IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 34919 of 2008(F) PETITIONER(S): ------------------------ 1. S.VISWANATHAN, AGED 34 YEARS, S/O.SREEDHARAN NAIR, LAKSHMI MANGALATHU VEEDU, NEAR KUDAPPANA KUNNU PANCHAYATH OFFICE, PEROOR KADA, TRIVANDRUM. REP. BY HIS MOTHER T.S.NIRMALAKUMARI THANKACHI. 2. T.S.NIRMALAKUMARI THANKACHI, AGED 75 YEARS, W/O.LATE MR.SREEDHARAN NAIR, LAKSHMI MANGALATHU VEEDU, NEAR KUDAPPANA KUNNU PANCHAYATH OFFICE, PEROOR KADA, TRIVANDRUM. BY ADV. SRI.S.RADHAKRISHNAN RESPONDENT(S): --------------------------- V.SANDHYARANI @ RAGI, D/O.VIJAYAMMA, T.C.11/1150, RAJI NIVAS, YMR JUNCTION, NANDANKODU, TRIVANDRUM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.34919 of 2008 = = = = = = = = = = = = = = Dated this the 28 th day of November, 2008 JUDGMENT Petitioners, who are the former husband and the mother-in- law of the respondent herein challenge Ext.P6 order dated 7.11.2008 passed by the learned I Additional Munsiff, Thiruvananthapuram disposing of the preliminary issue regarding jurisdiction in O.S.No.1092 of 2008 and rejecting the contention of the petitioners herein that the dispute is one which is exclusively cognizable by the family court under Clause C to the Explanation to Section 7(1) of the Family Courts Act, 1984. 2. The essential facts for the disposal of this writ petition are the following:- The 1st petitioner married the respondent herein on 5.8.1997. During the subsistence of the marriage, the 1st petitioner herein, on 6.12.97 executed a settlement deed by which he gifted one half of his rights over the plaint schedule property to the respondent. After the marital partners got estranged (eventually resulting in their divorce by mutual W.P.(c).No.34919 of 2008 2 consent on 26.5.2001) the 1st petitioner executed a cancellation deed on 19.12.97. Thereafter, on 13.1.97, he sold the entire property in favour of the 2nd petitioner who is none other than his own mother. In the meanwhile the respondent/ wife filed the present suit namely O.S.No.1092/2008 before the Munsiff's Court, Thiruvananthapuram for a declaration that the half right over the plaint schedule property belongs to her and that the cancellation deed dated 19.12.97 executed by the 1st petitioner herein who is the 1st defendant and subsequent sale deed dated 13.1.98 executed by the 1st petitioner in favour of the 2nd petitioner herein who is the 2nd defendant in the suit are not binding on the plaintiff and for partition of her half right over the plaint schedule property including the residential building thereon. Initially, an ex parte decree was passed against the petitioners. Ten years thereafter they got the ex parte decree set aside. It was only thereafter that the petitioners raised a question of jurisdiction before the learned Munsiff regarding the jurisdiction of the civil court to decide the dispute. As per Ext.P6 order the learned Magistrate decided the preliminary issue against the petitioners holding that the civil court continues to W.P.(c).No.34919 of 2008 3 have jurisdiction to try the suit and that the jurisdiction of the civil court is not ousted and that the jurisdiction is not exclusively vested in the family court. It is the said order which is assailed in this writ petition. 3. The learned counsel for the petitioners placing strong reliance upon the decisions in Shyni v.George and others [(1997)1 KLJ 573] and Abdul Jallel v. Sahida [2003(2)KLT 403 (SC)] contended that the view taken by the learned Munsiff is wrong and that the observations in the aforesaid rulings clearly indicate that a dispute of this nature is exclusively cognizable by the family court. 4. I am afraid that I cannot agree with the above submissions. The suit which was filed as early as in the year 1998 and after an ex parte decree was passed, it was got set aside only after a lapse of 10 years. Until the year 2008, the petitioners had not urged before the Court below any objection regarding the alleged lack of jurisdiction of the civil court. Mere raising of a question of jurisdiction in the written statement is not enough. It was only in the year 2007 that they filed the written statement in the suit and it was only thereafter that they W.P.(c).No.34919 of 2008 4 urged the want of jurisdiction for the first time before the learned Munsiff. Clause C of the Explanation to Section7(1) of the Family Courts Act, 1984 envisages a suit or proceeding between the parties to a marriage with respect to the properties of the parties or of either of them. It is the respondent/wife alone who contends that notwithstanding the cancellation deed and the subsequent sale deed executed by the 1st petitioner she continues to be the owner having one half right over the plaint Schedule property. The stand taken by the petitioners is that the settlement deed executed by the 1st petitioner did not take effect and therefore it was validly cancelled by him and the entire property has been sold to the 2nd petitioner who is the 2nd defendant in the suit. Going by the above stand of the petitioners the suit property belongs absolutely to the 2nd defendant. It is with regard to this property that the plaintiff seeks a declaration and partition ignoring the cancellation deed and subsequent sale deed. Unless and until the declaration sought for by the plaintiff is given, the property exclusively belongs to the 2nd defendant (mother-in-law of the plaintiff) who is not a party to the marriage between the plaintiff and the 1st W.P.(c).No.34919 of 2008 5 defendant. Hence, it cannot be said to be a suit or proceeding between the parties to the marriage with respect to a property belonging to either of them within the meaning of Clause C of the Explanation C to Section 7(1) of the Family Court Act. This view is fortified by the decisions in Krishnan Namboodiri v.Thankamani (1994 KLT 607) and Devaki Antharganam v.Narayanan Namboothiri (2006(2)KLT 1022) In this view of the matter it cannot be said that the learned Munsiff was in err in holding that the jurisdiction of the civil court is not ousted and that the dispute is not within the exclusive cognizance of the Family Court. The preliminary objection regarding jurisdiction was thus rightly overruled. I, therefore, do not see any good ground to interfere with Ext.P6 order. This writ petition is accordingly dismissed. Dated this the 28 th day of November, 2008. V. RAMKUMAR, JUDGE sj