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Madhya Pradesh High Court · body

2013 DIGILAW 776 (MP)

Balram Shivhare v. Suneeta Shivhare

2013-07-09

M.K.Mudgal

body2013
JUDGMENT 1. By filing this appeal under section 96 of the Code of Civil Procedure, appellants-defendants have challenged the validity and legality of the judgment and decree dated 20.2.2004 passed by the Court of II Additional District Judge Gwalior in Civil Suit No.53-A of 2001 whereby, partly allowing the suit filed by the respondent-plaintiff No.1 the trial Court has awarded Rs.50,000/- along with interest at the rate of 9% per annum from the date of filing of the suit till realization of the entire money as ‘Stridhan’. In this appeal, the appellants are referred as ‘defendants’ and respondents as ‘plaintiffs’. 2. The admitted facts are as follows : (i) Smt. Suneeta plaintiff No.1 and Hari Babu Shivhare (now deceased) were married on 6.6.1991 at Gwalior. Out of their wedlock, Shashank plaintiff No.2 was born. Hari Babu Shivhare died on 2.8.1999 in a jeep accident. 3. Facts in brief of the plaint are that the parents of the plaintiff No.1 had given Rs.1,00,000/- along with chain and ring made of gold, scooter and other articles at the time of ring ceremony. Besides other gold ornaments as ear-rings, bangles, necklace and other articles mentioned in para 2 of the plaint were given by her parents at the time of marriage. Apart from this, some articles were also given by her in-laws to her in the marriage. The total cost of the said articles has been estimated at Rs.1,50,000/- by the plaintiff No.1 in para 9 of the plaint. The plaintiff No.1 has further alleged that she is residing with her parents at Gwalior because, she was forced to leave her in-laws house by the defendants after the death of her husband. All the articles including money given in the marriage to the plaintiff No.1 are her Stridhan which were in possession of the defendants. Hence, the suit for recovery of Stridhan was filed by the plaintiff on 1.5.2000 against the defendants. 4. Denying the allegations of the plaint, the defendants have submitted that the plaintiff’s parents (No.1) gave only Rs.10,000/- at the time of ring ceremony. Neither Rs.1,00,000/- nor gold ornaments referred in the plaint were given by the them to the plaintiff No.1. The defendants have, further, stated that they had given to the plaintiff No.1 Suneeta a few gold ornaments in the marriage which are still in her possession. Neither Rs.1,00,000/- nor gold ornaments referred in the plaint were given by the them to the plaintiff No.1. The defendants have, further, stated that they had given to the plaintiff No.1 Suneeta a few gold ornaments in the marriage which are still in her possession. The scooter given by her parents was in her custody and it was also sold by her. The defendants have, further, pleaded that all the articles given to her by her parents and by them are in her possession and thus, nothing remains in the possession of the defendants. Therefore, the plaintiff No.1 is not entitled to get any relief from the defendants as claimed by her in the plaint. 5. The learned trial Court after framing 11 issues and after recording evidence of both the parties and having discussed the recorded evidence in detail, has decreed the suit partly by the impugned judgment and decree as stated earlier. 6. The following question arises for consideration in this appeal : (i) Whether, the learned trial Court had the jurisdiction to entertain the suit? 7. Heard the arguments of both the parties and perused the record. 8. Learned senior counsel for the appellants has pointed out only one aspect of the case i.e. the jurisdiction of the trial Court. The learned senior counsel has strenusouly argued that the trial Court had no jurisdiction to entertain the suit as the Family Courts Act (referred to ‘the Act’) came into force in Madhya Pradesh in 1986 i.e. 14.11.1986. As per contention of learned counsel under section 7 of the said Act, the exclusive jurisdiction has been given to the Family Court to entertain the matters relating to property involved in a marriage. Stridhan comes under the purview of ‘property’. The learned senior counsel has cited the following judgments in his submission. “(i) Pratibha Rani v. Suraj Kumar and another [AIR 1985 SC 628]; (ii) K.A. Abdul Jaleel v. T.A. Shahida [2004(I) MPWN 16= 2003(3) MPLJ 524]; (iii) Sanjay Kumar Sharma v. Smt. Vidya Sharma and another [AIR 2003 Orissa 89]; (iv) Dwarka Prasad Agrawal (dead) by LRs and another v. B.D. Agarwal and others [ 2004(1) JLJ 353 ]; (v) Vijendra (Brijendra) Singh Yadav v. Smt. Rajkumari Yadav and others [ 2005(3) JLJ 173 ]; (vi) Raheja Universal Ltd. v. NRC Ltd. and others [ (2012)4 SCC 148 ].” 