Sections 16 and 17 of the C.P.C. are part of the
one statutory scheme. Section 16 contains general
principle that suits are to be instituted where
subject-matter is situate whereas Section 17 engrafts
an exception to the general rule as occurring in
Section 16. From the foregoing discussions, we arrive
at following conclusions with regard to ambit and
scope of Section 17 of C.P.C.
(i) The word ‘property’ occurring in Section 17
although has been used in ‘singular’ but by
virtue of Section 13 of the General Clauses Act
it may also be read as ‘plural’, i.e.,
”properties”.
(ii) The expression any portion of the property can
be read as portion of one or more properties
situated in jurisdiction of different courts
and can be also read as portion of several
properties situated in jurisdiction of
different courts.
(iii) A suit in respect to immovable property or
properties situate in jurisdiction of different
courts may be instituted in any court within
whose local limits of jurisdiction, any portion
of the property or one or more properties may
be situated.
(iv) A suit in respect to more than one property
situated in jurisdiction of different courts
can be instituted in a court within local
limits of jurisdiction where one or more
properties are situated provided suit is based
on same cause of action with respect to the
properties situated in jurisdiction of
different courts.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1052 OF 2019
SHIVNARAYAN Vs MANIKLAL
ASHOK BHUSHAN,J.
Dated:February 06, 2019.
This appeal has been filed by the appellant
against the judgment of High Court of Madhya Pradesh
dated 13.11.2013 by which judgment writ petition
filed by the appellant challenging the order dated
17.08.2011 of the III Additional District Judge,
Indore in Civil Suit No.60-A of 2010 has been upheld
dismissing the writ petition.
2. Brief facts of the case necessary to be noticed
for deciding this appeal are:-
2.1 The appellant filed Civil Suit No.60-A of
2010 before the District Judge praying for
declaring various transfer documents as null
and void with regard to suit property
mentioned in Para No. 1A and Para No.1B of
the plaint. Plaintiff also prayed for
declaration that suit properties mentioned
in Para Nos.1A and 1B are Joint Family
Property of plaintiff and defendant Nos. 1
to 3 and plaintiff is entitled to receive
1/3rd part of the suit property. A Will
executed by one Lt. Smt. Vimal Vaidya was
also sought to be declared to be null and
void. Certain other reliefs were claimed in
the suit. The parties shall be referred to
as described in the suit. The plaintiff in
Para No.2 of the plaint has set the
following genealogy of the parties:-
“Kaluram Bairulal Vaidya
(Since Deceased dt. 15/08/1969)
Shankarlal Maniklal Babulal Shivnarayan
(20/04/98) (Dft. No.1) (4/11/75)
(Plaintiff)
(Deceased) (Deceased)
Vimal
Leelbai Sushilaben (25.11.2007)
Def. No.2 Def. No.3 (Wife of Deceased)”
2
2.2 In Para No.1 of the plaint, description of
the property was mentioned to the following
effect:-
1.A) Plot No. SP 79, Sudama
Nagar Indore (M.P.) size 30
ft. X 50 ft. area 1500 Sq. Ft.
through membership no. 2905 of
Shikshak Kalyar Samiti, Sudama
Nagar, Indore.
B) Bombay Suburban District S.
No. 341, Pt. of Bandra Grant
Flat No.C/1/3, Sahitya Sahavas
Co-op. Housing Society, Second
Floor, building known as
“Abhang” Bandra (E), Mumbai-
400 051 situated on the plot
bearing no. C.T.S. No. 629,
(S. No. 341-A.B.S.D.)
Madhusudan Kalekar Marg,
Gandhinagar, Bandra (East)
Mumbai – 51.
2.3 The plaintiff sought relief with regard to
two properties (hereinafter referred to as
Indore property, situate at Indore, State of
Madhya Pradesh and Mumbai property situate at
Mumbai, State of Maharashtra). Plaintiff’s
case in the plaint was that Indore Property
was purchased by plaintiff’s father in the
year 1968-1969. Plaintiff’s father died on
15.08.1969. Thereafter, Indore property was
joint family property of the plaintiff and
defendant Nos. 1 to 3. Plaintiff’s brother
Babulal shifted to Pune. Babulal was
allotted Mumbai property under a Government
Scheme for extraordinary persons like writers
and educationist. Babulal died in the year
1975. Thereafter, the Mumbai property, on
the basis of succession certificate issued by
Court of Civil Judge (Senior Division), Pune
came in the name of widow of Babulal, Smt.
