Madras High Court
M.Kasthuri vs R.Kasthuri on 15 June, 2015
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.06.2015 CORAM THE HONOURABLE MS. JUSTICE R.MALA S.A.No.725 of 2005 Judgment reserved on 08.06.2015 Judgment pronounced on 15.06.2015 1.M.Kasthuri 2.G.Ramesh 3.Philomina .. Defendants/Appellants/Appellants Vs 1.R.Kasthuri 2.G.Rajkumar 3.G.Tamilselvan 4.G.Jhansi (minor) .. Plaintiffs /Respondents/Respondents Prayer: Second appeal filed under Section 100 of CPC against the Judgment and Decree dated 30.01.2005 in A.S.No.164 of 2004 on the file of the learned Additional District and Sessions Judge, Fast Track Court IV, Chennai confirming the Judgment and Decree dated 07.01.2004 in O.S.No.222 of 1998 on the file of the learned XV Assistant Judge, City Civil Court at Chennai. For Appellant : Mr.JRK.Bavanantham For Respondents R1 to R3 : Mr.R.N.Amarnath R5 : Mr.P.K.Sivasubramanian JUDGMENT
This second appeal arises out of the Judgment and Decree dated 30.01.2005 in A.S.No.164 of 2004 on the file of the learned Additional District and Sessions Judge, Fast Track Court IV, Chennai confirming the Judgment and Decree dated 07.01.2004 in O.S.No.222 of 1998 on the file of the learned XV Assistant Judge, City Civil Court at Chennai.
2.The averments made in the plaint are as follows:-
The first plaintiff is the mother of the plaintiffs 2 to 4. The first plaintiff married late A.Gunaseelan S/o.V.M.Aalai on 14.06.1981 according to Hindur rites and ceremonies. The third defendant is the mother of late A.Gunaseelan. The first plaintiff's husband late A.Gunaseelan worked as Weighing man (Packer) at Amutham Retail Store at Ciali Street, Puthupet, Chennai-2. The said late A.Gunaseelan died on 13.09.1996 and he was buried at the burial ground at Mylapore by the plaintiffs and their relatives. Thereafter, the first plaintiff applied for legal heir certificate before the Tahsildar, Mylapore Triplicane. By certificate dated 11.10.1996 in R.Dis/29676 the Tahsildar certified that the plaintiffs and the third defendant are the legal heirs of late A.Gunaseelan. Pursuant to that, the plaintiff received the amounts from Life Insurance Corporation of India. At that time, in order to claim job illegally from the fourth respondent and to cause wrongful loss to the plaintiffs, the defendants 1 and 2 made illegal claim before the Tahsildar stating that the first defendant is the wife of late A.Gunaseelan and the second defendant is their son. The Tahsildar without holding any enquiry issued a legal heir certificate in favour of the defendants 1 and 2. The first plaintiff made a complaint before the Collector, Chennai District questioning the certificate issued in favour of the defendants 1 and 2. The District Collector by proceedings 22/67333/96 datd 28.06.1997 cancelled both the certificates and referred the parties before the Civil Court. In view of the dispute between the plaintiffs and the defendants 1 and 2, the fourth respondent withheld the benefits due to the plaintiffs as the heirs of Late A.Gunaseelan. Hence, the plaintiffs filed a suit in O.S.No.222 of 1998 for declaration of the first plaintiff as legally wedded wife and the plaintiffs 2 to 4 as the legitimate children of late A.Gunaseelan and the plaintiffs and the third defendant/mother as the legal heirs of late A.Gunaseelan S/o.V.M.Aalai.
