# Kedar v. Radha Krishna Mahavidyalaya Sunderpur & Anr

- **Citation:** (2019) 2 ILRA 1033
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-30
- **Case number:** Matter Under Article - 227 No. 5239 of 2019
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kedar-v-radha-krishna-mahavidyalaya-sunderpur-anr-44548
- **Pages:** 5

## Headnote

A. Family Courts Act- Section 7(1) -
Specific Relief Act- Section 34 - Code of
Civil Procedure - Section 9- The issue as to
whether defendant No.3 is son of Bhairam or
Vishwanath would not fall within the realm of
the jurisdiction of Family Courts, which are
courts of limited jurisdiction. The relief sought
would fall under the ambit of Section 34 of the
Specific Relief Act, well within the domain of
ordinary civil courts. The impugned judgment
passed by the appellate court is accordingly
set aside. The matter is remitted to the
appellate court for deciding the appeal afresh
based on its merits in light of the observations
made above. (Para 7,8, 10 & 11)

Writ Petition allowed in part (E-8)

List of Cases Cited: -

## Text

2 All. Kedar Vs Radha Krishna Mahavidyalaya Sunderpur & Anr.
1033
applying the multiplier of 15 alongwith
the amount under the conventional heads
as
indicated
above.
Therefore
the
judgment and award passed by the learned
Tribunal is liable to be modified and the
appellant/ claimant is held entitled to a
compensation which is calculated as
follows:.

1
Income
Rs.15,000/-
2
After deduction @ 1/3rd Rs.10,000/-
3
Multiplier(15);10,000/-
x15
Rs.1,50,000
/-
4
Loss of estate
Rs.15,000/-
5
Loss of consortium
Rs.40,000/-
6
Funeral expenses
Rs.15,000/-

Total (3+4+5+6)
Rs.2,20,000
/-

16. In view of above, the F.A.F.O
No.16 of 2004: Gaya Prasad versus Smt.
K. Trivedi and another is partly allowed
and
judgment
and
award
dated
07.10.2003 passed by Additional District
Judge, Court No.9/ Motor Accident Claim
Tribunal
in
Motor
Accident
Claim
Petition No. 259 of 2001(Gaya Prasad
versus Smt. K. Trivedi and another)
stands modified to the extent indicated
above in paragraph 15. The appellants are
entitled for Rs.2,20,000/- as compensation
alongwith interest at the rate of 8% per
annum awarded by the Tribunal, which
shall be paid by the respondents after
adjusting the amount paid, if any, within a
period of two months from today.

17. No order as to costs.

18. Office is directed to remit the
lower court record to the concerned
Tribunal forthwith within a period of four
weeks.
----------

(2019)10ILR A 1033

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2019

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Matter Under Article - 227 No. 5239 of 2019

Kedar ...Petitioner
Versus
Radha Krishna Mahavidyalaya
Sunderpur & Anr. ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Pandey

Counsel for the Respondents:
Sri Jai Prakash Rai

A. Family Courts Act- Section 7(1) -
Specific Relief Act- Section 34 - Code of
Civil Procedure - Section 9- The issue as to
whether defendant No.3 is son of Bhairam or
Vishwanath would not fall within the realm of
the jurisdiction of Family Courts, which are
courts of limited jurisdiction. The relief sought
would fall under the ambit of Section 34 of the
Specific Relief Act, well within the domain of
ordinary civil courts. The impugned judgment
passed by the appellate court is accordingly
set aside. The matter is remitted to the
appellate court for deciding the appeal afresh
based on its merits in light of the observations
made above. (Para 7,8, 10 & 11)

Writ Petition allowed in part (E-8)

List of Cases Cited: -

1. Samar Kumar Roy vs. Jharna Bera, (2017) 9
SCC 591
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. Heard counsel for the parties.

2. The instant petition is directed
against the order dated 4.4.2019 passed by
District Judge, Ghazipur in Misc. Civil
Appeal No. 17 of 2018 disposing of the
appeal filed by the petitioner with a
direction to the trial court to decide issue
relating to jurisdiction in the light of the
observations made in the order, before
proceeding further in the matter. The
appeal was directed against the order
dated 9.3.2018 passed in Original Suit
No. 722 of 2017, whereby the application
for temporary injunction filed by the
plaintiff-petitioner was rejected. The
relief
claimed
in
the
suit
is
for
cancellation
of
sale
deed
dated
13.10.2016 executed by defendant No.3,
Mangala in favour of defendants no. 1 and
2; for permanent injunction restraining the
defendants
from
interfering
in
the
possession of the plaintiff in respect of the
suit property or raising constructions over
the same without getting the property
partitioned; and for declaration that
defendant No.3 Mangala is son of late
Vishwanath
and
not
Bhairam.
The
appellate court, while deciding the appeal,
has held that the main issue involved in
the suit is whether defendant No.3 is son
of Bhairam or Vishwanath. It has
observed that the said issue would fall
within the jurisdiction of Family Court in
view of Clause (e) of the Explanation of
sub-section (1) of Section 7. In the
aforesaid backdrop, the above direction
had been issued by the appellate court.

