Karnataka High Court
Nagaraj And Another vs Ammayamma on 29 June, 2001
Equivalent citations: I(2002)DMC439, ILR2001KAR4004, 2001(5)KARLJ516
Author: Tirath Singh Thakur
Bench: Tirath Singh Thakur, D.V. Shylendra Kumar
JUDGMENT Tirath Singh Thakur, J.
1. This miscellaneous first appeal arises out of a decree passed by the Additional Principal Judge, Family Court, Bangalore, in O.S. No. 98 of 1987 restraining the defendants-appellants herein from interfering with the possession of the plaintiff/respondent over the suit schedule property.
2. The respondent claims to be the lawfully wedded wife of one Shri Muniswamappa, father of appellant 1 and the father-in-law of appellant 2. O.S. No. 3272 of 1983 was filed by her initially before the 12th Additional City Civil Judge, Bangalore for a decree for permanent prohibitory injunction restraining the said Shri Muniswamappa and the appellants herein from interfering with the peaceful possession of the plaintiff-respondent over the suit schedule property. With the coming into force of the Family Courts Act, the said suit was transferred to the Family Court for trial and disposal, where it was renumbered O.S. No. 98 of 1987 and eventually decreed by the impugned judgment.
3. The plaintiffs case as set out in the plaint is that her husband, deceased Muniswamappa was married thrice, the respondent being second out of the three wives. Her further case is that since relations between the respondent and the third wife of Muniswamappa did not remain cordial, Muniswamappa, put the plaintiff/respondent in possession of the suit schedule property comprising a house with an open site in which the respondent has been living ever since the year 1965-66. According to her she has been carrying on business in the open space attached to the house by using the same as a fuel depot. A licence was also issued in her favour for that purpose by the Corporation. She was also tethering cattle on a part of the suit property and eking out a living by vending milk. The plaint went on to state that Muniswamappa had at the instigation of his son and son-in-law, appellants herein started interfering with her peaceful possession and enjoyment of the suit schedule property. They were, she alleged fabricating documents in an attempt to throw her out of the suit property forcing the plaintiff to seek the protection of the Court in the suit instituted by her.
4. The written statement tiled by the defendants denied the allegations made in the plaint and inter alia alleged that the plaintiff-respondent was not the legally wedded wife of Muniswamappa but is kept mistress. The allegation that the plaintiff was running a fuel depot in the suit property was also denied and it was alleged that Mu-niswamappa was himself in possession of the said property. It was alleged that although she was allowed to occupy the property and carry on business as a concubine of Muniswamappa she was not entitled to any protection against interference with her possession especially when Muniswamappa was ready and willing to maintain her.
5. On the pleadings of the parties, the Trial Court framed the following five issues.-
"1. Whether the plaintiff proves that the suit schedule property was given to her by first defendant to live separately and to carry on her business and as such she is in lawful possession of the same on the date of suit?
2. Does she further prove that the defendants obstructed her possession?
3. Is plaintiff entitled to the injunction sought for?
4. What order? What decree?
5. Additional Issue.--Does defendant 2, prove that this Court has ceased to have jurisdiction over the matter involved in this case and the suit is therefore liable to be dismissed"?
6. In support of her case, the plaintiff stepped into the witness-box besides examining P.W. 2-Shri Appi Reddy. The defendants did not examine any witness apart from getting their own statements recorded. Appreciation of the oral and documentary evidence, assembled by the parties led the Trial Court to hold that the plaintiff/respondent and late Shri Muniswamappa, had cohabited for a long time and that persons known to them had treated them as husband and wife. The plaintiff was held to be in peaceful possession of the suit schedule property for a considerable length of time hence entitled to an injunction restraining the defendants from interfering with the same. Issue 5, relating to the jurisdiction of the Court to try the suit was also held against the defendants and the suit of the plaintiff decreed with costs.
7. Appearing for the appellants Mr. Rao, argued that the finding of the Family Court in regard to Issue 5, was erroneous and unsustainable. He submitted that the jurisdiction of the Family Court was in terms of Section 7 of the Family Courts Act, limited to trial of suit and proceedings enumerated thereunder. The suit filed by the respondent had according to the learned Counsel, ceased to be a matter within the jurisdiction of the Family Court after the death of Muniswamappa, the alleged husband of the plaintiff.
8. Section 7 of the Family Courts Act, reads thus.-
"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 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 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".