Vimal Vaidya. Smt. Vimal Vaidya transferred
the Mumbai flat by sale deed dated 15.10.2007
in favour of defendant Nos. 7 and 8. It was
further pleaded in the plaint that Smt. Vimal
Vaidya also dealt with Indore Property. The
name of Smt. Vimal Vaidya was mutated in the
year 1986 in the Indore property and
thereafter she transferred the Indore
property in favour of defendant Nos. 9 and
10. One set of pleadings was with regard to
a Will executed in the year 2000 by Smt.
Vimal Vaidya in favour of defendant Nos. 4 to
6. On aforesaid pleadings, following reliefs
were prayed in Para No. 25 of the plaint:-
“A) The property mentioned in Para
No.1 of the Plaint and its deed
of transfer documents be declared
null and void which is not
binding on the part of the
plaintiff.
B) The property mentioned in Para
No.1B of Plaint and document
related to its registered deed to
transfer be declared null and
void and which is not binding on
the part of Plaintiff.
C) The property mentioned in Para
No. 1A and 1B of the Plaint is
joint family property of the
Plaintiff and defendant No. 1 to
3 be declared joint family
property and Plaintiffs right to
receive 1/3 part of the suit
property.
D) Court Commissioner be appointed to
make division of suit property
and 1/3 part possession be given
to the Plaintiff.
E) During the hearing of the suit
injunction order be passed in
respect of the property not to
create third party interest by
the Defendants.
F) Plaintiff's suit be declared
decreed with the expenses.
G) To grant any other relief which
this Hon'ble Court may be fit in
the interest of justice.
H) The forged will executed by Late
Vimal Vaidya under influence of
defendant No. 4 and his
associates relatives Defendant
No. 5 and 6 and other relatives
of Kher family. Because, Late
Babulal Vaidya was a member of
5
undivided Hindu family.
Therefore, Late. Vimal Vaidya was
not authorized to execute that
alleged will as per the Law.
Therefore, the registered alleged
will be declared null and void
and be declared that it is not
binding on the part of the
Plaintiff.”
2.4 The defendant Nos. 7 and 8 appeared in suit
and filed an application with the heading
“application for striking out pleadings and
dismissing suit against defendants No.7 and 8
for want of it territorial jurisdiction and
mis-joinder of parties and causes of action.”
The defendant Nos. 7 and 8 pleaded that for
property being situated at Bandra East,
Mumbai, the Court at Indore has no
territorial jurisdiction. It was further
pleaded by the defendant that suit suffers
fatally from mis-joinder of parties as well
as causes of action. The defendant Nos. 7
and 8 pleaded that there is no nexus at all
between the two properties – one situate at
Indore and other at Mumbai. Details of
different causes of action and nature of the
properties, details of purchasers for both
different sale transactions have been
explained in detail in Para No. 6 of the
application. It was further pleaded that
Mumbai property does not form asset of any
Hindu Undivided Family. Mumbai property was
acquired by Babulal in his own name and after
his death on the basis of succession, it has
come to his sole heir Smt. Vimal Vaidya in
the year 1975. It was pleaded that no part
of the cause of action for the Mumbai
property took place in Indore. In the
application, following reliefs has been
prayed for by the defendant Nos. 7 and 8:-
“(a) All the pleadings and the relief
clauses relating to the property
situate at Mumbai may kindly be
ordered to be struck off from
the plaint, in exercise of
powers conferred on this Hon’ble
Court under Order 6 Rule 16 of
the Civil Procedure Code, and as
a consequence the suit against
the defendants No.7 and 8 may
kindly be dismissed with costs
for the answering defendants;
while the Suit relating to the
Indore property may be continued
if otherwise round maintainable
under the law;
OR in the alternative,
An order may kindly be passed
declining to entertain the part
of the suit relating to the
property in Mumbai with costs
for the answering defendants;
and
(b) Such other order may kindly be
passed as may be deemed
appropriate in the circumstances
of the case.”
2.5 The trial court after hearing the parties on
the application dated 19.03.2011 filed by the
defendant Nos. 7 and 8 passed an order dated
17.08.2011 allowed the application. An order
was passed deleting the property mentioned In
Para No. 1B of the plaint and the relief
sought with regard to the said property. The
trial court held that separate cause of
actions cannot be combined in a single suit.
