The main legal point established in the judgment is the exclusion of jurisdiction under Sections 7 and 8 of the Family Courts Act, 1984, and the lack of inherent jurisdiction of the court below to entertain, adjudicate, and decide on the matters enumerated in Section 7 of the FC Act.

Thottathil B. Radhakrishnan, J.

This appeal is by the 1st defendant in O.S.No.No.473 of 2008 filed before the Sub Court, Ernakulam claming certain reliefs, which, in our view, fall within those matters enumerated under Section 7 and the Explanation thereto, of the Family Courts Act, 1984, for short, the ‘FC Act’. At hearing, there is also no serious dispute to this situation.

2. The marriage between the plaintiff and the 1st defendant ended in a divorce. An apartment in a complex, of which, the 2nd defendant is a builder, stands in the name of the 1st defendant, the divorced wife. The plaintiff sued for a declaration that the said apartment was obtained by spending his funds and, therefore, he has title to that apartment. This squarely falls within the matters enumerated in Section 7 of the FC Act, notwithstanding the fact that the marital tie between the plaintiff and the 1st defendant snapped even before the institution of the suit. We find that the plaintiff and the then employees of the 2nd defendant builder were examined as PWs.1 to 3 and the son of the couple was examined as DW1. Documentary evidence was also let in. The suit was decreed. Counter claim of the 1st defendant was dismissed. It is hence that the 1st defendant has appealed.

3. Before proceeding on to the merit of the rival contentions on the basis of pleading and evidence, we note that long before the institution of the suit before the Sub Court, the territory within which the apartment comes, was covered by the notification constituting the Family Court, Ernakulam. Obviously, therefore, the suit ought to have been laid only before the Family Court, Ernakulam. This is the net effect of the exclusion of jurisdiction resulting out of the operation of Section 8 of the FC Act. This proposition is also not disputed.

4. However, the learned counsel for the parties suggested that even if the court below did not have jurisdiction, the High Court, as the appellate court under the Act, would have the jurisdiction to try and decide the matter, and that, if for any reason, the High Court is of the view that the matter could not have been entertained by the Sub Court, it could be considered for transfer to the Family Court drawing support from the decision of the Apex Court in Nahar Industrial Enterprises Ltd. V. Hong Kong Industrial Enterprises Ltd. ((2009) 8 SCC 646). It is also pointed out that the suit could be ordered to be transferred in view of the power of this Court under Section 24(2) of the Code of Civil Procedure and the evidence having been adduced before a judicial authority, the same could be considered by the transferee court on orders by this Court.

5. At out request, Senior Adv. Sri. T. Krishnanunni very graciously assisted us as amicus curiae and took us through the relevant provisions, elucidating the nuances thereof. He said that the Family Court, do not have any appellate court other than the High Court, is not part of any independent stream with a hierarchy of courts or tribunals and, hence, the ratio of the decision in Nahar’s case (supra) could be applied. He however, rightly sounded that the exclusion of jurisdiction in terms of Section 8 of the FC Act read in the light of Section 7 of the FC Act tend to show that the Sub Court could not have entertained the suit. He said that the conflict between different High Courts as to whether a proceeding pending before a court with no jurisdiction could be transferred, has been settled by the 1976 Amendments to the CPC by the introduction of sub section (5) of Section 24. He rightly says that Section 24 (1), read in the light of sub section (5) of Section 24 of the CPC enables the High Court to transfer a matter pending before a court which has no jurisdiction to a court which could have jurisdiction. Dilating on the scope of sub section (2) of Section 24 of the CPC, he pointed out that the jurisdiction of the High Court under Section 24(2) is co-extensive with its power under Section 24(1) and