It is evident that the Family Court is competent to exercise jurisdiction in respect, of suits and proceedings detailed in the explanation to subsection (1) (supra). Clauses (c) and (d) of explanation are in the instant case relevant. While clause (c) envisages proceedings between the parties to a marriage with respect to the property owned by them or either of them clause (d). envisages a suit or proceeding, for an order of injunction arising out of a marital relationship. The suit filed by the plaintiff-respondent in the instant case involved determination of the right of the plaintiff qua the suit property which was according to her owned by Muniswamappa, her husband but assigned to her exclusively for her use and occupation. It was therefore a suit which clearly fell under clause (c) of the explanation on the date the same was instituted and transferred to the Family Court. Even assuming that after the death of Mu-niswamappa the suit would stand excluded from the purview of clause (c), yet, it could be tried and disposed of by the family Court having regard to the nature of the dispute, raised in the same; and the fact that the same would fall squarely under clause (d) of the explanation. The suit was for injunction which was in turn claimed in circumstances arising out of a marital relationship between the plaintiff and the deceased Muniswamappa. The essence of the controversy even after the death of Muniswamappa, related to her being the wife of Muniswamappa and the latter providing for her residence in a part of the property owned by him. The Trial Court had in the background of the allegations made in the proceedings to consider whether there was any marital relationship between the plaintiff and Muniswamappa, if so, whether the possessory or other rights claimed by the plaintiff, over the suit property were relateable to that relationship and whether an injunction as prayed for by ber could be granted. These issues remained relevant for adjudication even after Muniswamappa had died and the cause of action to file the suit for a prohibitory relief died with him. The Trial Court was in that view justified in deciding Issue 5 against the defendants, appellant herein and holding that the suit continued within its jurisdiction. The decisions of this Court in (1) Arokiamary v Sam-pammal; (2) Venkatappa v Chairman, Family Courts, Bangalore and Others; (3) Smt. A.S. Gowri v B.R, Satish, relied upon by Mr. Vish-wanath, do not in our opinion advance his case as they do not state the legal position differently.
9. It was then argued by Mr. Vishwanath, that even according to the plaintiffs own version the property in question was owned by Muniswamappa. He urged that assuming that Muniswamappa had put the plaintiff in possession of the property as claimed by her, she could not according to the learned Counsel claim an injunction against Muniswamappa who was the real owner of the property. It was also contended that there was no evidence to show that the plaintiff was the legally wedded wife of Muniswamappa so as to confer any right upon her qua the property owned by him or any portion thereof.
10. The Trial Court has come to the conclusion that the plaintiff and Muniswamappa had cohabited for a long period and lived together as husband and wife. That position was in fact supported by no less a person than P.W. 2-Appi Reddy, who happens to be Muniswamappa's brother-in-law. According to the said witness the plaintiff was the legally wedded wife of Muniswamappa and that he had attended their wedding. There is nothing in the cross-examination of the witness to shake his credibility nor do we see any reason why the statement made by a close relative of the deceased in relation to a matter about which he would have certainly known should be disbelieved. That apart there is considerable corroborate on to the version of the plaintiff and her witness forthcoming from the documents produced by her. These documents comprise among others a Demand Promissory Note to which Mu-niswamappa was a party in which the plaintiff has been described as his wife. Show-cause notice issued by the Corporation Authorities marked Ext. P. 8, also describes plaintiff as wife of Muniswamappa besides the enumeration form which too described her as the wife of Muniswamappa. All these circumstances, were in our opinion sufficient to conclude that the plaintiff and Muniswamappa had lived as husband and wife and that people had known and treated them as such. The fact that Muniswamappa admits having lived with and maintained the plaintiff as Mistress, lends significant support to the version of the plaintiff that they had cohabited together for a long time. We have therefore no difficulty in affirming the finding recorded by the Trial Court insofar as the plaintiff being the legal wedded wife of Muniswamappa is concerned.
11. The next question then is whether the arrangement made by Muniswamappa, for the separate residence of plaintiff, and her possession over the premises, provided to her, would entitle her to prevent any interference with the same. It is evident from the material on record that the plaintiff had been in possession of the suit premises for a considerable length of time. Her possession over the suit property had remained peaceful and uninterrupted. She had thus acquired a possessory title over the property which would entitle her to protection against interference with the same. That apart the provision made by Muniswamappa for separate residence of the plaintiff could be legitimately related to his obligation under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. That provision recognises the right of a Hindu wife to demand a separate residence in situations enumerated thereunder. One of those situations is where the husband had another wife living as was the case with Muniswamappa. Having made a provision and put the plaintiff-wife in possession of the suit property, neither the husband nor any one claiming through him could interfere with the possession of the wife. It is not necessary for us to examine whether the wife's possession over the property assigned to her for her separate residence or in discharge of the husband's obligation to arrange her maintenance could in view of Section 14 of the Hindu Succession Act, 1956 get enlarged to an absolute estate. All that we need say is that the respondent-wife was in the light of the facts found by the Trial Court entitled to prevent any interference with her possession over the suit property till such time the substantive rights of the parties qua the property in dispute were adjudicated upon by a competent Court in a proper civil action brought for that purpose. In the circumstances we see no reason to interfere with the judgment and decree under challenge.
12. This appeal has no merit which fails and is hereby dismissed but without any orders as to costs.