IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR Regular First Appeal No.441 of 2016 (DEC/PAR) BETWEEN :
MRS. SANDHYA SHANKAR @ SANDHYA GONI W/O. SRI. ASHOK GONI AGED ABOUT 40 YEARS R/O. NO.2, AJANTHA APARTMENTS, TF-302, N.N. FORMS, 40 FEET ROAD, SANJAY NAGAR, R.M.V. II STAGE, BANGALORE-94.
... APPELLANT (BY SRI K.R. KRISHNAMURTHY, ADVOCATE) AND :
1. SRI ASHOK S. GONI S/O. SRI. SHIVARAJ K. GONI, AGED ABOUT 57 YEARS R/O. NO.18, 5TH MAIN ROAD, MUNIRAMAPPA GARDEN, SANJAYNAGAR, RMV II STAGE, BANGALORE-94.
2. SMT. SHANTHA S. GONI W/O. LATE DR. S. K. GONI, AGED ABOUT 84 YEARS R/O. NO.18/1, 5TH MAIN ROAD, MUNIRAMAPPA GARDEN, SANJAYNAGAR, RMV II STAGE, BANGALORE-94.
3. SRI. DEVAN SEJPAL S/O. SRI. PRAFUL SEJPAL AGED ABOUT 40 YEARS R/O. NO. MF-MO, “GONI FAIRFIELD” APARTMENTS, NO.52, 40FT. ROAD, MUNIRAMAPPA GARDEN, GEDDALAHALLI, BANGALORE-94.
4. SMT. RAJASHREE HARINDRA W/O. LATE B. HARINDRA AGED ABOUT 61 YEARS R/O. NO.30, 6TH CROSS, ARMANNDA COLONY, SULTHANAPALYA, R.T. NAGAR POST, BANGALORE-32.
5. MISS. RAMYA BALAPPA D/O. LATE B. HARINDRA AGED ABOUT 26 YEARS R/O. NO.30, 6TH CROSS, ARMANNDA COLONY, SULTHANAPALYA, R.T. NAGAR POST, BANGALORE-32.
6. SRI. VINAY KUMAR R. S/O. D. RANGANATH AGED ABOUT 32 YEARS R/O. NO.301B, 3RD FLOOR, PARANDHAMA APARTMENTS, 6TH ‘A’ CROSS, SADASHIVANAGAR, BANGALORE-32.
7. SRI. JADHAV LAKSHMAN SANATH S/O. LAKSHMAN RAO JADHAV AGED ABOUT 50 YEARS R/O. 295, 6TH “A” MAIN, HMT LAYOUT, R.T. NAGAR POST, BANGALORE-32.
8. SMT. KAVITHA SANATH W/O. SRI. JADHAV LAKSHMAN SANATH AGED ABOUT 50 YEARS R/O. 295, 6TH ‘A’ MAIN, HMT LAYOUT, R.T. NAGAR POST, BANGALORE-32.
(BY SRI SANTOSH GOGI, ADVOCATE FOR R-1;
... RESPONDENTS SRI S. VISHWAJITH SHETTY, ADVOCATE FOR R-3 & R-7; R-2, R-4, R-5 AND R-8 – SERVED AND UNREPRESENTED;
NOTICE TO R-6 – HELD SUFFICIENT V/O. DATED 14.09.2018) THIS R.F.A. IS FILED UNDER SECTION 96 & UNDER ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER DATED 09.02.2016 PASSED ON I.A NO.2 IN O.S. NO.4835/2015 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING I.A. NO.2 FILED UNDER ORDER VII RULE 11(D) READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE.
THIS R.F.A. COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed to consider I.A. No.1 of 2019, which has been filed by the appellant herein, with the consent of learned counsel on both sides it is heard finally.