9. Refuting the submissions made by appellants’ counsel, counsel for the respondents submits that the appellants-defendants did not challenge the jurisdiction of the suit before the trial Court in the written statement. Besides, no ground for challenging the jurisdiction of the trial Court has been stated in the appeal memo, because of which, appellants are estopped from saying that the lower Court had no jurisdiction to entertain the suit and the impugned judgment and decfree are without jurisdiction.The learned counsel has further submitted that the dispute of the instant suit does not come in the purview of section 7 of the Family Courts Act. As per requirement of section 7, the dispute should be between the parties to a marriage whereas, in the instant case, the defendants are not party of marriage in the plaint. The learned counsel has further argumed that when the suit was filed before the trial Court, the Family Courts were not established under section 3 of the Family Courts Act. Hence, it was not possible for the plaintiff to have filed the suit before the Family Court. Learned counsel has further submitted that no sufficient reason has been shown on behalf of the appellants to interfere in the impugned judgment. 10. In chapter III of the Family Court under section 7, the following provision has been made regarding jurisdiction : (1) Subject to the other provisions of this Act, a 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 civil Court for the area to 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 : (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. The relief sought bythe plaintiff for recovery of Stridhan comes under the purview of section 27 of the Act. 11. The relief sought bythe plaintiff for recovery of Stridhan comes under the purview of section 27 of the Act. 11. At the outset, we have to consider whether Stridhan is a property of the parties to a marriage. In para 10 of Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam [ AIR 1997 SC 3562 ], the Hon’ble apex Court has held as under : “The property, as contemplated by section 27 is not the property which is given to the wife at the time of marriage only. It includes the property given to the parties before or after marriage also, so long as it is relatable to the marriage. The expression “at or about the time of marriage” has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their “joint property”, implying thereby that the property can be traced to have connection with the marriage. All such property is covered section 27 of the Act.” 12. In the same manner in Vinod Kumar v. State of Punjab and Haryana [AIR 1982 Punjab and Haryana 372], the Full Bench has taken the view that section 27 is no way abolishes Stridhan but expressly recognizes the property exclusively owned by the wife. In this connection, the Court observed thus : “The express words of the provision refer to property ‘which may belong jointly to both the husband and the wife’. It nowhere says that all the wife’s property belongs jointly to the couple or that Stridhan is abolished and she cannot be the exclusive owner thereof. Indeed, in using the above terminology the statute expressly recognize that property which exclusively owned by the wife is not within the ambit of section 27 of the Hindu Marriage Act. ... Equally no other provision in the Hindu Marriage Act could be pointed out which erodes the concept of Stridhan or in any way incapacitates the Hindu wife to hold property as an exclusive owner.” Considering the aforesaid views, there is no iota of doubt that Stridhan is a property of marriage and dispute relating to Stridhan comes in the arena of section 7 of the Act as quoted in para 11 of this judgment. 13. 13. Interpreting section 7 of the Family Court, Hon’ble apex Court in K.A. Abdul Jaleel v. T.A. Shahida [2004(I) MPWN 16=2003(3) MPLJ 524 (SC)], has observed as under : “It is now well-settled principle of law that the jurisdiction of a Court created specially for resolution of disputes of certainkinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) to section 7 of the Family Courts Act, would frustrate the object where for the Family Courts were set up. The wording ‘disputes relating to marriage and family affairs and for matters connected therewith’ in the preamble must be given a broad construction. The statement of objects and reasons of the Act would clearly go to show that the jurisdiction of the Family Court extends, inter alia in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other, irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise. Family Court has jurisdiction to adjudicate upon anyquestion relating to the properties of divorced parties (Paras 14-17).” Considering the said view, it is inferred tht the Family Court has jurisdiction to entertain such a matter that comes under the purview of section 7 of the Family Court Act. 14. Now, the question that arises for consideration is that whether a Family Court has exclusive jurisdiction to entertain a suit referred to under section 7 of the Act. In this regard, the learned counsel for the appellants inviting the attention to section 8 of the Family Courts Act, contended that after the Family Courts Act coming into force, the civil Court has no jurisdiction to entertain the suit. Hence, if a decree is passed by a civil Court, it being without jurisdiction shall have the effect of nullity. Section 8 of the Family Courts Act is as under : “8. Exclusion of jurisdiction and pending proceedings. Hence, if a decree is passed by a civil Court, it being without jurisdiction shall have the effect of nullity. Section 8 of the Family Courts Act is as under : “8. Exclusion of jurisdiction and pending proceedings. -- Where a Family Court has been established for any area, -- (a) no District Court or any subordinate civil Court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section; (b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c) every suit or proceeding of the nature referred to the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) : (i) which is pending immediately before the establishment of such Family Court before any District Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and (ii) which would have been required to be instituted or taken before or any such Family Court if, before the date on which, such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established shall stand transferred to such Family Court on the date on which, it is established.” 