2.6 Aggrieved by the order of the trial court, a
writ petition was filed in the High Court,
which too has been dismissed by the High
Court vide its order dated 13.11.2013
affirming the order of the trial court. High
Court referring to Section 17 of the Civil
Procedure Code, 1908 held that for property
situated at Mumbai, the trial court committed
no error in allowing the application filed by
defendant Nos. 7 and 8. The plaintiffappellant
aggrieved by the order of the High
court has come up in this appeal.
3. We have heard Shri Vinay Navare for the
appellant. Shri Chinmoy Khaladkar has appeared for
respondent Nos. 7 and 8.
4. Learned counsel for the appellant submits that
High Court did not correctly interpret Section 17 of
the Code of Civil Procedure. The partition suit
filed by the appellant with regard to Mumbai and
Indore properties was fully maintainable. He submits
that Order II Rule 2 of CPC mandates that the
plaintiff must include the whole claim in respect of
a cause of action in the suit. The cause of action
claimed by the plaintiff was denial of the
plaintiff’s right to share in the Joint Family
Property. Restrictive interpretation of Section 17
will do violence to the mandate of Order II Rule 2.
Section 39(1)(c) of the CPC itself contemplate that
there can be a decree of an immovable property, which
is situated outside the local limits of the
jurisdiction. The words “immovable property”’ used in
Section 17 is to be interpreted by applying Section
13 of the General Clauses Act. It provides that in
all Central Acts and Regulations, unless the context
and subject otherwise requires, “any singular term
shall include plural”. In event, it is accepted that
with regard to separate properties situated in
different jurisdictions, separate suits have to be
filed that shall result in conflicting findings of
different Courts and shall involve the principles of
res judicata.
5. Learned counsel appearing for defendant Nos. 7
and 8 refuting the submissions of learned counsel for
the appellant contends that no error has been
committed by trial court in deleting the property at
Para No.1B in the plaint as well as pleadings and
reliefs with regard to said property. It is
submitted that Section 17 of the CPC contemplate
filing of a suit with respect to immovable property
situated in jurisdiction of different courts only
when any portion of the property is situated in the
jurisdiction of a Court, where suit has to be filed.
The word “any portion of the property” indicate that
property has to be one whose different portions may
be situated in jurisdiction of two or more Courts.
He further submits that there is no common cause of
action with regard to property situate at Indore and
property situate at Mumbai. Transfer deed with
regard to Indore Property as well as transfer deeds
of Mumbai property are different. The purchasers of
both the properties, i.e. Indore property and Mumbai
property are also different. According to pleadings
in the plaint itself, the Mumbai property was
purchased by Babulal, the husband of Smt. Vimla
Vaidya in his own name, which after death of Babulal
in the year 1975 was mutated in the name of Smt.
Vimla Vaidya. The plaintiff has sought to club
different cause of actions in one suit. There is
mis-joinder of the parties also in the suit since the
defendants pertaining to different transactions have
been impleaded in one suit whereas there is no nexus
with the properties, transactions and persons.
Learned counsel for the defendant Nos. 7 and 8
submits that by order of Court of Civil Judge (Senior
Division), Pune, the property is already mutated in
the year 1975 in the name of Smt. Vimla Vaidya after
death of her husband, which was rightfully
transferred by her to defendant Nos. 7 and 8 on
15.10.2007. It is submitted that the Court at Indore
might proceed with the property at Indore with the
defendants, who are related to Indore property but
suit pertaining to Mumbai property, transactions
relating thereto and defendants relating to Mumbai
property have rightly been struck off from the case.
6. Before we consider the submissions of the learned
counsel for the parties, relevant provisions
pertaining to place of suing as contained in Code of
Civil Procedure needs to be noted. Section 15 to
Section 20 contains a heading “place of suing”.
