Kerala High Court
Krishnan Nambudiri vs Thankamani on 18 February, 1994
Equivalent citations: II(1994)DMC223
JUDGMENT L. Manoharan, J.
1. First defendant in O.S. 246 of 1984 of the Sub Court, Thrissur, a suit for partition, filed LA. 2143 of 1993 for transferring the suit to the Family Court, Ernakulam. The said petition was dismissed by the learned Sub Judge. The revision petitioner challenges the said order in this revision.
2. Plaintiff/respondent is the wife of the first defendant-revision petitioner. She instituted the suit for partition and allotment of her 1/3rd share in the plaint schedule property. Second defendant is the daughter of plaintiff and first defendant. The respondent alleged that herself, the revision petitioner and the second defendant are entitled to 1/3rd each in the plaint schedule property. But the first defendant maintained that his sisters are also entitled to share and that, the tenants of the rooms and his sisters are also necessary parties. Accordingly they were also impleaded, the sisters of the revision petitioner are defendants 3 to 5, and defendants 6 and 7 are the tenants, in the counter affidavit to CM.P. 3657 of 1993 filed by the revision petitioner for interim stay, the respondent mentions the circumstance which necessitated the impleadment of defendants 3 to 7. In that counter affidavit, the respondent would maintain that after the institution of the suit defendants 3 to 5, the sisters of the first defendant instituted O.S. 165 of 1985 for partition without impieading the respondent and obtained a decree. Therefore, the respondent instituted O.S. 246 of 1986 for declaration that preliminary decree in O.S. 165 of 1985 is invalid and not binding on her. It is further averred in the counter affidavit that O.S. 246 of 1984 from the order in which the revision arises, and O.S. 246 of 1986 were allowed to be jointly tried and that after recording the evidence in the case, the said petition for transfer of the case to the Family Court was filed.
3. According to the learned Counsel for the revision petitioner as per Explanation (c) to Section 7(1) read with Section 8 of the Family Courts Act, 1984 (for short 'the Act') the Sub Court has no jurisdiction to try the suit and therefore the suit has to be transferred to the Family Court. Section 7(1) of the Act so far as the same is relevant reads.
"7. Jurisdiction--(1) Subject to the other provisions of this Act, A Family Court shall--
(a) have and exercise all the jurisdiction exereisable 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) -----------
(b) --------------
(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) ------------
(e) ------------
(f) ------------
(g) --------------"
Section 8 of the Act enjoins that where a Family Court has been established for any area, no District Court or any Subordinate Civil Court shall, in relation to such area have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to Sub-section (1) of Section 7 of the Act. So the main question for consideration is whether a suit of this nature will fall under Clause (c) of the Explanation to Section 7(1) of the Act. If the suit will attract Clause (c) of Explanation, then by virtue of Section 8 of the Act, the suit has to be transferred to the Family Court within whose jurisdiction the cause of action arose. The general principle is, every presumption should be made in favour of the jurisdiction of a Civil Court. In other words, the exclusion of jurisdiction of the Civil Court cannot be readily inferred. Exclusion of jurisdiction of the Civil Court should be either explicitly expressed or clearly implied. In the decision in Abdul v. Bhawani (AIR 1966 SC 1718) the Supreme Court observed :
"It is settled principle that it is for the party who seeks to oust the jurisdiction of a Civil Court to establish his contention. It is also equally well settled that & statute ousting the jurisdiction of a Civil Court must be strictly constructed."
In the decision in V.L.N.S. Temple v. I. Pattabhiraml (AIR 1967 SC 781) also this principle is reiterated. Clause (c) of the Explanation to Section 7(1) of the Act takes into its fold, a suit or proceeding between the parties to a marriage with respect to the property of the parties of either of them. Therefore, it is not enough that the suit is between the parties to the marriage; but the same should be with respect to the property of the parties or of either of them. Here, the subject matter of the suit belongs not only to the parties to the marriage, the plaintiff and the first defendant, but belongs to others also. In the context, it is necessary to remember that it is the contention of the first defendant-revision petitioner that his sisters are also entitled to a share. When contention is others are also interested in the subject matter of the suit like a suit for partition and they are also in the party array, simply because among the parties a husband and wife are also arrayed on rival sides that cannot attract Clause (c) of Explanation to Section 7(1) of the Act. To over come the said position, the learned Counsel for the revision petitioner relied on the decision in Shorab-Modi v. Mansata Film Distributors (AIR 1957 Cal. 727) wherein while considering the question of stay under Section 10 CPC the Court held that "same parties" mentioned in Section 10 CPC would mean "the parties" as between whom the matter substantially in issue has arisen and has to be decided", and that complete identity of either the subject matter or the parties is not required. Evidently, the said decision cannot have any application with respect to a matter arising under the Act. Simply because for the purpose of stay under Section 10 CPC complete identity of the parties is not required, that cannot be extended in interpreting Section 8 read with Section 7 of the Act which concerns the jurisdiction of Court. As noticed, a statute ousting the jurisdiction of the Civil Court has to be strictly construed.
5. What the learned Counsel for the revision petitioner urged was, since the second defendant did not contest the matter and the contest being only between the husband and wife, Clause (c) of Explanation to Section 7(1) of the Act would be applicable. That argument cannot be accepted for the simple reason that as per Clause (c) of Explanation to Section 7(1) of the Act, which has to be strictly interpreted, the subject matter of the litigation should belong to the parties to the marriage or of either of them. As noticed here the case is the property belongs to others also, then certainly Clause (c) of Explanation to Section 7(1) of the Act will have no application. When that is the finding, Section 8 of the Act cannot oust jurisdiction of the Civil Court to try the suit. The conclusion reached by the learned Sub Judge does dot call for any interference. The revision is without merit and the same is liable to be dismissed which accordingly is dismissed.