3.The gist and essence of written statement filed by the defendants are as follows:
The defendants submitted that the real fact is that the first defendant is the legally wedded wife of late A.Gunaseelan, who got married on 30.04.1979 itself. It was an arranged marriage which was conducted as per rites and with the blessings of elders. Out of their lawful wedlock, two children were born, namely, Ramesh/the second defendant and one daughter by name Gunasundari. During his lifetime, the said Gunaseelan was residing with the first defendant and their two children and his mother/third defendant. On 13.09.1996, the said Gunaseelan died leaving the defendants 1 to 3 in the lurch. At the time of his death, the plaintiffs along with some unlawful elements came to the house of the first defendant and claimed the body of the said Gunaseelan. But the last rites to the said Gunaseelan was done only by the second defendant, namely, Ramesh who is the son of late A.Gunaseelan. The defendants submitted that the real fact is that the first plaintiff is the wife of one P.Munusamy and the plaintiffs 2 to 4 were born to the said Munusamy. The said Munusamy died on 13.08.1992. After his death, the plaintiffs received the terminal benefits of late Munusamy from the Corporation of Chennai. The first plaintiff's son, namely, Sivarajan has been appointed in the same division, Corporation of Chennai on compassionate ground. When the first plaintiff's husband Munusamy died on 13.08.1992, it is highly false to stated that the first plaintiff got married to late Gunaseelan on 14.06.1981. It is further submitted that the plaintiffs wants to make an unlawful claim over the terminal benefits of late A.Gunaseelan in an unlawful means. Hence, they prayed for dismissal of the suit.
4.The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1 to P.W.3, D.W.1 to D.W.3 and Exs.A1 to A19 and Exs.B1 to B9, decreed the suit. Aggrieved against the judgment and decree of the trial court, the defendants preferred an appeal in A.S.No.164 of 2004 on the file of the learned Additional District and Sessions Judge, Fast Track Court IV, Chennai.
5.The learned First Appellate Court has considered the argument advanced on either side and framed necessary point for consideration and confirmed the Judgment and Decree passed by the Trial Court and dismissed the appeal. Against the Decree and Judgment of the first Appellate Court, the present second appeal has been preferred by the defendants.
6.At the time of admission of the above second appeal, the following substantial questions of law were framed for consideration.
"(i)Whether Civil Court has jurisdiction to try a suit for declaration as to the validity of a marriage or as to the marital status of any person under Sec. 7(1) explanation?
(ii)Whether the finding of the Trial Court is perverse since no oral and documentary evidence adduced on either side was considered and finding given in respect of all the issues framed by the Trial Court?
(iii)Whether the first appellate Court, being the last Court of facts, failed to advert its mind into the facts of the case, both oral and documentary evidence?
(iv)Whether the Appellate Court was right by not probing into the correctness of the finding arrived at by the Trial Court while exercising the power under Or.41 and Rule 33 r/w. Sec. 96 of CPC?
(v)Whether mere declaratory suit is maintainable under Sec. 34 of the Specific Relief Act?"
7.Challenging the concurrent judgment and decree of both the Courts below, the learned counsel for the appellants/defendants would submit that the Civil Court has no jurisdiction to decide the matter. He would further submitted that the respondents herein as plaintiffs filed a suit for declaration of the first plaintiff as legally wedded wife and the plaintiffs 2 to 4 as legitimate children of late A.Gunaseelan and the plaintiffs and the third defendant/mother as the legal heirs of late A.Gunaseelan. But the father of the said late A.Gunaseelan, who was examined as D.W.2 has deposed that P.W.1, namely, the first plaintiff is not his daughter-in-law. That factum was not considered by the Trial Court. He further submitted that the first respondent is the wife of one Munusamy and she gave birth to one Sivaraj, who was examined as P.W.2. To prove the same, birth certificate of P.W.2 has been as Ex.B9. But the respondents herein filed the birth certificate of P.W.2, which was marked as Ex.A17, wherein the date of birth of P.W.2 was mentioned as 06.02.1972 and father's name was mentioned as Munusamy. The said Munusamy died on 13.08.1992, which was evidenced by Ex.B8. That factum was also not considered by the Trial Court. He would further submitted that the first appellant married the said late A.Gunaseelan on 30.04.1979 as pe Ex.B1 and so, her marriage with the said Gunaseelan was much before the marriage between the first respondent and the deceased A.Gunaseelan. That factum was also not considered by the Trial Court. Hence, he prayed for setting aside the judgment and decree passed by both the Courts below. To substantiate his argument, he relied upon the decision reported in 2004 (2) CTC 638 (Renubala Moharana and another vs. Mina Mohanty and others).