Section 16 provides that Suits to be instituted where
subject-matter situate. Section 16 is as follows:-
16. Suits to be instituted where subjectmatter
situate.--Subject to the pecuniary
or other limitations prescribed by any law,
suits-
(a) for the recovery of immovable
property with or without rent or
profits,
(b) for the partition of immovable
property,
(c) for foreclosure, sale or
redemption in the case of a
mortgage of or charge upon
immovable property,
(d) for the determination of any
other right to or interest in
immovable property,
(e) for compensation for wrong to
immovable property,
(f) for the recovery of movable
property actually under
distraint or attachment,
shall be instituted in the Court
within the local limits of whose
jurisdiction the property is
situate:
Provided that a suit to obtain relief
respecting, or compensation for wrong to,
immovable property held by or on behalf of
the defendant, may where the relief sought
can be entirely obtained through his
personal obedience, be instituted either in
the Court within the local limits of whose
jurisdiction the property is situate, or in
the Court within the local limits of whose
jurisdiction the defendant actually and
voluntarily resides, or carries on
business, or personally works for gain.
Explanation.– In this section “property”
means property situate in India.
7. Section 17, which falls for consideration in the
present case, deals with suits for immovable property
situate within jurisdiction of different courts is as
follows:-
17. Suits for immovable property situate
within jurisdiction of different Courts.--
Where a suit is to obtain relief
respecting, or compensation for wrong to,
immovable property situate within the
jurisdiction of different Court, the suit
may be instituted in any Court within the
local limits of whose jurisdiction any
portion of the property is situate :
Provided that, in respect of the value
of the subject matter of the suit, the
entire claim is cognizable by such Court.
8. We need to notice the Scheme under Code of Civil
Procedure as delineated by Sections 16 and 17.
Section 16 provides that suit shall be instituted in
the Court within the local limits of whose
jurisdiction the property is situated. Section 16(b)
mentions “for the partition of immovable property”.
9. Now, we look into Section 17, which deals with
suits for immovable property situated within
jurisdiction of different Courts. As per Section 17,
the suit may be instituted in any Court within the
local limits of whose jurisdiction any portion of the
property is situated. What is the meaning of the
word “any portion of the property”? There may be a
fact situation where immovable property is a big
chunk of land, which falls into territorial
jurisdiction of two courts in which fact situation in
Court in whose jurisdiction any portion of property
is situated can entertain the suit. Whether Section
17 applies only when a composite property spread in
jurisdiction of two Courts or Section 17 contemplate
any wider situation. One of the submissions of the
learned counsel for the appellant is that the word
“property” as occurring in Section 17 shall also
include the plural as per Section 13 of General
Clauses Act, 1897. Section 13 of the General Clauses
Act provides:-
13. Gender and number.-In all Central Acts
and Regulations, unless there is anything
repugnant in the subject or context.-
(1) Words importing the masculine gender
shall be taken to include females; and
(2) words in the singular shall include
the plural, and vice versa.
10. Applying Section 13 of General Clauses Act, the
Bombay High Court explaining the word “property” used
in Section 17 held that it includes properties. We
are also of the same view that the word “property”
used in Section 17 can be more than one property or
properties.
11. The word “property” under Section 17 of the Civil
Procedure code may also be properties, hence, in a
schedule of plaint, more than one property can be
included. Section 17 can be applied in event there
are several properties, one or more of which may be
located in different jurisdiction of courts. The
word “portion of the property” occurring in Section
17 has to be understood in context of more than one
property also, meaning thereby one property out of a
lot of several properties can be treated as portion
of the property as occurring in Section 17. Thus,
interpretation of word “portion of the property”
cannot only be understood in a limited and
restrictive sense of being portion of one property
situated in jurisdiction of two courts.
12. We now look into the decisions of various Courts
in reference to Section 17 of Civil Procedure Code.
How the word “property” and “portion of the property”
occurring in Section 17 has been understood by
different High Courts. There are few decisions of
the Privy Council also where Section 17 of the Civil
Procedure Code came for consideration. In Nilkanth
Balwant Natu and Others Vs. Vidya Narasinh Bharathi
Swami and Others, AIR 1930 PC 188, Privy Council had
occasion to consider Section 17 of Civil Procedure
Code. The properties in respect of which relief was
sought by the plaintiff were situated in Satara,
Belgaum and Kolhapur. Although Satara and Belgaum
were situated in British India but Kolhapur was not.
The Privy Council after noticing the provision of
Sections 17 and 16(c) laid down following:-
“The learned Judge had jurisdiction to
try the suit so far as it related to the
mortgaged properties situate in Satara;
and, inasmuch as the mortgaged properties
in Belgaum are within the jurisdiction of a
different Court in British India, he had
jurisdiction to deal with those properties
also.”