15. By reading of section 8 of the Family Court Act, it is explicitly clear that after coming into force of the said Act and after establishment of a Family Court for any area under section 3 of the Act, a civil Court of that area shall not have jurisdiction to entertain the disputes as defined under section 7 of the Act. 16. 16. The contention submitted by learned counsel for the respondents to the effect that the defendant No.1 had not raised the objection as regards the exclusive jurisdiction of Family Court before the trial Court in the written statement, so that objection cannot be raised before this Court in appeal, does not appear to be acceptable wherein there is inherent lack of jurisdiction of a Court, it may be raised not only in appeal, even it may be raised in execution proceedings also. If a decree is passed by a Court without having jurisdiction to entertain a suit, the decree would have the effect of nullity. As held by the Hon’ble apex Court in Urban Improvement Trust Jodhpur v. Gokul Narain and another [ AIR 1996 SC 1819 ]. 17. Now, the question raised by learned counsel for the respondent that arises for consideration is that whether, after establishment of the Family Court under section 3 of the Act to the area from which, the cause of action for filing the suit to the plaintiff had arisen in the instant case? Indisputably, the Family Courts Act, 1984 has come into force in Madhya Pradesh since 19.11.1986 vide SO No.79/6/86 dated 14.11.1986 Gazetted of India. Extra Part II section 1. However, the Family Courts under section 3 of the Act to the area of Municipal Corporation Gwalior were established from 8.3.2002 vide notification No. F.No.4.1.2002 Twenty one-B (one) Family Courts Act, 1984 dated 4.3.2002. On perusal of the said notification, it is crystal clear that the Family Courts for the area of Municipal Corporation Gwalior were established on 8.3.2002. The instant suit was filed on 1.5.2000. Thus, it is inferred that when the instant suit was filed, no Family Court was in existence for the area of Municipal Corporation, Gwalior. Resultantly, it is inferred that the civil Court had jurisdiction to entertain the said suit. It is true tht under section 8(c) of the Family Courts Act, the provision is made that after establishment of the Family Court under section 3 of the Act, pending cases in the civil Court shall stand transferred to such Family Court having jurisdiction for that area. 18. Going through the record, it becomes clear that during pendency of the instant case before the learned trial Court, Family Court came into force on 8.3.2002 for the jurisdiction of the area to entertain the disputed matrter. 18. Going through the record, it becomes clear that during pendency of the instant case before the learned trial Court, Family Court came into force on 8.3.2002 for the jurisdiction of the area to entertain the disputed matrter. Nonetheless, the instant case was decided by the impugned judgment and decree dated 20.2.2004 by the learned trial Court. It is also true that no objection was raised by either party before learned trial Court during pendency of the suit regarding section 8 of the Act. In spite of the fact that after establishment of the Family Court, the civil Court had no jurisdiction to proceed with the suit as the civil Court’s jurisdiction was ousted by the Family Court set up under section 3 of the Family Courts Act. Moreover, under section 8(c) of the Act, the provision has been made relating to the pending cases for which, it has been provided that the pending cases shall stand transferred to the Family Court. What would be the effect of new enactment on the pending cases which were filed before the competent Court having jurisdiction to entertain them at the time of filing of the cases. Similar legal point was considered by the Hon’ble apex Court in Shri Inacio Martins deceased through LRs v. Narayan Hari Naik and others [ AIR 1993 SC 1756 ], and in para 9, it has been held as under : “Before we answer those questions we must decide on the impact of the fifth amendment on pending litigation. The question whether the fifth amendment is prospective or retrospective really recedes in the background if we examine the qustion from the angle whether the civil Court can decide any question falling within the jurisdiction of the special forum under the Act in a pending litigation in the absence of an express provision in that behalf. If the question of tenancy in regard to agricultural land cannot be decided by the civil Court under the Act and there is no express saving clause permitting the civil Court to decide the same, it is obvious that any decision rendered by the civil Court would be without jurisdiction. A similar situation did arise in the context of another statute. A similar situation did arise in the context of another statute. