The first defendant challenges the final decree for partition. The plaintiff is the husband of the first defendant. The 2nd defendant is their son. The plaintiff and first defendant has a daughter as well. They are Namboodiris. In the illom partition, the plaint schedule property and more extent was allotted to the plaintiff, first defendant and their children. As per a subsequent partition, the plaint schedule property was allotted to the plaintiff and defendants. Each of them has one third share in the plaint schedule property having an extent of 13.5 cents in which a residential building and a commercial building are situate. Preliminary decree declared their shares. The plaintiff filed the application for passing the final decree. A commissioner was appointed. He submitted a plan, report and account. The trial court accepted the same and passed the final judgment and decree. The defendants unsuccessfully challenged the final judgment and decree before the District Court. Dissatisfied with the concurrent findings, the first defendant has come up in Second Appeal.

2. Sri. Ranjith Thampan, the learned counsel for the appellant contended that the preliminary decree and the final decree are void in view of Section 7 of the Family Courts Act. He contended that the Family Court was established for the area and the presiding officer was appointed in 1995 much before the institution of the suit in 2002. The preliminary decree was passed on 25-7-2003 and the final decree was passed by the trial court on 30-6-2004 in an application filed in 2003. The present suit comes under Explanation (c) to sub-section (1) of Section 7 of the Family Courts Act, 1984 and therefore the civil court has no jurisdiction to deal with the suit. The decree passed in such a suit is void and non est. He also contended that the partition effected by the Commissioner is inequitable and unjust and the commercial building was not properly valued.

3. Sri A.K. Seshadri, learned counsel for the first respondent/plaintiff contended that the suit is not hit by Section 7 of the Family Courts Act. He contended that the 2nd defendant is a sharer and therefore, the suit does not come under Explanation (c) to sub section (1) of Section 7, Sri. Seshadri referred to the Commissioner’s report and account and submitted that the partition suggested is just and equitable.

4. The following substantial questions of law are raised for consideration and they are dealt with as the points for consideration:

1. Are the preliminary decree and final decree void and passed without jurisdiction since the suit was instituted and the decision was rendered by the civil court after the establishment of the Family Court under the Family Courts Act?

2. Is the partition by metes and bounds made as per the final decree just and equitable?

Point No.1:

5. Section 7 of the Family Courts Act reads (only relevant portion) as follows:

"7. 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;-

(a) -------

(b) ------

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

------"

6. Section 8 provides that where a Family Court has been established for any area, no district court or any subordinate civil court referred to in