13. The Privy Council, thus, held that Satara Court
had jurisdiction to entertain suit with regard to
property situated at Satara and Belgaum whereas it
has no jurisdiction to entertain suit pertaining to
Kolhapur, which was not in the British India. In
another case of Privy Council, Nrisingha Charan Nandy
Choudhry Vs. Rajniti Prasad Singh and Others, AIR
1936 PC 189, mortgage lands were in the Sonthal
Parganas, State of Bihar and also in the Gaya
district of State of Bihar. In Paragraph 9,
following was laid down:-
“9. Now, the mortgage deeds include, as
already stated, lands situated, not only in
the Sonthal Parganas, but also in the Gaya
District. What is the ordinary rule for
determining the court which can take
cognizance of a suit for immovable property
situated within the local limits of two or
more tribunals? The answer is furnished by
Section 17 of the Code of Civil Procedure
(Act V. of 1908), which provides that where
a suit is to obtain relief respecting
immovable property situate within the
jurisdiction of different courts, the suit
may be instituted in any court within the
local limits of whose jurisdiction any
portion of the property is situate.”
14. Different High Courts have also while
interpreting Section 17 of Civil Procedure Code laid
down that Section 17 is applicable in case where
properties are situated in the jurisdiction of more
than one court. In Rajendra Kumar Bose Vs. Brojendra
Kumar Bose, AIR 1923 Calcutta 501, the Division Bench
of the Calcutta High Court noticed following:-
“Exceptions to the rule that a suit cannot
lie for partition of a portion of the
family property have been recognised when
different portions of the family property
are situated in different jurisdictions,
aid separate suits for separate portions
have sometimes been allowed, where
different rules of substantive or adjective
law prevail in the differed Courts; Hari v.
Ganpat Rao, (1883) 7 Bom. 272; Ramacharia
v. Anantacharia, (1894) 18 Bom. 389; Moti
Ram v. Kanhaya Lal, AIR 1920 Lah. 474;
Panchanon v. Sib Chandra, (1887) 14 Cal.
835; Balaram v. Ram Chandra, (1898) 22 Bom.
922; Abdul v. Badruddin, (1905) 28 Mad.
216; Padmani v. Jagadamba, (1871) 6 B.L.R.
18
134; Rammohan v. Mulchand, (1906)28 All.
39; Lachmana v. Terimul, 4 Mad. Jur. 241;
Subba v. Rama, (1866-67) 3 Mad. H.C.R. 376;
Jayaram v. Atmaram, (1879) 4 Bom. 482;”
15. A Full Bench of Allahabad High Court in Kubra Jan
Vs. Ram Bali and Others, (1908) ILR 30 All. 560 had
occasion to consider suit, which was filed at
Bareilly with regard to Bareilly property as well as
Bara Banki property situated in two different
districts. The jurisdiction at Bareilly Court was
upheld in Paragraph Nos. 1 and 8, in which it was
laid down as follows:-
“1. This appeal has been laid before a Full
Bench by reason of a conflict in the
authorities upon a question raised in the
appeal. The suit is one by the daughter of
one Bande Ali to recover from her brother
Akbar Husain and a number of other
defendants, transferees from him, her share
in the property of her deceased father. This
property is situate in the district of
Bareilly and also in the district of Bara
Banki in Oudh. It appears that Akbar Husain
transferred the Bareilly property to the
defendants Nos. 2 to 8 and the Bara Banki
property to persons from whom the defendant
respondent Ram Bali acquired it by virtue of
a decree for pre-emption. The suit in regard
to the Bareilly property was compromised,
with the result that the claim in respect of
that property was abandoned, and the suit
proceeded as regards the Bara Banki property
only.
8. Again, it is said that after the
compromise in respect of the Bareilly
property the Court ceased to have any
jurisdiction to deal with the plaintiff's
claim, that is, that though the Bareilly
Court bad jurisdiction, when the plaint was
filed, to deal with the suit, it ceased to
have jurisdiction when portion of the
property claimed was withdrawn from the
litigation. 'It seems to me that once
jurisdiction is vested in a Court, in the
absence of a provision of law to the
contrary, that jurisdiction will not be
taken away by any act of the parties. There
is no allegation here that the plaint was
filed in the Bareilly Court with any
intention to defeat the provisions of the
Code of Civil Procedure as regards the venue
of suits for recovery of immovable property.
