Point of Law : 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.

JUDGMENT :

R.S.A.No.42/2022 has been filed against the judgment and decree in A.S.No.18/2019 on the file of Sub Judge, Karunagappally which arose out of judgment and decree in O.S.No.133/2015 on the file of Munsiff's Court, Karunagappally. R.S.A.No.65/2022 has been filed against the judgment and decree in A.S.No.10/2019 on the file of Sub Judge, Karunagappally which arose out of judgment and decree in O.S.No. 61/2016 on the file of Munsiff's Court, Karunagappally.

2. O.S.No. 133/2015 has been filed for partition of property belonging to late Narayanan. 1st defendant in O.S.No.61/2016 is the 1st plaintiff in O.S.No.133/2015. She claims to be the wife of late Narayanan and plaintiff Nos. 2 to 5 and the defendant are the children of Narayanan and 1st plaintiff. Defendant on other hand contended in written statement that the 1st plaintiff is not legally wedded wife of Narayanan and hence, she is not entitled to get share of property belonging to Narayanan.

3. O.S.No.61/2016 was originally filed for setting aside the will No.3/1986 dated 17.12.1986 executed by late Sri.Narayanan and subsequently amended adding prayer for declaration that the 1st defendant is not the legally wedded wife of Sri. Narayanan and further for declaring adverse possession of the plaintiff over plaint A, B and C schedule properties and also for setting aside sale deed Nos. 6579/1960 and 1232/1972 executed in favour of 1st defendant. (Parties would hereinafter be referred as per their status in O.S.No.133/2015).

4. The learned Munsiff found that issue as to the marital status of 1st plaintiff with late Narayanan arises for consideration in both cases and hence, it is in the nature of dispute specifically referred to under Section 7(1) of explanation clause (b) of the Family Courts Act. Accordingly, it was found that the Civil court has no jurisdiction to entertain the suits and hence, it is not maintainable and rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 (in short, 'the Code').

5. Aggrieved by the common order passed by the learned Munsiff, the defendant in O.S.No.133/2016 and plaintiff in O.S.No. 61/2016 filed appeal before the 1st appellate court and the 1st appellate court interpreting the provisions of Section 7 as well as placing reliance on Abraham K.S and Another v. Leena George [ILR 2017 2 Kerala 197] as well as Ammini v. Anees [2014 1 KLT 215] confirmed the order of the learned Munsiff and dismissed the appeal. Aggrieved by the same, plaintiff Nos. 2 to 5 in O.S.No.133/2015 and defendant Nos. 2 to 5 in O.S.No.61/2016 came up in these Regular Second Appeals before this Court.

6. Notice was issued to respondent in both appeals and it was duly served but there is no appearance on behalf of her. This court at the time of admission formulated the following substantial question of law:

In R.S.A.No.65/2022:

I) When the suit is filed for setting aside a will executed by the deceased, since no questions regarding marital status, validity of marriage and rights arising therefrom, are involved and since no adjudication in that regard is to be made, have not the courts below went wrong in finding that the suit is not maintainable, before the Civil Court and the Family alone has jurisdiction and authority to decide the suit ?

II) In so far as the issue involved in the suit do not relate to the legitimacy of marriage between the 1st defendant and the deceased Narayanan and no right is claimed by the 1st defendant as the legally wedded wife of deceased and the defendants 1 to 5 do not also claim any right on that basis, no adjudication as provided U/s. 7 of the Family Courts Act, is mandated and therefore, have not the Courts below erred in finding that a Civil Court has no jurisdiction to entertain the suit and only Family Court alone has jurisdiction to try and decide the suit ?

In R.S.A.No.44/2022

I) When the suit is filed for partition and separate possession of the properties, on the basis of outright sale deed and also a Will executed by the