N. Kumar, J.
1. This is defendants appeal against the judgment and decree passed by the Family Court, decreeing the suit of the plaintiffs for partition and separate possession and perpetual injunction.
2. The case of plaintiffs is that the 1st plaintiff is legally wedded wife of the 1st defendant. The plaintiffs No.2 to 5 are the children ' born to them. The 1st defendant has deserted the plaintiffs. The 1st plaintiff performed the marriages of plaintiffs No.2 to 4 by raising loan from private persons. The 1st plaintiff is indebted to creditors. The 1st defendant agreed to make payment of the loan amount to discharge the said loan. Now he has changed his attitude and failed to repay the amount to the creditors.
3. The 1st defendant has married one, Sharadabai. She is the second wife to the 1st defendant. He entered into second marriage without the knowledge and consent of the plaintiffs. Now the 1st defendant is completely under the control and guidance of his second wife, Sharadabai. The I ''defendant is not providing any maintenance or giving any share in the suit schedule properties. The plaintiffs are the members of the Hindu undivided family of the 1st defendant. The suit properties are the ancestral and joint family properties of the plaintiffs and the 1st defendant. The 1st defendant has no independent right to transfer or alienate the suit schedule properties to any other person. As there was a rumour that the 1st defendant is trying to alienate the properties, to safeguard their interest, the plaintiffs filed the present suit for partition and separate possession.
4. The 1st defendant filed a detailed written statement interalia contending that the 1st plaintiff is not the legally wedded wife and plaintiffs No.2 to 5 are not born to him. Therefore, the question of deserting them did not arise. He denied the marriage with one Sharadabai and having three daughters and four sons. The plaintiffs are not the members of the Hindu undivided joint family. The properties are standing in the name of Sharadabai. The plaintiffs are not at all concerned with the suit schedule properties any more. The plaintiffs are residing in Panegaon village, taluk and district, Gulbarga. They are not in possession of the joint family properties. They are not entitled to 1/5th share in the suit schedule property. The suit filed by the plaintiffs is bad in law and deserves to be dismissed.
5. The defendants No.2 to 9 who are none other than Smt. Sharadabai and her children were subsequently impleaded as parties to the suit. They filed a separate written statement supporting the stand taken by the 1st defendant. They have denied the relationship between the parties as setout in the plaint. They further contended that the suit is not maintainable before the Family Court at Gulbarga as the Family Court is not having jurisdiction to try the suit for relief of partition under Section 7 of the Family Courts Act, 1984, for short hereinafter referred to as 'the Act'. Therefore, they sought for dismissal of the suit.
6. The trial court framed the following issues:
1. Whether the plaintiffs prove that they are entitled for partition and separate possession of 1/5th share each in the suit schedule properties as contended?
2. Whether plaintiffs prove that they are entitled to declaration that they are the joint owners and possessors of the suit schedule properties alongwith defendant No. 1 as contended?
3. Whether plaintiffs prove that they are entitled to perpetual injunction as prayed?
4. Whether defendant Nos. 1 to 9 prove that the plaintiff No. 1 is not his legally wedded wife and the plaintiff No.2 to 5 are not born to defendant No.l from plaintiff No. 1 as contended?
5. Whether defendant Nos. 1 to 9 prove that the defendant Nos. 1 and 2 are the legally wedded wife and husband and of their wedlock the defendant Nos. 3 to 9 were bom to them as contended?
6. Whether defendant Nos. 2 to 9 prove that the plaintiffs are not the joint owners or nor in possession of the suit properties as contended?
7. Whether defendant Nos. 1 to 9 prove that the plaintiffs have no cause of action and no locus-stand i as contended?
8. Whether defendant Nos. 1 to 9 prove that the court fee paid is not proper and correct as contended?
9. Whether plaintiffs entitled to suit relief as prayed?
10. What order or decree?
Addl. Issue No.l framed on 14-11-2006:
Whether the defendant Nos. 2 to 9 prove that this Court has no jurisdiction to try the suit for the relief of partition under Section 7 of the Family Court Act as contended?