If any fraud of that kind had been alleged
and proved, other considerations would
arise. But in this case, as I have said, no
such suggestion has been made.”
16. Similar view was taken in Ramdhin and Others Vs.
Thakuran Dulaiya and Others, AIR 1952 Nag. 303 (Full
Bench); Basanta Priya Dei and Another Vs. Ramkrishna
Das and Others, AIR 1960 Ori. 159; Laxmibai Vs.
Madhankar Vinayak Kulkarni and Others, AIR 1968 Kant.
82; Prem Kumar and Others Vs. Dharam Pal Sehgal and
Others, AIR 1972 Delhi 90 and Janki Devi Vs. Mannilal
and Others, AIR 1975 All. 91.
17. The views of the different High Courts as well as
of the Privy Council, as noticed above, clearly
indicate that Section 17 has been held to be
applicable when there are more than one property
situated in different districts.
18. The point to be noticed is that the
permissibility of instituting suit in one Court,
where properties, which are subject matter of the
suit are situated in jurisdiction of different courts
have been permitted with one rider, i.e., cause of
action for filing the suit regarding property
situated in different jurisdiction is one and the
same. In a suit when the cause of action for filing
the suit is different, the Courts have not upheld the
jurisdiction of one Court to entertain suits
pertaining to property situated in different courts.
In this context, we need to refer to some judgments
of High Courts as well as of the Privy Council, which
has considered the issue. In Sardar Nisar Ali Khan
Vs. Mohammad Ali Khan, AIR 1932 PC 172, Privy Council
had occasion to consider the case where subject
matter of the suit were several properties situated
in jurisdiction of different courts. Suit was
instituted in Oudh (which later became part of Uttar
Pradesh). The Privy Council held that since there
was different cause of actions, the same cannot be
clubbed together. One of the properties, which was
situated in Punjab was referred to in the suit as
Khalikabad property. Although, suit with regard to
the other three properties had similar cause of
action but cause of action with regard to Khalikabad
property being found to be different, the Court held
that Section 17 Civil Procedure Code was not
applicable. Following was laid down in the case by
the Privy Council:-
“There remains the question of the
Khalikabad estate. Here the respondent
cannot succeed unless he shows that under
the terms of the deed creating the wakf he
is the trustee. That question depends upon
the construction of the deed. It is a
separate and different cause of action from
these which found the proceedings in
respect of the other three properties.
Their Lordships are unable to find any
jurisdiction for bringing the suit in
respect of this property elsewhere than in
the Court of the district where the
property is situate. Such justification
cannot in their Lordships' judgment be
found in Section 17, Civil P.C. upon which
the respondent relied.”
19. A Two-Judge Bench judgment of Allahabad High
Court has been heavily relied upon by the learned
counsel for the respondent reported in AIR 1942 All.
387, Karan Singh and Others Vs. Kunwar Sen and
Others. In the above case, suit properties were
situated in Haridwar and Amritsar. Suit was filed
in the Court of Civil Judge, Saharanpur. An
application under Section 22, Civil P.C. was filed to
determine as to whether a suit which is pending in
the Court of the Civil Judge of Saharanpur should
proceed in the corresponding Court having
jurisdiction at Amritsar in the Punjab. The Court
after noticing Section 17 held that plaintiffs were
claiming two properties against two set of
defendants, whom they alleged to be trespassers. The
Court held that unless suit is filed on one cause of
action, two properties situate in different
jurisdiction cannot be clubbed. Following was laid
down:-
“Having made these observations I must now
return to the question whether in the suit
with which we are dealing it can be said
that the relief claimed against the
Defendants in possession of the property at
Hardwar and the Defendants in possession of
the property at Amritsar arises out of the
same series of acts or transactions and
whether the two properties claimed can, for
the purposes of Section 17, be described as
a single entity. It must be admitted that
there is no apparent connection between the
transfer of the Amritsar property to Amar
Nath under the will executed by Jwala Devi
and the subsequent transfers made by him
and his successors-in-interest on the one
hand and the transfer made by Prem Devi of
the Hardwar property on the other hand. It
must be admitted also that the Plaintiffs
are not claiming the estates of Badri Das
as a whole against any rival claimant to
the estate. They are claiming two
properties against two sets of Defendants
whom they allege to be trespassers and who,
if they are trespassers, have absolutely no
connection with each other. The only
connecting link is that the Plaintiff's
claim in both the properties arose at the
time of the death of Prem Devi and that the
claim is based on the assumption that the
Defendants are in possession as the results
of transfers made by limited owners who
were entitled, during their lives, to the
enjoyment of the whole estate and the
properties comprised within it. It was held
many years ago in the case of Mst. Jehan
Bebee v. Saivuk Ram (1867) H.C.R. 1. 109,
that unconnected transfers by a Hindu widow
of properties comprised within the
husband's estate did not give rise to one
cause of action against the various
transferees. The same rule was laid down in
the case of Bindo Bibi v. Ram Chandra
(1919) 17 A.L.J. 658. In that case a
reference was made to the decision in Murti
v. Bhola Ram (1893) 16 All 165 and it was
pointed out that that was a case where a
claim was made against one Defendant who
had taken possession of different
properties in execution of one decree.