8.Refuting the same, the learned counsel appearing for the respondents/plaintiffs would submit that since the appellants herein has raised a plea that the first respondent married one Munusamy and their son was examined as P.W.2, his birth certificate was marked as Ex.A17, which shows that only the first plaintiff/first respondent and plaintiffs 2 to 4/respondents 2 to 4 are the children of late A.Gunaseelan. He would further submit that the Civil Court has jurisdiction to entertain the suit. Hence, he prayed for dismissal of the appeal. To substantiate his arguments, he has also relied upon the same decision relied upon by the learned counsel appearing for the appellants.
9.Considered the rival submissions made on both sides and also perused the typed set of papers.
10.Now, this Court has decide whether the Civil Court has jurisdiction to entertain the suit? The appellants herein raised a plea that the Civil Court has no jurisdiction to entertain the suit. It is true that the appellants raised the plea not before the Trial Court but they have raised the plea before the First Appellate Court. So, it is the duty of the First Appellate Court to consider the fact whether the Civil Court has jurisdiction to decide the matter once the Family Court has been constituted. The judgment, decree or any order passed by the Court does not having jurisdiction is non-est in the eye of law. So, it is the duty of the Court to consider whether the Civil Court has jurisdiction to decide the matter.
11.At this juncture, it is appropriate to consider Chapter III of the Family Court Act, 1984, which deals with the jurisdiction. It is also appropriate to incorporate Section 7 of the Family Court Act, which reads as follows:
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 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 subsection are suits and proceedings of the following nature, namely:
a.a suit or proceeding between the parties to a marriage for decree of a nullity 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 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 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.
12.It is also appropriate to incorporate the reliefs sought for by the respondents/plaintiff. In the first prayer, the first respondent/first plaintiff sought for marital status. So, it comes under Section 7(1) Clause (b) of Explanation of the Family Court Act. Further, in the second prayer, the respondents 2 to 4/plaintiffs 2 to 4 sought for declaration as legitimate children of the deceased A.Gunaseelan. So, it comes under Section 7(1) Clause (b) of Explanation of the Family Court Act. Hence, I am of the view that as per Section 7(1) Clauses (b) and (e) of Explanation of the Family Court Act, the Family Court have jurisdiction to entertain the suit.
13.It is also appropriate to consider the decision relied by both the learned counsel appearing on either side reported in 2004 (2) CTC 638 (Renubala Moharan and another vs. Mina Mohanty and others), wherein in paragraph Nos.5 and 6, it was held as follows:
5.After trial, the Family Court, by its judgment dated 2nd May, 2000 dismissed the petition on the ground that the petition itself was not maintainable in the light of Section 7 of the Family Courts Act. As regards the prayer for guardianship, the learned Judge observed that respondent No.1 being the natural mother against whom there was no adverse allegation, there was no need to appoint any other person as guardian. On appeal to the High Court, the Division Bench of the High Court agreed with the conclusion of the Family Court that the first relief sought for by the appellants cannot be granted by the Family Court for the reason that declaration as to the legitimacy of any person without any claim of marital relationship is not directly entertainable by the Family Court. In view of the admitted fact that Samuel Maharana and respondent No.1 were not married, the child allegedly born through Samuel Maharana can never be a legitimate child. However, the High Court reversed the order of the Family Court insofar as the petition related to the custody of the minor. The High Court held that the prayer for guardianship and custody is entertainable by the Family Court under Explanation (g) to Section 7(1) of the Act. While directing the Family Court to consider the prayer for guardianship and/or custody of the minor, the High Court, having noted the fact that the evidence adduced on behalf of the parties was not discussed and considered, also observed that "in order to determine the question of guardianship or custody of the minor, if it becomes collaterally necessary to consider the question of status of the minor or the parties to the proceedings, the Family Court may be required to consider the same and give its finding". In effect, the High Court held that while deciding the petition for guardianship/custody, the question of status or inter se relationship of the parties can be incidentally considered by the Family Court.