7. The Family court tried the additional issue as preliminary issue. It relied on the judgment of this Court in the case of Sri N. Narasimhaiah v. Smt. B.S. Vimala and Anr. 2006 (4) KCCR 2677 reported in which held that 'once the matrimonial relationship is pleaded between the & parties in the petition, the Family Court has got jurisdiction to try the suit'. Therefore, the Family Court answered the said issue in the negative. The said order was not challenged. Thereafter, the 1st plaintiff was examined as P W. 1 and she produced six documents, which were marked as Exs. P. 1 to P. 6. The 1st defendant was examined asDW.l. The 2nd defendant was examined as DW.2. They have produced seven documents, which were marked as Exs.D 1 to D7.
8. The trial court on appreciation of the oral and documentary evidence on record held that the plaintiffs are entitled to 1/5th share each in the suit schedule properties and they are the joint owners and are in possession along with the 1st defendant and further granted perpetual injunction against the 1st defendant. It also held that the defendants-1 to 9 have failed to prove that the 1st plaintiff is not legally wedded wife of the 1st defendant. They also failed to prove that the 1st and 2nd defendants are the wife and husband. They have failed to prove that the plaintiffs are not the joint owners. Therefore, the trial court decreed the suit of the plaintiffs. Aggrieved by the said judgment and decree of the trial court, the defendants are before this Court.
9. Learned Counsel for the Appellants assailing the impugned judgment and decree contended that the suit is one for partition and separate possession, which is not cognizable by the Family Court as it does not fall within Section 7 of the said Act. Therefore, he contends that the impugned judgment and decree passed by the Family Court is without jurisdiction and nullity and requires to be set aside.
10. Per contra, learned Counsel for the respondents relying on the aforesaid judgment in Narasimhaiah's case, contends that once in the plaint, the matrimonial relationship is pleaded, notwithstanding the denial of the same, the Family Court gets jurisdiction to try such suit. The trial court on consideration of the evidence on record has categorically recorded that the 1st plaintiff is the wife of the 15t defendant and other plaintiffs are their children. Therefore, the Family Court has jurisdiction to pass the decree.
11. Hence, the following points arise for consideration in this appeal:
(1) Whether the Family Court has jurisdiction to entertain the suit for partition by
(a) A wife against her husband, in respect of ancestral and joint family property.
(b) Daughters against their father.
12. From the pleadings and the evidence on record, it is clear that the case of the 1st plaintiff is that, she is the first wife of the 1st defendant and plaintiffs No.2 to 5 are the daughters born to them. They constituted a joint family and a co-parcenery. As the 1st defendant is trying to alienate the properties, it became necessary for them to file the suit for partition to protect their interest and to get legitimate share in the suit schedule properties.
13. The Parliament has enacted the Family Courts Act, 1984 for speedy settlement of family disputes. The object of such enactment was to promote conciliation in and secure speedy settlement of disputes relating to marriage and family affairs and matters connected there with. 'His Act exclusively confers jurisdiction on the Family Courts to resolve the disputes relating to matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of marriage or as to the matrimonial status of any person The Family Court also has been conferred with the jurisdiction to decide the dispute relating to the property of the spouses or of either of them; declaration as to the legitimacy of any person; guardianship of a person or the custody of any minor; maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure. Section 8 of the Family Courts Act excludes the jurisdiction of the Civil Courts to deal with matters which are exclusively to be tried by the Family Court. Even pending proceedings before the Civil Courts and the Magistrate Court shall stand transferred to such Family Court on the date of which it is established. Section 7 of the Act, specifically sets out the proceedings which are cognizable by such Family Courts. Therefore, any matters which are set out in Explanation to Section 7, no Civil Court or Magistrate Court has jurisdiction to try the same, if a Family Court is established in the area. Similarly, the Family Court will have no jurisdiction to entertain a suit or proceeding other than what is stipulated in Explanation to Section 7. It is in this background we have to find out whether a suit for partition filed by the wife against her husband, suit filed by the daughters against their father and his second wife and children in respect of ancestral and joint family properties are cognizable under Section 7 of the Act by the Family Court.
14. Section 7 of the Act, deals with jurisdiction, which reads as hereunder:
7 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 lime 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) 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 of 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 or 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;
(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 the 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.
15. Clause (a) of Sub-section (1) of Section 7 makes it clear that the Family Court will have jurisdiction in respect of the suits and proceedings of the nature referred to in the Explanation. Therefore, unless the suit falls within one of the categories setout in the Explanation, the Family Court gets no jurisdiction. Clause (c) of the Explanation deals with one such category of suit or proceeding between the parties to a marriage with respect to the 'property of the parties' or of 'either ofthem'.