3. Counsel for the petitioner
submitted that the issue relating to
parentage of defendant No.3 cropped up
in relation to title to the suit property. The
suit does not involve adjudication of any
dispute between spouses nor any dispute
arising
out
of
any
matrimonial
relationship. It also does not involve any
declaration as to legitimacy of the
defendants. The submission is that the
Family Courts are constituted with the
object of settlement of family disputes
and not of the nature, as has been raised in
the suit.

4. On the other hand, learned
counsel for the respondents submitted that
since the main issue involved is whether
defendant No.3 is son of Bhairam or not,
therefore, the said issue would fall
squarely under Clause (e) of Explanation
of sub-section (1) of Section 7 of the
Family Courts Act. He further placed
reliance upon clause (d) which provides
for a suit or proceeding for an order or
injunction in circumstances arising out of
a matrimonial relationship to be decided
by a Family Court.

5. Before proceeding to consider the
submissions, it would be apposite to take
note of the plaint case. The suit was
instituted by the plaintiff-petitioner with
the allegation that the suit property
belonged to his ancestor Khelawan. He
was survived by his son Sundar. Sundar
had three sons; Mukhram, Bhairam and
Rajdev. Mukhram died issueless. Bhairam
had two sons, namely the plaintiffpetitioner and defendant No.2, Subedar. It
is alleged that Mangala, defendant No.3 is
son of Vishwanath. According to the
plaint assertions, father of defendant
No.3, Vishwanath was resident of a
different village. He had no connection
with the family of the plaintiff and his
ancestors. Defendant No.3 fraudulently
succeeded in getting his name entered in
the municipal records showing himself as
son of Bhairam and on basis thereof, he
2 All. Kedar Vs Radha Krishna Mahavidyalaya Sunderpur & Anr.
1035
illegally transferred the suit property in
favour of defendant-respondent 1st set
alleging himself to be a co-sharer in the
properties left behind by Khelawan and
Sundar. In essence, the plaint case was
that the defendant No.3 wrongly claimed
himself to be co-sharer of the suit
property as he is in no manner connected
with the family of Sundar and Bhairam.

6. The defendants, on the other
hand, have denied the plaint assertions
and claim that defendant No.3 is son of
Bhairam.

7. No doubt, having regard to the
pleadings of the parties and the relief sought,
one of the main issues to be decided by the
trial court is whether defendant No.3 is son of
Bhairam or not. In case it is held that he is son
of Bhairam, the plaint case would stand
demolished. On the other hand, if it is
established that he is son of Vishwanath, then
definitely the sale deed executed by him,
asserting himself to be a co-sharer in the
properties kept behind by Bhairam, would be
void.

8. Section 9 of the Civil Procedure
Code provides that all suits of civil nature
except suits of which cognizance is either
expressly or impliedly barred, shall be
tried by the civil courts. The first
Explanation provides that a suit in which
right to property is contested is a suit of
civil nature, notwithstanding that such
right may depend entirely on the decision
of questions as to religious rites or
ceremonies. The jurisdiction of the civil
court to try a suits involving right to
property is thus expressly recognised. It is
also well settled that in dealing with the
question whether a civil court has or has
not jurisdiction to entertain a suit, every
presumption has to be made in favour of
jurisdiction of the civil court, unless there is
express or implied bar. The Family Courts
Act, 1984 (hereinafter referred to as 'the Act')
was enacted by the Parliament to provide for
the establishment of Family Courts with a
view to promote conciliation in, and secure
speedy settlement of disputes relating to
marriage and family affairs and for matters
connected therewith. The statement of objects
and reasons, interalia, provides that Family
Courts are being setup for settlement of family
disputes where emphasis should be laid on
conciliation and achieving socially desirable
results and adherence to rigid rules of
procedure and evidence should be eliminated.
One of the object of the legislation was to
confer exclusive jurisdiction upon Family
Courts in matters relating to:-

"(i) matrimonial relief, including
nullity of marriage, judicial separation,
divorce, restitution of conjugal rights, or
declaration as to the validity of a marriage or
as to the matrimonial status of any person;

(ii) the property of the spouses
or of either of them;

(ii)
declaration
as
to
the
legitimacy of any person;

(iv) guardianship of a person or
the custody of any minor;

(v)
maintenance,
including
proceedings under Chapter IX of the Code
of Criminal Procedure;"

9. Section 7 of the Act, lays down
the jurisdiction of a Family Court and it
provides as follows:-

"7. Jurisdiction.- (1) Subject to
the other provisions of this Act, a Family
Court shall-
1036 INDIAN LAW REPORTS ALLAHABAD SERIES

(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) a suit or proceeding between
the parties to a marriage for a decree of
nullity
of
marriage
(declaring
the
marriage to be null and void or, as the
case may be, annulling the marriage) or
restitution of conjugal rights or judicial
separation or dissolution of marriage;

(b) a suit or proceeding for a
declaration as to the validity of a
marriage or as to the matrimonial status
of any person;

(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;

(e) a suit or proceeding for a
declaration as to the legitimacy of any
person;

(f) a suit or proceeding for
maintenance;

(g) a suit or proceeding in
relation to the guardianship of the person
or the custody of, or access to, any minor.

