IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 FAO.No. 248 of 2007() --------------------- OS.300/2005 of SUB COURT, PALAKKAD .................... APPELLANTS/PLAINTIFFS: ------------------------------- 1. MADHAVI, W/O. LATE NARAYANAN, AGED 84, MAMPALLAM BUNGALOW, MUTHALAMADA VILLAGE, CHITTUR TALUK, BY POWER OF ATTORNEY HOLDER, LEELA, W/O. SIVADASAN. 2. LEELA, W/O. SIVADASAN, AGED 57, RESIDING AT -DO- -DO- BY ADV. SRI.P.R.VENKATESH RESPONDENT/DEFENDANT: ------------------------------- K.V.SIVADASAN, S/O. VELAYUDHAN, AGED 65, P.V.GRANITE CRUSHERS, KADAMKODE, YAKKARA AMSOM, PALAKKAD TALUK. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dvs M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 248 OF 2007 = = = = = = = = = = = = = = = Dated this the 17th day of July, 2008. J U D G M E N T Since the defendant has chosen to remain exparte in spite of notice in the delay condonation application, I am proceeding to dispose of the appeal itself. The appeal is preferred against the judgment of the Subordinate Judge, Palakkad in O.S.300/05 whereby the Subordinate Judge had transferred the suit records to the Family Court, Palakkad. I am afraid that such a finding entered into is not correct. The suit is filed by the mother-in-law and wife of the defendant namely the 2nd plaintiff against the defendant, husband for a permanent prohibitory injunction. It is the case of the plaintiffs that the property originally belonged to the first plaintiff and by virtue of a settlement deed in the year 2005 it has been given in favour of the 2nd plaintiff and her son, Srijith. The defendant is attempting to interfere with the peaceful possession hence the suit. It is also contended that there is a right of residence for the first plaintiff. F.A.O. 248 OF 2007 -:2:- 2. On the other hand the defendant would contend that even from the time of the father-in-law he has been looking after the affairs and that he is in possession of the property and the plaint averments are incorrect. In order to oust the jurisdiction of the Family Court, it must come under Section 7(1)(c) of the Family Court Act. If it is a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them, then the Family Court Act confers jurisdiction and when such jurisdiction is conferred under Section 7, Section 8 excludes the jurisdiction of the civil Court. Therefore, if one of the party is able to establish that it is purely a dispute between the husband and wife, the Family Court may have jurisdiction. But at the same time it is a point worth consideration whether there were other persons interested in the property and whether such persons' interests are also involved and if so whether Section 7(1)(c) will be attracted. So a consideration of the settlement deed may become necessary for a proper disposal of the case. At any rate, a Subordinate Judge cannot transfer the file to the Family F.A.O. 248 OF 2007 -:3:- Court for trying the case for the reason that when its jurisdiction is ousted it can dispose of the case stating that the suit is not maintainable in the civil Court in the light of any of the sub-section under Section 7. So the matter requires reconsideration. Therefore, the judgment under challenge is set aside and the case is remitted back to the Subordinate Judge, Palakkad for a further consideration of the things in the light of the discussions made in the previous paragraphs of the judgment. Since the defendant has not chosen to enter appearance before this Court I direct the plaintiffs to take out notice to the defendant from the Court below before final disposal of the matter. Till a final decision is taken in the matter I also direct the Family Court, Palakkad not to proceed with the case. The appellant is directed to appear before the Court below on 19.8.2008. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-