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, the facts were that the landlord had filed a suit for eviction on April 25, 1957 in the regular Court, i.e., the Court of the Joint Civil Judge (Junior Divison), Erandol, which admittedly had jurisdiction to pass a decree for possession of the demised premises. However, during the pendency of the suit, a notification was issued under section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called ‘the Rent Act’) applying Part II of the Act to areas where the property in question was situate. The tenants claimed protection of section 12 in Part II of the Rent Act which deprived the landlord of the right of possession under certain circumstances. The question which arose for consideration was whether the tenants were entitled to the protection of section 12 in pending cases and if yes, its effect. Since section 12 of the Rent Act was held to be prospective, the question which arose for consideration was whether its protection could be extended to tenants in pending litigation. This Court pointed out that the point of time when sub-section (1) of section 12 operates is when the Court is called upon to pass a decree for eviction. Thus, said that Court, the language of the sub-section applies equally to suits pending when Part II comes into force and those to be filed subsequently. The contention of the landlord that the operation of section 12(1) is limited to suits filed after the Rent Act comes into force in a particular area was not accepted. Applying the same principle to the facts of the present case, we have no hesitation in concluding that the provisions of the fifth amendment would apply to pending suits also. However, the Act does not preclude the institution of a suit by a tenant for restoration of possession from a trespasser. If the defendant who is sued as a trespasser raises a plea of tenancy, a question arises whether his plea of tenancy can be decided by the civil Court as incidental to the grant of relief for possession or is the civil Court precluded from deciding the same in view of section 7 read with section 58(2) of the Act. If the defendant who is sued as a trespasser raises a plea of tenancy, a question arises whether his plea of tenancy can be decided by the civil Court as incidental to the grant of relief for possession or is the civil Court precluded from deciding the same in view of section 7 read with section 58(2) of the Act. As pointed out earlier, section 7 in terms states that if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act, the Mamlatdar shall decide such question. The jurisdiction is, therefore, vested in the Mamlatdar under section 7 of the Act and section 58(2) specifically bars the jurisdiction of all other Courts to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar. Section 8(2) has limited operation where a person referred to in section 4 has been evicted on or after July 1, 1962. In that case he would be entitled to recover immediate possession of the land in the manner prescribed by or under the Act unless it is shown that his tenancy was terminated in the manner authorised by section 9. In the present case, the plaintiff came to Court contending that even though his lease was not terminated as provided by section 9 of the Act, defendant 1 had dispossessed him byan act of trespass. He, therefore, sought possession of the demised property from the trespasser, defendant 1. He impleaded the owner of the land as defendant 2 on the plea that she had colluded with defendant 1. Defendant 1 raised a contention in his written statement that he was lawfully inducted as a tenant in the lands in question by the owner, defendant 2. In other words, he disputed the plaintiff’s contention that he was a trespasser and pleaded tenancy. If his plea was found to be well founded, he would be entitled to retain possession but not otherwise. Therefore, the question which arose in the suit was whether defendant 1 proved that he was a tenant in respect of the land in question. This question could not be gone into by the civil Court in view of the clear language of section 7 read with section 58(2) of the Act. What procedure should the Court follow in such situations? This question could not be gone into by the civil Court in view of the clear language of section 7 read with section 58(2) of the Act. What procedure should the Court follow in such situations? It would not stand to reason to non-suit the plaintiff who had filed the suit in a competent Court having jurisdiction to try the same merely because of the subsequent change in law. The proper course, therefore, would be one which was followed by the Bombay High Court in Bhimaji Shanker Kulkarni v. Dundappa Vithappa Udapudi. That was a case arising under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. The lands in question were agricultural lands. Section 29(2) of that law provided that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar on an application made in that behalf in the prescribed form. Section 70(b) next provided that for the purposes of the Act, one of the duties and functions to be performed by the Mamlatdar is to decide whether a person is a tenant or a protected tenant or a permanent