As already observed, no specific power under the Act has been conferred on the Family Court either to deal with the prayer relating to the issuance of a Succession Certificate or to grant relief thereof as required by the specific provisions of law under Ss. 372 and 373 of the Indian Succession Act. Therefore, in the absence of such a power having been conferred on the Family Court, it is not possible to reach the conclusion that the Family Court can deal with such a prayer and grant the relief sought for by a party. In other words, this intendment cannot be gathered from the scheme of the Family Courts Act, inasmuch as the Legislature did not provide for such a contingency enabling the Family Court to deal with the circumstances arising in a case like this and to grant the relief. Therefore, the contention of the learned counsel for the petitioner has to be accepted.
In that view of the matter, the Civil Court was not right in transferring the said application to the Family Court which has not been conferred with the power of granting Such a relief. The application of the petitioner should have been dealt with by the City Civil Court itself as it was competent to do so and granted the relief as required by law.
Karnataka High Court
Smt. Vasumathi vs Chandriyani Madhavi And Others on 6 February, 1990
Equivalent citations: AIR 1991 Kant 201, ILR 1990 KAR 3885, 1990 (2) KarLJ 469
Bench: M Ramakrishna
1. The short question that arises for consideration in this revision petition is --Whether the order passed by the learned City Civil Judge transferring the petition pending before him to the Family Court is valid and proper,
2. The facts are these : Smt. Vasumathi, the petitioner herein, on the death of her husband Raman, approached the City Civil Court by filing an application dated 30-8-
1986 under S. 372 of the Indian Succession Act, 1925 (for short the Act of 1925) seeking for issuance of a Succession Certificate in her favour in respect of the estate left behind by her husband. She impleaded in her application one Chandriyani Madhavi, step-sister of her husband.
3. After issuing notices and after publishing the matter in a news paper, the matter was set down for evidence and as submitted by the leanred counsel, the evidence was almost at the completion stage,
4. In the meantime, one Janki claiming to be the wife of deceased Raman also filed an application under O. I. R. 10, C.P.C., seeking permission of the Court to get herself impleaded as a party to the application of the petitioner Vasumathi. The Court allowed the application, permitted her to come on record and proceeded with the matter.
5. When the matter was posted for further hearing, the City Civil Court, by its order dated 10-2-1989, directed the petition of the petitioner to be transferred to the Family Court. Aggrieved by this order, the petitioner has filed this revision petition before this Court.
6. Shri Thomas, learned counsel for the petitioner, submits that, having regard to the scheme of the Act particularly the provisions of S. 7 of ihe Family Courts Act, 1984 (the Act for short), the Civil Court ought to have itself decided the petition instead of transferring it to the Family Court, inasmuch as the Family Court has not been conferred with the power of issuing Succession Certificate. He relied upon a decision of this Court in Ananthamathi v. Ratnavathi, 1977 (1) Kar LJ 435.
7. To appreciate the contention of the learned counsel for the petitioner, it is necessary to extract the provisions of S. 7 of the Act. It reads :
"7(1) Subject to other provisions of this Act, the 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 to Civil Court for the areas in 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 or 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 martial 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; and
(b) Such other jurisdiction as may be conferred on it by any other enactment."
8. From the above, it is clear that no power is conferred on the Family Court to deal with an application under S, 372 of the Indian Succession Act for a Succession Certificate in respect of the estate left behind (by) a deceased person. Therefore, the Civil Court being clothed with the power of granting Succession Certificate should have dealt with the application of the petitioner instead of transferring it to the Family Court which has no power to do so.
9. This Court in Ananthamathi's case observed in para-4 as follows:
"On the second contention, the learned Munsiff held that it is a matter to be litigated in a Civil Suit. This view, in the circumstances of the case, appears to be perfectly justified as the problem presented was not free from doubt. S. 373(3) of the Act provides that, if the Judge cannot decide the right to the certificate without determining question of law or fact, which seems to be too intricate and difficult for determination in a summary proceeding, he may, nevertheless, grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto."
From the above ruling, it is made clear that in a case where questions of intricate nature were to arise for determination, such a case cannot be decided by conducting summary proceedings and therefore the Court will have to consider a prima facie case to be established in a detailed proceeding as required under S. 373 of the Indian Succession Act.
10. As already observed, no specific power under the Act has been conferred on the Family Court either to deal with the prayer relating to the issuance of a Succession Certificate or to grant relief thereof as required by the specific provisions of law under Ss. 372 and 373 of the Indian Succession Act. Therefore, in the absence of such a power having been conferred on the Family Court, it is not possible to reach the conclusion that the Family Court can deal with such a prayer and grant the relief sought for by a party. In other words, this intendment cannot be gathered from the scheme of the Family Courts Act, inasmuch as the Legislature did not provide for such a contingency enabling the Family Court to deal with the circumstances arising in a case like this and to grant the relief. Therefore, the contention of the learned counsel for the petitioner has to be accepted.
11. In that view of the matter, the Civil Court was not right in transferring the said application to the Family Court which has not been conferred with the power nf wanting Such a relief. The application of the petitioner should have been dealt with by the City Civil Court itself as it was competent to do so and granted the relief as required by law.
12. On behalf of the respondents, no material is produced to show that the action taken by the learned City Civil Judge in transferring the application to the Family Court is correct much less any authority is brought to my notice that the Family Court is competent to deal with the application.
13. Viewed from the above circumstances, there is no other alternative but to accept the contention of the learned counsel for the petitioner that the order passed by the learned City Civil Judge transferring the application of the petitioner to the Family Court is liable to be set aside and it is accordingly set aside. The C.R.P. is allowed. The XIX Additional City Civil Judge, Bangalore, is directed to hear and dispose of the matter in accordance with law within a period of two months from the date of receipt of this order, since the matter is pending before him for quite some time.
14. In the circumstances of the case, there will be no order as to costs.
15. Revision allowed.
No comments:
Post a Comment