6.The view taken by the High Court as regards the first prayer has been assailed before us. Under Section 7(1) read with Clause (e) of the Explanation, a suit or proceeding for a declaration "as to the legitimacy of any person" is within the jurisdiction of the Family Court. According to the appellants, the child was born on account of extramarital relationship of Respondent No.1 with their sonthe late Samuel Maharana. Accepting the case of the appellants, the child cannot obviously be treated as a legitimate child of Samuel and Meena Mohanty (R1). The question of status of the child in relation to the parties to the petition can be incidentally gone into by the Family Court if necessary while deciding the guardianship petition. That liberty has been granted to the Family Court. However, as rightly held by the Family Court and the High Court, the declaratory relief as regards the illegitimacy of the child cannot be granted. In effect, that is what the appellants want under prayer No.1. We therefore see no ground to interfere with the judgment under appeal. Appeal is dismissed without costs.
14.The facts of the above citation is that the appellants are the parents of one Samuel Moharana, who developed intimacy with the first respondent Mina Mohanty, who has already married one Kannu Charan Patnaik and both of them lived together and on account of their cohabitation, a male child was born to them on 25th January, 1991. They named the child as Pallv Pratik Moharana alias Pupun. The first respondent got the birth certificate of the child showing the name of the child as Partha Sarathi Patnaik and father's name was mentioned as Kannu Charan Patnaik. Since the said Samuel Moharana died on 07.11.1992 under mysterious circumstances, the second respondent executed a document accepting that Pupun was born through Samuel and disclaiming his parentage. The child was also entrusted to the appellants and the first respondent was frequently visiting the house of the appellants to see the child. On one such occasion, the first respondent sent one of her relation to bring the child to her place with a promise to send him back on the next day. She has not sent back the child. A case has been filed before the Family Court, wherein it was held that the Family Court has no jurisdiction to grant the relief sought for by the appellants for the reason that declaration as to the legitimacy of any person without any claim of martial relationship is not directly entertainable by the Family Court. But it was specifically mentioned that Section 7(1) read with Clause (e) of the Explanation, a suit or proceeding for a declaration as to the legitimacy of any person is within the jurisdiction of the Family Court. According to the appellants, the child was born on account of extramarital relationship of the first respondent with their son, late Samuel Moharana. In such circumstances, I am of the view that in the above citation, it was specifically mentioned that this case has to be dealt with only by the Family Court.
15.Further, in the present case even though the appellants herein has not raised the plea that Civil Court has no jurisdiction to entertain the suit before the Trial Court, it was raised before the First Appellate Court. The First Appellate Court, which is the last fact finding Court, ought to have considered the same. But, it has not considered the same. In such circumstances, I am of the view that it is a fit case for setting aside the judgment and decree of the both the Courts below stating that the judgement, decree or any order passed by the Court without having jurisdiction is non-est in the eye of law. Hence, the judgment and decree of both the Courts below are hereby set aside.
16.In fine, Second appeal is allowed.
The decree and judgment passed by both the Courts below are hereby set aside.
The case is forwarded to the Court having the jurisdiction i.e. The Principal Family Court, Chennai for disposal in accordance with law.
There is no order as to costs.
15.06.2015 Index:Yes Internet:Yes cse To
1.The Additional District and Sessions Judge, Fast Track Court IV, Chennai.
2.The XV Assistant Judge, City Civil Court at Chennai.
3.The Record Keeper, V.R.Section, High Court, Chennai.
R.MALA, J.
cse Pre-delivery Judgment in S.A.No.725 of 2005 15.06.2015