOR PETITIONER(S)/PLAINTIFF: ----------------- K.T.PAULOSE, AGED71YEARS DENTIST, S/O.LATE SHRI.THOMAS CHENNAKKATTU KALANKAMARI HOUSE, KADAYIRUPPU KARA AIKKARANAD NORTH VILLAGE. BY ADVS.SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL RESPONDENT(S)/DEFENDANTS: ------------------- 1. MOLLY, AGED66YEARS HOUSEWIFE, W/O.DR.K.T.PAULOSE CHENNAKKATTUKALANKAMARI HOUSE, KADAYIRUPPU KARA AIKKARANAD NORTH VILLAGE, KOLLENCHERRY-682311.
2. ANUGIBI, AGED42YEARS DENTIST, W/O.GIBI ABRAHAM, KOIKKARA VADAKKEN HOUSE CHITTANADU KARA, KUNNATHUNAD VILLAGE KOLLENCHERRY-682311. R1-R2 BY ADV. SRI.A.C.THOMAS ADHIKARAM R1-R2 BY ADV. SRI.M.S.UNNIKRISHNAN R1-R2 BY ADV. SMT.JAYASREE MANOJ R1-R2 BY ADV. SRI.JITHIN PAUL VARGHESE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON0207-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 230 of 2014 (O) -------------------------- APPENDIX PETITIONER(S)' EXHIBITS ---------------------------- EXHIBIT P1 : TRUE COPY OF THE PLAINT IN OS1192013 ON THE FILES OF SUB COURT, PERUMBAVOOR. EXHIBIT P2 : TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE RESPONDENTS IN OS1192013 OF SUB COURT, PERUMBAVOOR. EXHIBIT P3 : TRUE COPY OF THE COMMISSION REPORT DT.22-11-2013 FILED IN OS1192013 OF SUB COURT, PERUMBAVOOR. EXHIBIT P4 : TRUE COPY OF THE PETITION FILED BY THE PETITIONER IN OS1192013 OF SUB COURT, PERUMBAVOOR. EXHIBIT P5 : TRUE COPY OF THE IMPUGNED ORDER
DATED4H JANUARY 2014 IN OS1192013 OF SUB COURT, PERUMBAVOOR. EXHIBIT P6 : TRUE COPY OF THE 'A DIARY ENTRY' MADE WITH RESPECT TO OS1192013 OF SUB COURT, PERUMBAVOOR. RESPONDENT(S)' EXHIBITS : NIL. ------------------------------ //TRUE COPY// P.S. TO JUDGE V.CHITAMBARESH, J.
--------------------- O.P (C) No.230 of 2014 --------------------- Dated this the 2nd day of July, 2014
JUDGMENT
The petitioner who is the plaintiff in O.S.No.119/2013 on the file of the court of the Subordinate Judge of Perumbavoor is the husband. The first defendant in the suit is his wife and the second defendant is one of the daughters born in the wed-lock. The principal prayer in the suit is for a declaration that the plaintiff is the true owner in possession and enjoyment of the plaint schedule property. The same is a non-residential premises where a dental clinic of the petitioner is housed. The second prayer in the suit is to set aside the settlement deed executed by the first defendant in favour of the second defendant. Injunctive reliefs are also sought restraining the defendants from trespassing into the plaint schedule property or otherwise inducting tenants therein. Para VIII of the plaint can be profitably extracted hereunder:- "The plaint schedule property was purchased in the name of the 1st Defendant as a TRUSTEE of the Plaintiff, as she enjoyed a fiduciary relationship with the plaintiff. The entire purchase money was paid by the Plaintiff to O.P (C) No.230/2014 2 the vendor of the property viz. Sri.Ulahannan. It was so purchased because the plaintiff was the only child of his father - Sri.Thomas, who had about 19 acres of land as per Partition Deed No.813/1115 of Aikkaranad (Puthencruz) Sub Registry. During that period, State of Kerala was witnessing the implementation of the Land Reforms and therefore as an advance planning of the future, the plaint schedule property was purchased in the name of the 1st defendant, as a TRUSTEE of the plaintiff. The plaint schedule property was registered in the name of the 1st defendant because she was the wife of the plaintiff who had a fiduciary relationship with him." Thus the specific case of the plaintiff is that the property belongs to him even though it was purchased in the name of the first defendant with whom he enjoyed a fiduciary relationship. The second defendant was impleaded in the suit only to make the decree binding on her since the property had been transferred in her favour. The lis is essentially between the parties to the marriage with respect to the property of either of them. (Both the husband as well as the wife traces title to the plaint schedule property in themselves).
