IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 Tr.P(C).No. 213 of 2008 TO TRANSFER OS.NO.174/2008 OF MUNSIFF'S COURT,VARKALA TO THE FAMILY COURT, NEDUMANGAD TO BE TRIED ALONG WITH O.P.NO.1192 OF 2005 AND O.P.NO.641 OF 2006. PETITIONER SHERLY AGED 34 YEARS, W/O. VIJAYAN, POLICE QUARTERS NO.L-16, VIKAS LANE VIKAS BHAVAN, PMG JN. THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENTS: 1. SUKUMARI AMMA, N.S.LAND, S.V.PURAM, PANAYARA P.O., CHEMMARUTHI VILLAGE, VARKALA, THIRUVANANTHAPURAM. 2. ARUN NAIR @ KUMAR ARUN N.S.LAND S.V.PURAM, PANAYARA P.O., CHEMMARUTHI VILLAGE, VARKALA, THIRUVANANTHAPURAM. 3. KARVY STOCK BROKING LTD, VARKALA BRANCH, MAIDANAM VARKALA, THIRUVANANTHAPRAM REPRESENTED BY ITS MANAGING DIRECTOR. 4. STATE BANK OF INDIA, VARKALA BRANCH, VARKALA, THIRUVANANTHAPURAM. 5. LIC OF INDIA, P & GS DEPARTMENT JEEVAN PRAKASH, 25 K.G. MARG, NEW DELHI, REPRESENTED BY ITS GENERAL MANAGER. 6. VIJAYAN S/O. LATE GANGADHARAN POLICE QUARTERS NO.L-16, VIKAS LANE, VIKAS BHAVAN P.O., PMG JN, THIRUVANANTHAPURAM. R1 AND R2 BY ADV. SRI.THALIYAL.R.GOPAKUMAR SRI.V.MADHURIPAN PILLAI THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A.NO.2863/2010 IN TR.P.(C) NO.213/2008 DISMISSED 11/3/2011 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ Tr.P.(C). NO. 213 OF 2008 ------------------------------------------------------ Dated this the 11th day of March, 2011 O R D E R The prayer in this Transfer Petition is to transfer O.S.No.174 of 2008, pending before the Munsiff's Court, Varkala, to the Family Court, Nedumangad, to be tried along with O.P.No.1192 of 2005 and O.P.No.641 of 2006 pending before that Court. 2. O.S.No.174 of 2008 was filed by the petitioner against Sukumari Amma and others for declaration of title and recovery of possession of item 1 of A schedule, for partition of item 2 of A schedule and for other reliefs. O.P.No.1192 of 2005 on the file of the Family Court, Nedumangad was filed by Sukumari Amma and Arun Nair (respondents 1 and 2 in the Transfer Petition) against Narayanan Nair, Sherly (petitioner in the Transfer Petition) and others, to set aside the two gift deeds executed by Narayanan Nair in favour of Sherly and for other reliefs. O.P.No.641 of 2006, Family Court, Nedumangad, was filed by Sukumari Amma and Arun Nair against Sherly (petitioner herein) and others, to set aside a Will executed by Narayanan Nair in favour of Sherly and for other reliefs. Tr.P.(C) NO.213 OF 2008 :: 2 :: 3. The learned counsel for the petitioner submitted that Narayanan Nair married Radhamany and in that wedlock, Sherly, the petitioner, was born. According to the petitioner, Sukumari Amma was a concubine of Narayanan Nair. Arun Nair is the illegitimate son in that relationship. According to the respondents, Sukumari Amma is the legally wedded wife of Narayanan Nair. It is stated that Narayanan Nair executed two gift deeds and a Will in favour of the petitioner. The suits and the Original Petitions referred to above were filed for the reliefs mentioned therein, in these circumstances. 4. As stated earlier, the prayer of the petitioner is to transfer the suit pending before the Munsiff's Court, Varkala to the Family Court, Nedumangad. The prayer is opposed by the respondents. 5. The relevant part of Section 7 and Section 8 of the Family Courts Act is extracted below: “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 Tr.P.(C) NO.213 OF 2008 :: 3 :: 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.” “8. Exclusion of jurisdiction and pending proceedings.-- Where a Family Court has been established for any area,-- (a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 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 that sub -section; (b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and Tr.P.(C) NO.213 OF 2008 :: 4 :: every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),-- (i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.” 6. Section 24 of the Code of Civil Procedure provides for general power of transfer and withdrawal of suits, appeals and other proceedings. The power can be exercised on the application of a party or suo motu by the High Court or by the District Court. The High Court or District Court may, at any stage, transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the Tr.P.(C) NO.213 OF 2008 :: 5 :: same. Clause (b) of sub-section (1) of Section 24 provides for withdrawal of any suit, appeal or any other proceeding pending in any subordinate Court for the purpose of dealing with the same in any of the modes mentioned in clauses (i) to (iii) therein, namely, (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn. Sub-section (5) of Section 24 was inserted by the Code of Civil Procedure (Amendment) Act, 1976, providing that a suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. 7. In order to attract Section 24, it is necessary that the Court to which the case is transferred must have competence to try it. In view of sub-section (5) of Section 24, it is not necessary that the Court from which the case is to be transferred must have jurisdiction to try the suit. That means, even if the Court where the suit is pending has no jurisdiction to try the suit, the power of transfer can be exercised either by the District Court or by the High Court, to transfer the suit from that Court to any Court competent to try or dispose of the same. The pre-requisite for a transfer to a Court is Tr.P.(C) NO.213 OF 2008 :: 6 :: that the transferee Court must have competence to try the suit. The competence spoken to in Section 24 need not relate to territorial jurisdiction, but the Court must have jurisdiction over the subject matter of the suit. In so far as the Family Court is concerned, it gets jurisdiction to try a matter in view of Section 7 of the Family Courts Act. The Family Court will have jurisdiction of the Civil Court to try all suits and proceedings as mentioned in Section 7 of the Family Courts Act. If the suit or other proceeding relates to any of the matters mentioned in Section 7 of the Family Courts Act, the District Court or subordinate civil court referred to in sub-section (1) of Section 7 shall have no jurisdiction in respect of any such suit or proceeding, in view of Section 8 of the Family Courts Act. If the prayer of the petitioner to transfer the suit pending before the Munsiff's Court, Varkala to the Family Court, Nedumangad is to be entertained, the Family Court must have competence to try that suit. If the Family Court has jurisdiction to try the suit filed by the petitioner, which is now pending before the Munsiff's Court, Varkala, necessarily it has to be held that the suit would not be maintainable before the Munsiff's Court, Varkala, in view of Section 8 of the Family Courts Act. The petitioner has no such case. A suit pending before the Subordinate Civil Court cannot be transferred to a Family Court Tr.P.(C) NO.213 OF 2008 :: 7 :: except under Section 8 of the Family Courts Act. The ground raised by the petitioner in the Transfer Petition is that all the three cases mentioned are “closely connected with each other” and “if tried separately, there is a chance of divergent judgments being passed”. Certainly, this ground would have been a good ground, provided the court to which the transfer is sought is competent to try or dispose of the suit. In view of the above legal position, the prayer made by the petitioner cannot be granted. The Transfer Petition is accordingly, dismissed. It is made clear that the fact that the petitioner has filed this Transfer Petition would not stand in the way of the petitioner challenging maintainability of the aforesaid two Original Petitions pending before the Family Court. (K.T.SANKARAN) Judge ahz/