2. The appellant was plaintiff in O.S. No.4835 of 2015, while the respondents herein were defendants in the said suit. The appellant filed O.S. No.4835 of 2015 seeking the following reliefs in respect of the suit schedule property:
“Plaintiff prays for judgment and decree against defendants 1 to 2 :
I. Declaring that sale deed executed in favour of the 2nd defendant herein by the 1st defendant as PA Holder of the plaintiff under registered sale deed dated 09/11/2010 bearing document No.HBB-1- 01901-2010-11 stored in CD No.HBBD29, in the office of the Sub-Registrar Hebbal, Bangalore is vitiated by playing fraud and unsustainable in law and for cancellation of the said sale deed and also to send the intimation to the Sub-Registrar, Hebbal, Bangalore about such cancellation.
II. For partition and separate possession of the plaintiff’s 50% share in the unsold apartment building constructed on the schedule property together with 50% undivided right, title and interest in the land comprised in the schedule property that remained unsold as on the date of suit.
III. Directing the defendants 1 and 2 to render accounts of the profits made by them by sale of four apartments in favour of defendants 4 to 9 and to pay the plaintiff her share of the profits.
IV. For costs of this suit and to grant such other relief or reliefs as this Hon’ble court may deem fit to grant in the circumstances of the case.
SCHEDULE All that piece and parcel of the immovable property bearing Municipal No.52, bearing PID No.100-632-52, situated at 40 feet road, Muniramappa Garden, Geddalahalli, Bangalore, measuring 7480 sq.ft. together with the apartments built thereon and bounded as follows:
On the East : 40 feet road West : Storm water drain North: 25 feet road South: 30 feet road”
3. In substance, the appellant - plaintiff filed the said suit seeking cancellation of sale deed dated 09.11.2010 executed by first respondent – first defendant in the suit in favour of second respondent – second defendant and the second defendant, in turn, had executed a sale deed to defendant Nos.3 to 8 – respondent Nos.3 to 8 herein. The plaintiff also sought partition and separate possession of her half share in the unsold apartment building complex constructed on the suit schedule property together with 50% undivided right, title and interest in the land comprised in the schedule property and for a direction to defendant Nos.1 and 2 to render accounts of the profits in respect of sale of four apartments in favour of defendant Nos.4 to 9 and to pay plaintiff her share of profits.
4. In response to the suit summons and Court notices, first defendant appeared before the trial Court and filed his written statement and also an application under Order VII Rule 11(d) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’, for the sake of brevity) seeking rejection of the plaint in view of the bar contained at Section 7 Explanation (c) and Section 8(a) of the Family Courts Act, 1984 (hereinafter referred to as ‘the Family Courts Act’, for the sake of brevity). By the impugned order dated 09.02.2016 passed by I Additional City Civil and Sessions Judge, Bangalore City, the said application has been allowed and the plaint filed by the appellant – plaintiff has been rejected holding that the trial Court has no jurisdiction to entertain the suit. Being aggrieved by the impugned order, the plaintiff has preferred this appeal.
5. We have heard learned counsel for the appellant and learned counsel for the first respondent, who is the contesting respondent in this appeal and perused the material on record.
6. Appellant’s counsel drew our attention to the suit filed by the appellant – plaintiff and particularly to the plaint and the prayers sought therein, as extracted above, and contended that the reliefs sought for by the appellant, in the instant case, is not as a wife of the first respondent, her husband. The reliefs sought for by the appellant is as a principal against the power of attorney holder or agent – defendant No.1 - respondent No.1 herein and the purchasers who are the other defendants – respondents herein. That defendant No.1 incidentally happens to be the husband of appellant – plaintiff. It is contended that the dispute stems from the power of attorney executed by the appellant in favour of defendant No.1 on 11.08.2009 and the subsequent alienations of defendant No.1 on the strength of the said power of attorney; that there is no matrimonial dispute between the parties and neither is the dispute anything to do with the relationship between the plaintiff and first defendant as husband and wife. He elaborated by contending that the plaintiff is the owner of suit schedule property. She could have executed a power of attorney in favour of any person to deal with her property, being the suit schedule property. Incidentally, she executed the said power of attorney in favour of first defendant her husband. The same was not an act which was done by the plaintiff, as a wife, in favour of her husband. It was as a principal vis-à-vis an agent relationship. But the trial court has construed the dispute as a family dispute and one coming within the ambit and scope of Section 7 Explanation (c) of the Family Courts Act and has rejected the plaint on the ground of its maintainability before the said Court. He contended that the approach of the trial court is erroneous. Firstly, because the trial court has not properly appreciated the ambit and scope of Section 7 of the Family Courts Act. Secondly, the plaint has been rejected on the basis of the averments made in the written statement and not on the basis of the contents of plaint or a holistic reading of the plaint; and thirdly, the trial court has mis-construed the dispute as a family dispute and hence has rejected the plaint. He contended that the impugned order may be set aside and the appeal may be allowed and the matter may be remanded to the trial court so that the suit could be disposed of in accordance with law.