tenant. Section 85(1) laid down that no civil Court shall have jurisdiction to settle, decide or deal with any question which is required to be settled, decided or dealt with by the Mamlatdar under the statute. The law was silent as to how a dispute of this nature raised in a suit filed for eviction on the footing that the defendant is a trespasser should be dealt with by the civil Court. This question squarely arose for consideration by the Bombay High Court in Dhondi Tukaram v. Dadoo Piraji, wherein that Court observed as under : “Therefore, we hold that in a suit filed against the defendant on the footing that he is a trespasser, if he raises the plea that he is a tenant or a protected tenant, the civil Court would have no jurisdiction to deal with that plea .... We would, however, like to add that in all such cases where the civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss the suit straightway. We would, however, like to add that in all such cases where the civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss the suit straightway. We think that the proper procedure to adopt in such cases would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time. If the decision of the Mamlatdar is in favour of the party raising the plea, the suit for possession would have to be dismissed, because it would not be open to the civil Court to give any relief to the landlord by way of possession of the agricultural land. If, on the other hand, the Mamlatdar rejects the plea raised under the Tenancy Act, the civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser.” Pursuant to the Court’s recommendation, the Bombay Legislature introduced section 85-A which provided that if in any suit instituted in a civil Court issues which are required to be settled, decided and dealt with by any authority competent to settle, decide and deal with the same arise, the civil Court shall stay the suit and refer such issues to such competent authority for determination under the statute. Unfortunately even under the Act with which we are concerned the legislature though aware of section 85-A has not chosen tomake any provision for dealing with such situations. We are, therefore, of the opinion that it would be just and fair that the issue whether defendant 1 was a tenant in respect of the lands in question should be referred to the Mamlatdar for decision and after his decision is received by the civil Court if the issue is held against defendant 1, the civil Court may consider passing of a decree in eviction but if on the other hand he is held to be tenant, the civil Court may be required to dismiss the suit.” The same view has been taken by the Hon’ble apex Court in Mrs. Judith Fernandes and others v. Conceicao Antonio Fernandes and another [ AIR 1996 SC 2821 ]. 19. Judith Fernandes and others v. Conceicao Antonio Fernandes and another [ AIR 1996 SC 2821 ]. 19. Having gone through the apex Court’s judgment, it is inferred that after coming into force of the Act and establishment of the Family Court under section 3 of the Act on 8.3.2002 in the Municipal Corporation area Gwalior, the learned trial Court had no jurisdiction to proceed with the suit. Consequently, the impugned judgment and decree passed by learned Court is found to be without jurisdiction. On account of this, the impugned judgment and decree has the effect of nullity. It is also inferred that after establishment and coming into force of the Family Court, all the proceedings after 8.3.2002 cannot be held to be legal. However, entire suit cannot be dismissed because, when the suit was filed on 1.5.2000, the learned trial Court had jurisdiction to entertain the suit and during pendency of the suit, jurisdiction of the learned trial Court ousted by coming into force of the Family Court as stated earlier. In view of the facts, it would be apt to transfer the case as per provisions of section 8(c) of the Act from learned trial Court to the Family Court Gwalior which has jurisdiction to entertain the suit after its establishment under section 3 of the Act. 20. Having considered the submissions made by the learned counsels for both the parties, allowing the apeal, the impugned judgment and decree passed by learned trial Court is hereby set aside being without jurisdiction and all the proceedings of the trial Court after establishment of the Family Court at Gwalior on 8.3.2002 are also cancelled as being found to be without jurisdiction. The suit is transferred as per section 8(c) of the Act to the Family Gwalior from learned trial Court for a fresh decision as per provisions of law mentioned before. The parties are directed to appear before the Family Court Gwalior on 26.8.2013. Office is directed to send the record along with a copy of this judgment to the trial Court and the trial Court in turn shall immediately transfer it to the Family Court and inform the parties concerned for appearance before the Family Court Gwalior on 26.8.2013. The Family Court is directed to decide the case on the priority as early as possible as the case is old one and has been pending since 2000. The Family Court is directed to decide the case on the priority as early as possible as the case is old one and has been pending since 2000. Considering the facts, no order as to the costs. Decree be drawn up accordingly. .............