16. Clausc(c) of Explanation to Section 7 specifically deals with property disputes. The dispute should be relating to 'property of the parties' or of 'either of them'. For the Family Court to exercise its jurisdiction two conditions must be satisfied. Firstly, the said dispute should be between the parties to the marriage only; and secondly, the dispute should be in respect of the property of the parties or either of them. Both these conditions must be satisfied before the Family Court can take cognizance of a suit or proceedings under the Act, in respect of property disputes. Therefore, it is clear that the Family Court has no jurisdiction to entertain and try a suit or proceeding claiming a property by persons other than the parties to the marriage. Further, the property in dispute should belong exclusively to the parties or either ofthem. If persons other than the parties to the marriage have an interest in the said dispute, the Family Court has no jurisdiction to adjudicate the dispute. In other words, the parties to the marriage cannot claim right in a property, in which third parties also have interest, before the Family Court.
17. The averments in the plaint are that the plaintiffs are the members of the Hindu undivided family of the 1st defendant, and the suit properties are the ancestral and joint family properties of the plaintiffs and the 1st defendant, and that the 1st defendant has no independent right. Therefore, property dispute is not between the parties to the marriage only, it is a dispute between the parties to the marriage as well as between their children. The subject matter of the suit is not a property exclusively belonging to the parties or either of them. It belongs to the joint family, in which the persons other than the parties to the marriage have an interest. Therefore, the property in dispute does not exclusively belongs to the parties to the marriage or of either of them and persons other than the parties to the marriage have interest in the said properties. Hence, the Family Court has no jurisdiction to adjudicate disputes between persons other than parties to the marriage and the property which does not exclusively belongs to the parties to the marriage or either of them.
18. Therefore, the suit filed by the wife against her husband for partition and separate possession of her share in respect of ancestral and joint family property is not maintainable in the Family Court as admittedly apart from them others who are not parties to the marriage also have interest in the said property. Similarly, the suit filed by daughters against their father for partition is also not maintainable as they are not parties to a marriage.
19. In Sri. Narasimhaiah s case the learned Single Judge of this Court held that 'when the plaint proceeds on the premise that there exist a relationship of husband and wife and if such relationship is pleaded and if a relief which is within one or other sub-clause figuring in the explanation to Sub-section (1) of Section 7 is the subject matter of the suit, the suit is definitely maintainable before the Family Court which has jurisdiction. It is a different aspect that the defendant is disputing the relationship itself, then on such a disputed aspect Court will have to frame an issue but it does not take the said suit out of the jurisdiction of the Family Court.' The said observation was made in the context of the argument that when the defendant in the suit disputes the very matrimonial relationship the Family Court does not get jurisdiction to decide the dispute. In other words, it was contended that the existence of the jural relationship of husband and wife should be admitted by the parties before the Family Court exercises its jurisdiction. Therefore, the question whether the Family Court has jurisdiction to grant a decree for partition in respect of the joint family property was not considered in the said case, though in effect it was held, such a suit is maintainable having regard to the facts of the case as set down in the judgment.
20. Howevet, in respect of property disputes as provided under Clause (c) to the Explanation, mere existence of matrimonial relationship or plea to the said effect would not render the suit maintainable. In addition to the matrimonial relationship the dispute should be relating to the 'property of the parties' or of 'either of them'. If the property in dispute does not exclusively belong to the parties to the marriage or either of them, then notwithstanding the plea regarding matrimonial relationship in the plaint, or even the existence of the matrimonial relationship being admitted, the suit is not maintainable. To this extent the said judgment do not lay down the correct law.
21. Therefore, the learned Family Court Judge was in total error in holding that the suit for partition by wife and her daughters is maintainable against her husband, his second wife and children in respect of ancestral and joint family properties. Hence, we pass the following order-
(a) The appeal is allowed.
(b) The judgment and decree of the trial court is hereby set aside on the ground that the suit for partition was not maintainable and consequently, all the findings recorded on merits is set aside without going into the merits of the claim.
(c) However, it is open to the parties to approach a competent civil court for seeking appropriate relief.
(d) If such a suit is filed, the civil court is competent to go into the disputed question and record its findings on its merit without in any way being influenced by our observations in this order.
(e) Parties to bear their own cost.