7. Per contra, learned counsel for first defendant in the suit, who is the contesting respondent in this appeal and who had filed the application under Order VII Rule 11(d) of C.P.C. supported the impugned order and contended that the dispute between the parties is essentially a dispute between the plaintiff and first defendant, who are none other than the wife and husband and second defendant is the mother-in-law of plaintiff being the mother of first defendant. He contended that the dispute arose out of the relationship between the parties as husband and wife and hence it is family dispute and one coming under Explanation (c) to Section 7(1) of the Family Courts Act and that the trial court has rightly appreciated the said aspect of the matter and has properly rejected the plaint that there is no merit in this appeal and the same may be dismissed.
8. In support of his submission, he placed reliance on the judgment of learned Single Judge of this Court in the case of H.P. Lakshmidevaraje v. G.P.Asharani alias Nandini reported in AIR 2002 Karnataka 399 (H.P. Lakshmidevaraje) and Sindhu Sidharthan v. K.K.Sidharthan reported in LAWS (KER) 2010 6 10 (Sindhu Sidharthan), wherein the husband has executed a power of attorney in favour of his wife and a dispute arose therein.
9. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
1. Whether the trial Court was justified in rejecting the plaint under Order VII Rule 11(d) read with Section 151 of C.P.C. in the instant case?
2. What order?
10. It is not in dispute that the appellant – plaintiff is the wife of first respondent – first defendant husband. It is also not in dispute that second respondent – second defendant is the mother-in-law of appellant and that the dispute has arisen vis-à-vis the suit schedule property which according to the plaintiff belongs to her. It is also not in dispute that the plaintiff had executed a power of attorney in favour of her first defendant, her husband on 11.08.2009 and on the strength of the said power of attorney, appellant’s husband had executed a sale deed in favour of his mother on 09.11.2010 which sale deed was sought to be cancelled by the plaintiff.
11. The prayers sought for by the appellant are extracted above and it is not necessary to reiterate the same. The crucial question which arises, in the instant case, is as to whether the suit filed by the appellant in the instant case as against the first respondent is a suit arising out of marital relationship between the two, as the wife and husband or whether the dispute has arisen in the instant case on account of the execution of power of attorney by the appellant in favour of first respondent, who happens to be the husband of appellant herein. The execution of power of attorney in the instant case is not based on the marital relationship between the parties. Neither is there a marital cause which has arisen between the parties in relation to the suit schedule property. The test to be applied in the instant case is, as to, whether, the appellant – plaintiff could have executed a power of attorney vis-à-vis the suit schedule property in favour of any party or person or on account of her marriage with first respondent and on account of the marital relationship had to execute the said power of attorney in favour of first respondent only. We do not think that there was any such necessity or compulsion to do so which arose out of the marital relationship between the parties. The plaintiff was at liberty to execute the power of attorney in favour of any other party, incidentally she executed the power of attorney in favour of first respondent who happens to be her husband and on account of a trust reposed in him being the husband, but not on account of the fact that the power of attorney had to be executed in favour of first respondent because of a marital relationship between the parties and he was the husband of the plaintiff.
