MOHAMMED ISAQ Vs. MEHARUNNISA

JUDGEMENT

(1.) I have heard the petitioners' learned Advocate. The principal point canvassed by him is that the Trial Court was completely in error in having held that the jurisdiction to try the present suit vests exclusively with the Family Court. Learned Advocate submits that the prayer clauses to the plaint very clearly indicate what precisely was the complexion of the cause of action as also the reliefs asked for. He points out that the petitioners' have asked for a declaration that they are the legal heirs of deceased Buransaheb and the consequential reliefs are in relation to partition and rights to property etc. The main submission canvassed is that this suit is not different to any other civil proceeding that is normally required to be instituted before a Civil Court and that merely because the sister who is contesting the matter has taken up the contention that plaintiffs 1 and 2 are not the legal heirs, that the learned Judge has incorrectly referred the matter to the Family Court. It is true that the defendants filed an application questioning the jurisdiction of the Civil Court and specifically took up the contention that this case is covered by Section 7(e) of the Family Courts Act and that therefore, the suit should be transferred to that Court which has exclusive jurisdiction to try all proceedings listed under Section 7. Petitioners' learned Advocate submits that the order is inherently erroneous and that it requires to be set aside. He has relied on an earlier decision of this Court in the case of Vasumathi v Chandriyani Madhavi and Another , wherein this Court had occasion to consider the ambit and scope of proceedings entrusted to the Family Court in relation to the grant of succession certificate and this Court held that it was wholly outside the powers of the Family Court to entertain such a proceeding. In the second decision relied on by the petitioners' learned Advocate in Smt. AS. Gowri v B.R. Satish, a Division Bench of this Court had occasion to examine the scope of the Family Courts Act in relation to property disputes and this Court held that in appropriate cases, that the Family Court does have the competence to deal with such proceedings though, the decision in question will have to be applicable in cases where the facts are similar. That case was essentially a matrimonial dispute wherein the incidental question that arose was with regard to the property rights of the spouses. Petitioners' learned Advocate submitted that these decisions very clearly indicate that the jurisdiction of the Family Court is confined to a situation where the cause of action essentially emanates from a matrimonial dispute and that Section 7(e) will have to be read and understood in this context. His submission is that where the dispute happens to be between the brother and sister or other family members in relation to property rights of a deceased parent, that the proceeding would be wholly and completely outside the scope of the Family Court. Though this is not the main issue involved in the present civil revision petition, I need to record that there is considerable substance in the submission canvassed in so far as a reading of the statement of objects and reasons, and the preamble of the Family Courts Act itself will indicate that the Court was basically set-up for speedy and effective adjudication of the entire gamut of cases that come within the broad umbrella of matrimonial proceedings. Such disputes do necessarily include questions of maintenance, property rights, monetary payments and even aspects of legitimacy. It needs to be understood that the Family Court will certainly examine these disputes provided they bear a nexus or a relationship to a matrimonial proceeding or a matrimonial dispute. The Family Courts were not set up for purposes of taking over from the Civil Courts in other proceedings which do not come within this category of cases. Petitioners' learned Advocate to that extent is right when he points out that the proceeding even if it happens to relate to property matters will have to be an of-shoot or an incidental proceeding to a matrimonial dispute.

(2.) The controversy in the present proceeding has nothing to do with the question of legitimacy. Section 7(e) specifically confines the jurisdiction of the Family Court to issues relating to legitimacy alone. Such issues undoubtedly require to be examined by a matrimonial Court because the very essence of the concept of legitimacy relates to the question as to whether the marriage in question was regular and more importantly, whether the birth has taken place within the framewith of a lawful marriage or in other words, within wedlock or outside. The concept of heirship is an entirely different aspect in law because it presupposes the examination of the aspect of succession which is a different and broader concept from the narrow aspect of legitimacy. It may be that in a given situation a person claiming property rights may have to be disqualified if the legitimacy is disputed and the dispute is established. In the present proceeding the only dispute is with regard to the question whether the plaintiffs 1 and 2 are entitled to claim a share in the property of deceased Buransaheb on the basis of they being his legal heirs. The learned trial Judge has wrongly upheld the objection canvassed by the defence that this proceeding involves the question of legitimacy only. A scrutiny of the plaint will indicate that it is a simple suit for partition and apportionment of shares and under these circumstances, the ambit and scope of the proceedings is clearly and completely outside the jurisdiction of the Family Court.

(3.) In this view of the matter, the impugned order which iserroneous is set aside. The Trial Court is directed to hear and deride the suit on merits. The parties are directed to appear before the Trial Court on 4-11-1996 when the Court shall issue directions in respect of the further course of action in the suit The interim stay to stand vacated.