Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1933 (KAR)

Hatelsab v. Davalbi @ Afreen

2019-09-03

K.NATARAJAN

body2019
JUDGMENT : K. NATARAJAN, J. 1. Though these petitions came up before this Court for admission, with the consent of counsel appearing on both sides, they are heard finally 2. Civil petition No.100134/2018 is filed by the father-in-law and sister-in-law for transfer of original suit No.13/2018 pending on the file of the Family Court, Belagavi, whereas Civil Petition No.100060/2018 is filed by the daughter-in-law for transfer of O.S.No.628/2017 pending on the file of the Principal Civil Judge, Hubballi to Family Court Belagavi. 3. I have heard the arguments of the learned counsel for both the parties. The petitioners in Civil Petition No.100134/2018 are considered as petitioners and petitioner in Civil Petition No.100060/2018 herein referred as respondent. 4. The petitioners filed the suit in O.S.No.628/2017 pending on the file of the Civil Judge, Hubballi, now pending on the file of the I Addl. Civil Judge, Hubballi for declaration to declare the defendant (respondent herein) as not the legal representative of the deceased Mohammad Hanif and other reliefs. Whereas the respondent filed the suit claiming she is the wife of the said Mohammad Hanif, before the Family Court Belagavi in O.S.No.13/2018, claiming relief of declaration to declare that she is the legally wedded wife and legal heir of deceased Mohammad Hanif and other reliefs. Both of them filed the petition before this Court to transfer the suits vice-versa. 5. The learned counsel for the petitioners contended that the petitioner No.1 is senior citizen who is more than 67 years and his daughters are also married and property is situated at Hubballi and portion of the property sold by deceased Mohammad Hanif and for other properties, the said Mohammad Hanif said to have raised loan and bankers issued notice to both the petitioners and respondent for recovery of loan and attached the property. Such being the case, the father of Mohammad Hanif the respondents trying to enter their name in the revenue records as legal heir and deceased, whereas the petitioners being the father he is claiming the legal heir on the ground that the son of first petitioner said to have died due to the assault on the deceased during the conciliation proceedings before the Jamat at Belagavi. Due to the depression, he is said to be died. Due to the depression, he is said to be died. Therefore, their claim the respondent is not a legally entitle for the properties and it is also contended that Family Court at Belagavi has no jurisdiction to declare or granting the relief in the suit. The declaratory relief and other relief involved in the suit. Therefore, prayed for transferring the suit pending before Belagavi to Hubballi Civil Judge, Court. The learned counsel relied upon the judgment of the Hon'ble Apex Court in the case of R.Kasthuri & others Vs M.Kasthuri & Others, in Civil Appeal No(s) 432 of 2018 arising out of Special Leave Petition (civil) No.12985 of 2016. Apart from that the counsel also contended that going to Belagavi to attend the case, there is life threat to the petitioners. 6. Per contra, learned counsel for the respondent contended that respondent being the wife of deceased Mohammad Hanif, after the death of her husband, she is claiming as a legal heir of her husband, whereas the petitioners filed a suit for negative relief to declare the respondent as not legal heir of deceased which is not permissible. Further contended that the dispute between both the parties is matrimonial dispute and Civil Court has no jurisdiction to try the same. The Family Court is established under the Family Courts Act, 1984, to determine and to declare that the respondent is a widow of the deceased and not having any source of income. Therefore, going to the Hubballi is not possible apart from that respondent also contended that there is life threat to the respondent to go and appear before the Family Court and hence, prayed for dismissal of the petition filed by the petitioners and prayed to allow his petition. 7. Having heard the arguments of the counsel for both the parties, the point that arise for my consideration; (1) The petition filed by the petitioners to be transferred to Belagavi or petition filed by the respondent is required to be allowed by transferring the suit filed by the respondent to Hubballi ? (2) What order ? 8. On perusal of the averments made in both the plaint which shows that the son of the petitioner namely Mohammad Hanif, married to respondent. (2) What order ? 8. On perusal of the averments made in both the plaint which shows that the son of the petitioner namely Mohammad Hanif, married to respondent. Due to the some family dispute and subsequently the respondent residing in her parental house at Belagavi and thereafter the said Mohammd Hanif, said to be died and after his death, the dispute arose between the parties in order to enter the name of respondent as legal heir of the deceased Mohammad Hanif, which shows the main dispute is not matrimonial dispute between the parties, but the dispute is with regard bringing their name or entering their names in the revenue record as legal representative of the deceased Mohammad Hanif. 