(

2)
Subject
to
the
other
provisions of this Act, a Family Court
shall also have and exercise-

(a) the jurisdiction exercisable by a
Magistrate of the First Class under Chapter IX
(relating to order for maintenance of wife,
children and parents) of the Code of Criminal
Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be
conferred on it by any other enactment."

10. The Explanation to sub-section
(1) of Section 7 enumerates the disputes which
are in the exclusive jurisdiction of Family
Courts. It interalia provides that a suit or
proceeding between the parties to a marriage
with respect to the property of the parties or of
either of them or a suit or proceeding for an
order or injunction in circumstances arising out
of a matrimonial relationship or a suit or
proceeding for a declaration as to the legitimacy
of any person is in the exclusive domain of
Family Court. There is no dispute as to whether
defendant was born out of the wedlock between
Bhairam and his wife and he is their legitimate
son or not but rather the dispute is whether he is
son of Bhairam or Vishwanath, who has no
connection with the family of the plaintiff. Thus,
the issue of legitimacy is not at all involved, nor
Clause (e) of Explanation to sub-section I of
section 7 gets attracted. The phrase 'matrimonial
relationship' used in Clause (d) of the
Explanation to sub-section 1 of section 7 would
mean the relationship arising out of marriage
between two persons. It is never intended that it
would take within its sweep all disputes to
property based on lineage of a person. A dispute
as to whether A is son of 'X' or 'Y' so as to entitle
2 All. Ashok Kumar Pandey Vs State of U.P. & Ors.
1037
him to succession of property is definitely not a
dispute arising out of a matrimonial relationship.

11. The Supreme in Samar Kumar
Roy vs. Jharna Bera, (2017) 9 SCC 591,
considered the issue as to whether declaration
sought by plaintiff that defendant is not his
legally wedded wife and that she has no right
to his property could be given by civil court or
the suit has to be instituted before the Family
Court, in view of the Sections 7 and 8 of the
Act. After considering the reports of Law
Commission, scheme of the Act, and Section
34 of the Specific Relief Act, the Supreme
Court held that:-

"16. On a reading of the aforesaid
propositions, it is clear that the examination of
the remedies provided and the scheme of the
Hindu Marriage Act and of the Special
Marriage Act show that the statute creates
special rights or liabilities and provides for
determination of rights relating to marriage.
The Acts do not lay down that all questions
relating to the said rights and liabilities shall be
determined only by the Tribunals which are
constituted under the said Act. Section 8(a) of
the Family Courts Act excludes the Civil
Court's jurisdiction in respect of a suit or
proceeding which is between the parties and
filed under the Hindu Marriage Act or Special
Marriage Act, where the suit is to annul or
dissolve a marriage, or is for restitution of
conjugal rights or judicial separation. It does
not purport to bar the jurisdiction of the Civil
Court if a suit is filed under Section 34 of the
Specific Relief Act for a declaration as to the
legal character of an alleged marriage. Also as
was pointed out, an exclusion of the jurisdiction
of the civil courts is not readily inferred. Given
the line of judgments referred to by the High
Courts, and given the fact that a suit for
declaration as to legal character which
includes the matrimonial status of parties to a
marriage when it comes to a marriage which
allegedly has never taken place either de jure
or de facto, it is clear that the civil court's
jurisdiction to determine the aforesaid legal
character is not barred either expressly or
impliedly by any law."

12. Applying the principles laid
down by the Supreme Court and having
regard to the scheme of the Act, the
irresistible conclusion is that the view
taken by the Appellate Court is not
sustainable in law.

13. The issue as to whether defendant
No.3 is son of Bhairam or Vishwanath would
not fall within the realm of the jurisdiction of
Family Courts, which are courts of limited
jurisdiction. The relief sought would fall under
the ambit of Section 34 of the Specific Relief
Act, well within the domain of ordinary civil
courts. The impugned judgment passed by the
appellate court is accordingly set aside. The
matter is remitted to the appellate court for
deciding the appeal afresh based on its merits in
light of the observations made above.

14. As a result, the petition succeeds
in part. No order as to costs
----------

(2019)10ILR A 1037

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal (Against Acquittal) (u/s 378(4)
of Cr.P.C.) No. 116 of 2019

Ashok Kumar Pandey
 ...Appellant/Complainant
Versus
State of U.P. & Ors. ...Opposite Parties