2. I have no doubt in my mind that the suit O.P (C) No.230/2014 3 will lie only in the Family Court in view of Section 7 (1)(c) of the Family Courts Act, 1984 which is extracted hereunder:- 7 Jurisdiction - (1) Subject to the other provisions of this Act, a Family Court shall - (a) x x x x (b) x x x x (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. This Court has in Shini v. George and others [1997 (1) KLJ573 had occasion to observe as follows:- "5. When a wife sues her husband for recovery of her property or which she claim to be her property, obviously the suit could be tried and disposed of only by the Family Court and when in such a suit the wife is obliged to add a close relative or the husband or even a stranger on the allegation that the husband had made over the property to that close relative or to stranger, it will be too much to hold that the jurisdiction of the Family Court is ousted to deal with the claim of the plaintiff in view of the mere presence of the stranger or the close relative of the husband." O.P (C) No.230/2014 4 Again a Division Bench of this Court in Vasumathi v. Valsan [2011 (3) KLT638 considered the jurisdiction of the Family Court and observed as follows:- "20. ......Explanation (a) and (c) refer the parties to a marriage. Such disputes under (a) and (c) must be between the parties to the marriage. If the real dispute is between the parties to the marriage, the fact that there are other parties also arrayed in the suit is irrelevant. A party to a marriage cannot nullify the jurisdiction of the Family Court under explanation (c) by arraying one more party to the array of parties. According to us, their position in the array of parties is also not crucially relevant so long as the suit or proceedings in substance and in its core is between the parties. Application of clause (C) cannot be decided in a myopic manner by ascertaining the position of the parties on the array. They may be on opposite sides or may be together on one side on the array, but the suit or proceedings does not lose its character as one "between the parties" because they happen to be arrayed together on one side on the array. In a dispute like the one in this case, merely because the dispute between the parties is brought before the Court by another mercenary or name lender to O.P (C) No.230/2014 5 one of the spouses, the suit or proceedings cannot lose its character as one between the parties to the marriage. A purposive interpretation is warranted and when so reckoned, the position in the party array cannot be given undue importance. A suit/proceedings does not lose its essential character as one between parties merely because that proceedings is initiated by a name lender to one of the parties who on his own showing has no dispute with one of the spouses." The above decision though rendered in the context of Section 7(1)(d) of the Family Courts Act, 1984 applies on all fours to the present case falling under Section 7(1)(c) as well.
3. It is trite law that the jurisdiction of the court is decided on the basis of the averments in the plaint alone. The plaintiff (husband) asserts that the plaint schedule property belongs to him exclusively though purchased in the name of the first defendant (wife). The second defendant (daughter) has been impleaded as an eo-nominee party in order to make the decree binding on her. The contention that the second respondent is the ostensible owner of the property as O.P (C) No.230/2014 6 on the date of the suit has little relevance in deciding the question. The court of the Subordinate Judge was fully justified in returning the plaint to be presented before the Family Court having jurisdiction.
5. I do not find any error of jurisdiction in the order impugned warranting interference in this supervisory jurisdiction. The plaint on being re- presented to the Family Court within a period of two weeks from today shall be proceeded with in accordance with law. The Original Petition fails and is dismissed. No costs. Sd/- V.CHITAMBARESH, Judge. nj.