12. Therefore, the trial Court has failed to appreciate the subtle distinction in the instant case and has straight away applied Section 7 of the Family Courts Act to the instant case, particularly clause (c) to the Explanation wherein it is stated that if there is a suit or proceeding between the parties to the marriage with respect to the property of the parties or of either of them, then such a suit would have to be filed before the Family Court. Nodoubt the Family Courts Act is a special enactment as compared to C.P.C., but the rule that the said enactment would prevail over a general enactment would not apply in the instant case for Section 7 of the special enactment, namely, the Family Courts Act does not apply at all in the instant case. If it had been a case where the Family Courts Act as well as C.P.C. were both applicable to the dispute between the parties then possibly it could have been contended that the special enactment would prevail over the general enactment. Also being a subsequent enactment, and therefore, the Family Courts Act would apply and the Family Court would have the jurisdiction and the competency to deal with the suit. But, in the instant case, on a reading of Section 7 of the Family Courts Act in light of the dispute which has arisen between the parties herein we find that Section 7 of the Family Courts Act does not apply at all to the case in hand. In the circumstances, the plaintiff rightly filed the suit by lodging the plaint before the competent Civil Court.
13. Hence, in our view, the trial court was not justified in rejecting the plaint by concluding that it had no jurisdiction to deal with the subject and that the matter had to be dealt with by the competent Family Court. As already stated, the trial Court has been impressed by the fact that the plaintiff happened to be the wife of first defendant husband and that the dispute had to be adjudicated by the Family Court. As we have already stated, incidentally the plaintiff happens to be the wife of first defendant - husband, but the dispute does not arise out of the said marital relationship. The dispute arises out of the power of attorney executed by the plaintiff in favour of defendant No.1 as a principal and according to the plaintiff as owner of the property in favour of her agent, who incidentally happens to be her husband.
14. The facts in the instant case could be contrasted with the facts in H.P. Lakshmidevaraje. In the said case, the wife filed a suit against the husband and father-in-law for recovery of movables as a wife and not in any other capacity. In the said case there was a dispute between the wife, who was the plaintiff therein vis-à-vis her husband and father-in-law and in the said case the jurisdiction to consider the said dispute was with the Family Court as per Section 7 of the Family Courts Act.
15. In the case of Sindhu Sidharthan, the dispute was with the spouses; there was a petition for divorce pending also. The husband had executed a power of attorney in favour of his wife as a wife and the grievance of the husband was the wife who was the power of attorney holder was not acting in accordance with the power of attorney inasmuch as she had alienated the properties after the instrument of power of attorney executed in her favour by her husband had been revoked. The act of revocation was communicated to her immediately, but she has refused to accept the communication; and there were other litigations between the parties which were pending before the Family Courts. The said judgment is not also applicable to the instant case. In the circumstances, the preliminary objection raised therein was considered by the Kerala High Court and it was held that the matter had to be considered by the Family Court. The facts in the said case are quite distinct from the facts in the instant case.
16. In view of the aforesaid discussion, we are of the view that the impugned order has to be set aside and is accordingly set aside. The appeal is allowed. The suit O.S. No.4835 of 2015 is restored on the file of the trial Court for being disposed of in accordance with law.
17. Since the appellant and first defendant are represented by their respective counsel, they shall appear before the concerned trial Court on 23.09.2019 without waiting for any separate notice or summons from the said Court.
18. At this stage, it is mentioned that second defendant has since died, if that is so, then the appellant plaintiff to take steps to bring her legal representatives on record one of whom is defendant No.1. Further since the other respondents herein are not represented by their respective counsel and if do not appear on 23.09.2019 before the trial Court, the trial Court shall issue fresh notices to the said defendants and dispose of the suit in accordance with law.
19. Parties to bear their respective costs.
20. In view of restoration of the suit on the file of the trial Court, any interim order or direction issued by the trial Court stands restored.
21. In view of setting aside of the impugned order and the suit being restored on the file of the trial Court, the entire amount of Court fee paid on the memorandum of appeal by the appellant herein shall be refunded to the appellant after due identification.
22. Since the suit is of the year 2015, both parties are directed to co-operate with the concerned trial Court for expeditious disposal of the suit.
23. In view of disposal of the appeal, I.A. No.1 of 2019 is allowed and disposed.
Sd/- JUDGE Sd/- JUDGE hnm