K SURENDRAN Vs. CHANDRAN P GUPTHA

JUDGEMENT

(1.) The original petition is filed challenging Ext.P3 order dated 7/11/2015 in IA No.14/2013 in OP No. 90/2013 of the Family Court, Ottapalam. The 1 st respondent in the original petition is the petitioner herein. The original petition was filed for a declaration that sale deed no.4181/2002 executed by the 1 st respondent herein is a sham document created as security for an amount of Rs.50,000/- borrowed by the 1 st respondent herein and it has not come into force and that the petitioner has no right, title or possession over the property and still remains with the coownership of the respondents.

(2.) The short facts involved would indicate that the respondents herein are husband and wife. The husband filed the original petition against the petitioner herein and his wife invoking Section 7 of the Family Courts Act. It is contended that the husband purchased the petition schedule property in the name of his wife as per document No.2517/1985 of SRO Mannarkkad. According to him, entire sale consideration was paid by him. His wife's father made him to believe that for the purpose of getting housing loan, the property could be purchased in both their names. Accordingly, half right of the property was purchased in the name of husband and half right in the wife's name. He thereafter constructed a building in the property and since 1998, his wife and children are residing. He suffered loss in his business and he demanded Rs.50,000/- from the petitioner as loan and executed a sale deed as document No.4181/2002 assigning his half share over the property as a sham document and it is contended that the petitioner had agreed to reconvey the property on repayment of the amount borrowed as loan. It is contended that in March, 2012, when he demanded for reconveyance of the property, after receiving Rs.50,000/- borrowed from him, the petitioner was not willing for the same. At this stage, the original petition is filed. Petitioner herein, who is the first respondent in the original petition, filed IA No.14/2013 challenging the maintainability of the original petition on the ground that the averments in the original petition does not disclose a matrimonial issue which is liable to be considered by the Family Court under Section 7 of the Act. The Family Court after an elaborate consideration of the facts and circumstances of the case observed that it has jurisdiction to entertain the suit. It is challenging the said order, that this original petition is filed.

(3.) Learned counsel for the petitioner submits that merely because the 1 st respondent's wife has been impleaded in the case does not indicate that the dispute is with reference to any matrimonial type. The original petition is filed seeking for a declaration that sale deed No.4181/2002 of SRO, Mannarkkad is a sham document. His wife is not a party in the document. As per Explanation (c) to Section 7 of the Act, the property disputes between a married couple alone is liable to be considered by the Family Court. It is contended that when Explanation (c) to Section 7(1) does not apply, the Family Court committed serious error of law in placing reliance upon Explanation (d) in Section 7(1) and arriving at the said finding.