(1.) This appeal is against an order by which the court below ordered return of plaint on the ground that it has no jurisdiction to try the matter. It did so on the premise that the suit would fall within the jurisdiction of the Family Court under the provisions of the Family Court Act, 1984. Defendants 1 to 4 are the wife and children of the fifth defendant. On 09-05-2011, the fifth defendant executed a document in favour of the plaintiff purporting to alienate an item of immovable property. The material shows that, on 28-05-2011, he paid basic tax following such transfer. Thereafter, on the allegation that defendants 1 to 4 broke open and trespassed into the building, which was delivered following the sale by the fifth defendant to the plaintiff, the suit was instituted seeking declaration of title for recovery of possession and incidental reliefs. Going by the submissions, it appears that, after the said suit was instituted on 18-07-2011, all or any among defendants 1 to 4 initiated proceedings before the Family Court against the fifth defendant for maintenance and also for a declaration as to title to the property involved in the suit from which this appeal arises. We are told that the wife contends that the fifth defendant husband put up the building utilising funds belonging to the first defendant.
(2.) The court below, following the decision of this Court in Vasumathy N. and Another Vs. Valsan and Others,2011 3 KHC 573 (DB)], held that the substance of this litigation relates to disputes between the couple and children who are arrayed as defendants. Accordingly, it ordered return of the plaint on the premise that the suit was barred before the civil court and the plaint has to be presented before the Family Court.
(3.) Heard the learned counsel for the appealing plaintiff and the learned counsel for the respondents. The facts as already noted above disclose that it is the suit from which this appeal arises that was filed at the first instance. It is thereafter that the litigations commenced in the Family Court at the instance of defendants 1 to 4. The ratio in Vasumathy is pointedly dependent on the facts of that case which have been noted by the learned Judges in paragraphs 5 and 6 of that judgment. The sale deed involved in that litigation was executed after the transfer of husband had been served with notice of an MC proceedings in the Family Court and also with the plea in the Family Court that the wife had a charge over the husband's property. We note that the parties in that litigation were Hindus. Hindu Marriage Act applied to them. The case before us is not one so. Not only that, the transfer of title by the fifth defendant to the plaintiff, as contended by the plaintiff, was before any litigation was filed in the Family Court as between the parties to the marriage between defendants 1 and 5. Not only that, the nature of disputes between them would be for consideration only at a later point of time and cannot be pre-judged; to push the plaintiff in this case, who is a stranger to the couple, to compel him to take remedial action before the Family Court. We see no jurisdiction in terms of the provisions of the Family Court Act, as regards the suit from which this appeal arises. We are fortified with the decision of this Court in Joseph Vs. Marium Thomas, 2006 1 KerLT 894], where the Bench has considered the explanation to Section 7 of the Family Court Act. A case where a total stranger, whose claim is of having purchased property from the husband, cannot be brought under Clause 7 of Section 7 of the Family Court Act. That decision stands distinguished in the later Bench judgment in Vasumathy but, adverting to the later part of Vasumathy , it is clear from paragraph 24 onwards that the Bench that decided the Vasumathy case did so because it was of the view that neither Joseph nor the other decision cited before it had any impact on the facts and circumstances of the case that fell for consideration in Vasumathy . The precedents referred to were found by the Division Bench in Vasumathy as insufficient to consider the question whether the proceedings in that case would fall within the sweep of Section 7. Under such circumstances, we are of the view that Vasumathy was rendered specifically on the facts of that case and cannot be applied to the case in hand. For the following reasons, the impugned order is set aside. The court below will take back the plaint and proceed with it in accordance with law. Appeal ordered accordingly. No costs.