9. The petitioners claim that they are the father and sisters of the deceased Mohammad Hanif, whereas the respondent claims she is the legally wedded wife of the deceased Mohammad Hanif to succeed his property. This dispute of legal heirs has to be decided by the Civil Court. Though the Matrimonial Court i.e., the Family Court is having jurisdiction to determine the marital status or dispute regarding the matrimonial dispute between the parties of marriage including the properties, whereas the Civil Courts have jurisdiction to declare who is the actual legal heir of the deceased. Therefore, by considering the judgment of the Hon’ble Supreme Court in the case of R. Kasthuri Vs. M. Kasthuri and Anr. in Civil Appeal No.432 of 2018, wherein in an identical case, the Hon'ble Apex Court in paras 7 and 8 held as under: 7. In the present case, there is no family dispute between the plaintiffs and the defendants. The dispute arose after the demise of Guanaseelan to whom both the plaintiff No.1 and the defendant No.1 claim to be married. The other plaintiffs and defendant No.2 are the children claimed to be born out of the respective marriages. 8. The above would indicate that the dispute between the parties is purely a civil dispute and has no bearing on any dispute within a family which needs to be resolved by a special procedure as provided under the Act. No issue with regard to the institution of marriage and the need to preserve the same also arises in the present case. No issue with regard to the institution of marriage and the need to preserve the same also arises in the present case. That apart, the dispute between the parties can only be resolved on the basis of evidence to be tendered by the parties, admissibility of which has to be adjudged within the four corners of the provisions of the Indian Evidence Act, 1872. In such a proceeding it would be clearly wrong to deprive the parties of the benefit of the services of counsels. 10. In the judgment relied upon by the learned counsel for the respondent reported in the case of Balram Yadav Vs. Fulmaniya Yadav, (2016) 2 GLH 50 there is dispute between the parties where the wife sought to declare that she is the wife of a person, which clearly attracts Section 7 of the Family Court Act,1994. 11. Therefore, by considering both the aspects, the Civil Court is the right Court to decide the issue of legal heirship between both the petitioners and respondent. Even the question of dispute in respect of claiming legal heir by the respondent and prohibition under Section 58 should be considered by the trial Court on merits. 12. Therefore, without expressing any opinion in respect of status of both the parties, I find that the Civil Court at Hubli is having jurisdiction to declare the status of the parties who is the legal heir of deceased Mohammad Hanif in order to enter their names in the revenue records where parties are also said to be litigated before the Revenue Court, Hubballi and it is submitted by the counsel for the respondent that the Revenue Court has already directed the parties to approach the Civil Court. Such being the case, I deem it fit and proper to transfer the suit pending before the Family Court, Belagavi filed by the respondent to the Civil Court, Hubballi to try and dispose of the case along with the original suit filed by the petitioners in O.S.No.628/2017, as the Civil Court is having jurisdiction to entertain the suit in respect of the parties belonging to Mohammedan. 13. Insofar as apprehension of both the parties is concerned, it is submitted that the relatives of the respondent are police officials and relative of the 2nd and 3rd petitioners are also working in the police departments. 13. Insofar as apprehension of both the parties is concerned, it is submitted that the relatives of the respondent are police officials and relative of the 2nd and 3rd petitioners are also working in the police departments. Both the police officials shall not interfere in the affairs or dispute between the petitioners and respondent and they shall keep themselves away and petitioners shall not terrorize the respondents whenever they attend the Court. With the above observations, I proceed to pass the following: ORDER Petition filed by the petitioners in CP No.100134/2018 is allowed. Petition filed by the respondent in CP No.100060/2018 is dismissed. O.S.No.13/2008 pending on the file of the Family Court, Belagavi is hereby withdrawn and transferred to the I Addl. Civil Judge Court, Hubballi to try and dispose of the case along with O.S.No.628/2017. The parties shall bear their own costs. The trial Court shall endeavor to dispose of the matter as early as possible. Both the parties are directed to appear before the Court at Hubli on 14.10.2019 without any further notice.