Tuesday, 2 February 2021

Whether the Family Court can decide the question of sale deed being null and void emerging out of a marital relationship?

According to the court below, the issue as to the matrimonial status of first plaintiff is a matter which could be adjudicated only by a Family Court having regard to the provisions in Section 7 of the Act. Having heard the learned counsel appearing on both sides, I am of the opinion that the view taken by the court below appears to be correct and in accordance with law.

8. As per Explanation to Section 7(1)(b) of the Act, a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person could be brought only before a Family Court and there is exclusion of jurisdiction of Civil Court in this respect. The question as to whether sale deed in favour of sixth defendant is null and void, is consequential upon the decision on the alleged status claimed by the first petitioner. Without deciding the question as to the status of first petitioner, the validity as to the sale deed could not be decided. In that view of the matter, in my opinion, the suit could be said to be one falling under Explanation to Section 7(1)(d) of the Act as well inasmuch as the relief sought appears to be covered by that provision. The declaration of sale deed as being null and void could be said to be a question that emerges in the circumstances arising out of a matrimonial relationship. But for the dispute as to the matrimonial status claimed by the first petitioner, the institution of the instant suit would not have occasioned. For all these reasons, I am of the opinion that the impugned order of the court below returning plaint to be presented before Family Court is perfectly legal and it is not liable to be interfered with.

 In the High Court of Kerala at Ernakulam

(Before T.V. Anilkumar, J.)

Jaminimol  Vs  Federal Bank Ltd

O.P. (C). No. 1807 of 2015(O)

Decided on January 22, 2021

Citation: 2021 SCC OnLine Ker 381


The Judgment of the Court was delivered by

T.V. Anilkumar, J.:— Ext. P8 order passed by Munsiff Court, Pathanamthitta, is under challenge in this proceeding initiated under Article 227 of the Constitution of India, at the instance of the plaintiffs in O.S. No. 310/2014.

2. The first defendant, Bank raised question of maintainability of suit and contended that it was not liable to be tried before the Munsiff Court inasmuch as the issue involved is liable to be dealt with under the provisions of the Family Courts Act, 1984 (for short, ‘the Act’). Upholding the contention of first defendant, bank impugned order returning the plaint to Family Court was passed.

3. The suit (O.S. No. 310/2014) was filed by the petitioners for declaring them as wife and son of the deceased, P.J. Suresh and also for declaring sale deed dated 28.03.2014 in respect of suit property executed by defendant Nos. 2 to 4 in favour of sixth defendant at the instance of first defendant, are void and not binding on the plaintiffs.

4. The plaint schedule property was mortgaged by late P.J. Suresh in favour of first defendant, bank at the time of availment of loan. When he committed default in repayment of the loan, the first defendant proceeded under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002[SARFAESI Act) and brought the property to sale. During the course of the auction proceeding, with the permission of the first defendant, the property was sold to sixth defendant by defendant Nos. 2 to 5 who claimed to be the children, wife and mother of the deceased P.J. Suresh.

5. According to the petitioners, the first petitioner is the legally wedded wife of the deceased P.J. Suresh and second petitioner is the son and they alone being the sole legal heirs, are the property owners and consequently the sale deed executed in favour of the sixth defendant is null and void. In the suit, the main relief that is sought is for declaring the first petitioner as the legally wedded wife of the deceased P.J. Suresh.

6. The question that arises for consideration is whether the view taken by the court below ordering return of plaint to be presented before Family Court is legal.

7. According to the court below, the issue as to the matrimonial status of first plaintiff is a matter which could be adjudicated only by a Family Court having regard to the provisions in Section 7 of the Act. Having heard the learned counsel appearing on both sides, I am of the opinion that the view taken by the court below appears to be correct and in accordance with law.

8. As per Explanation to Section 7(1)(b) of the Act, a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person could be brought only before a Family Court and there is exclusion of jurisdiction of Civil Court in this respect. The question as to whether sale deed in favour of sixth defendant is null and void, is consequential upon the decision on the alleged status claimed by the first petitioner. Without deciding the question as to the status of first petitioner, the validity as to the sale deed could not be decided. In that view of the matter, in my opinion, the suit could be said to be one falling under Explanation to Section 7(1)(d) of the Act as well inasmuch as the relief sought appears to be covered by that provision. The declaration of sale deed as being null and void could be said to be a question that emerges in the circumstances arising out of a matrimonial relationship. But for the dispute as to the matrimonial status claimed by the first petitioner, the institution of the instant suit would not have occasioned. For all these reasons, I am of the opinion that the impugned order of the court below returning plaint to be presented before Family Court is perfectly legal and it is not liable to be interfered with.

9. In the result, original petition fails and it is dismissed.

10. All pending interlocutory applications will stand closed.

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