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2019 Supreme(Kar) 1668
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.V. NAGARATHNA, ASHOK G. NIJAGANNAVAR, JJ.
Mrs. Sandhya Shankar @ Sandhya Goni W/o. Sri. Ashok Goni - Appellant
Versus
Sri Ashok S. Goni S/o. Sri. Shivaraj K. Goni & Ors. - Respondents
Regular First Appeal No.441 of 2016 (DEC/PAR)
Decided On : 14-08-2019
For the Appellant :Sri K.R. Krishnamurthy, Advocate.
For the Respondent:Sri Santosh Gogi, Advocate, Sri S. Vishwajith Shetty, Advocate.
Headnote:
Family Courts Act, 1984 - Section 7, 8(a) - Civil Procedure Code, 1908 - Order VII - Rule 11(d) - Section 151 - Immovable property - Trial Court has no jurisdiction - Whether trial Court was justified in rejecting plaint under Order VII Rule 11(d) read with Section 151 of Civil Procedure Code in instant case - Whether suit filed by appellant in instant case as against first respondent is a suit arising out of marital relationship between two as wife and husband - Whether dispute has arisen in instant case on account of execution of power of attorney by appellant in favor of first respondent who happens to be husband of appellant herein – Whether appellant – plaintiff could have executed a power of attorney vis-à-vis suit schedule property in favor of any party or person or on account of her marriage with first respondent and on account of marital relationship had to execute said power of attorney in favor of first respondent only - In substance appellant - plaintiff filed said suit seeking cancellation of sale deed executed by first respondent – first defendant in suit in favor of second respondent – second defendant and second defendant in turn had executed a sale deed to defendant Nos.3 to 8 – respondent Nos.3 to 8 herein - Plaintiff also sought partition and separate possession of her half share in unsold apartment building complex constructed on suit schedule property together with undivided right title and interest in land comprised in schedule property and for a direction to defendant Nos.1 and 2 to render accounts of profits in respect of sale of four apartments in favor of defendant Nos.4 to 9 and to pay plaintiff her share of profits - In response to suit summons and Court notices first defendant appeared before trial Court and filed his written statement and also an application under Order VII Rule 11(d) read with Section 151 of Code of Civil Procedure, 1908 seeking rejection of plaint in view of bar contained at Section 7 Explanation (c) and Section 8(a) of Family Courts Act, 1984 – Held, Trial Court has failed to appreciate subtle distinction in instant case and has straight away applied Section 7 of Family Courts Act to instant case particularly clause (c) to Explanation wherein it is stated that if there is a suit or proceeding between parties to marriage with respect to property of parties or of either of them then such a suit would have to be filed before Family Court – No doubt Family Courts Act is a special enactment as compared to C.P.C., but rule that said enactment would prevail over a general enactment would not apply in instant case for Section 7 of special enactment namely Family Courts Act does not apply at all in instant case - If it had been a case where Family Courts Act as well as C.P.C. were both applicable to dispute between parties then possibly it could have been contended that special enactment would prevail over general enactment - Also being a subsequent enactment and therefore Family Courts Act would apply and Family Court would have jurisdiction and competency to deal with suit - But in instant case on a reading of Section 7 of Family Courts Act in light of dispute which has arisen between parties herein court find that Section 7 of Family Courts Act does not apply at all to case in hand - In circumstances plaintiff rightly filed suit by lodging plaint before competent Civil Court - In court view trial court was not justified in rejecting plaint by concluding that it had no jurisdiction to deal with subject and that matter had to be dealt with by competent Family Court - As already stated trial Court has been impressed by fact that plaintiff happened to be wife of first defendant husband and that dispute had to be adjudicated by Family Court - As court have already stated incidentally plaintiff happens to be wife of first defendant husband but dispute does not arise out of said marital relationship - Dispute arises out of power of attorney executed by plaintiff in favor of defendant No.1 as a principal and according to plaintiff as owner of property in favor of her agent who incidentally happens to be her husband - Facts in instant case could be contrasted with facts - In said case wife filed a suit against husband and father-in-law for recovery of movables as a wife and not in any other capacity - In said case there was a dispute between wife who was plaintiff therein vis-à-vis her husband and father-in-law and in said case jurisdiction to consider said dispute was with Family Court as per Section 7 of Family Courts Act - In case dispute was with spouses there was a petition for divorce pending also - Husband had executed a power of attorney in favor of his wife as a wife and grievance of husband was wife who was power of attorney holder was not acting in accordance with power of attorney inasmuch as she had alienated properties after instrument of power of attorney executed in her favor by her husband had been revoked - Act of revocation was communicated to her immediately but she has refused to accept communication and there were other litigations between parties which were pending before Family Courts - Said judgment is not also applicable to instant case - In circumstances preliminary objection raised therein was considered by High Court and it was held that matter had to be considered by Family Court - Facts in said case are quite distinct from facts in instant case - Appeal is allowed
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 contende