There is no doubt that that case is clearly
distinguishable from the case with which we
are dealing……………………”
20. The above judgment was subsequently relied and
explained by Allahabad High Court in Smt. Janki Devi
Vs. Manni Lal and Others, AIR 1975 All. 91. In
Paragraph No.11, following was laid down:-
24
“11. Similar view was expressed in Smt.
Kubra Jan v. Ram Bali, (1908)ILR 30 All 560
. This Full Bench decision does not appear
to have been brought to the notice of the
Division Bench hearing the case of Karam
Singh v. Kunwar Sen AIR 1942 All 387.
However, many observations made therein are
not contrary to the law laid down in the
above mentioned Full Bench case. The sum
and substance of this Division Bench case
also is that where in the facts and
circumstances of the case all the
properties can be treated as one entity a
joint trial shall be permissible but not
where they are more or less different
properties with different causes of action.
The material observations are as below:--
"........ and this implies, in my
judgment, that the acts or
transactions, where, they are
different, should be so connected as
to constitute a single series which
could fairly be described as one
entity or fact which would constitute
a cause of action against all the
defendants jointly. Whether this
necessary condition exists in any
particular case would, of course,
depend upon the nature of the case
but I am satisfied that this at least
is necessary that the case should be
such that it could be said that the
Court in which the suit was
instituted had local jurisdiction in
the first instance to deal with the
controversies arising between the
plaintiffs and each of the
defendants………………
The property must, in the particular
circumstances of the suit, be capable of
being described as a single entity. Whether
it can or cannot be so described will
depend again upon the nature of the dispute
between the parties. If there is a dispute,
for instance about a single estate which
both parties are claiming as a whole that
estate is obviously for the purposes of
that particular suit a single entity. If,
on the other hand, the owner of an estate
has a claim against unconnected trespassers
who have trespassed upon different parts of
the estate or different properties situated
within it, those parts or those properties
would not for the purposes of the dispute
between him and the trespassers be one
entity but several entities and the
provisions of Section 17, would not
apply".”
21. Thus, for a suit filed in a Court pertaining to
properties situated in jurisdiction of more than two
courts, the suit is maintainable only when suit is
filed on one cause of action.
22. Justice Verma of Allahabad High Court in his
concurring opinion in Karan Singh v. Kunwar Sen
(supra) while considering Section 17 of C.P.C. has
explained his views by giving illustration. Following
was observed by Justice Verma:
“I agree, Suppose a scattered Hindu dies
possessed of immovable property scattered
all over India at Karachi, Peshwar, Lahore,
Allahabad, Patna, Dacca, Shillong,
Calcutta, Madras and Bombay and is
succeeded by his widow who, in the course
of 40 or 50 years, transfers on different
dates portions of the property situated at
each of the places mentioned above, to
different persons each of whom resides at
the place where the property transferred to
him is situated, and the transfers are
wholly unconnected with, and independent of
one another. Upon the widow’s death the
reversioner wants to challenge these
various transfers. Learned counsel for the
plaintiffs has argued that in such a case
the reversioner is entitled to bring one
suit challenging all the transfers at any
one of the places mentioned above,
impleading all the transferees, I find it
very difficult to hold that such a result
is contemplated by the provisions of the
Code of Civil Procedure upon which reliance
has been placed and which are mentioned in
the judgment of my learned brother. I do
not consider it necessary to pursue the
matter any further. It is clear to my mind
that, if the plaintiffs; argument mentioned
above is accepted, startling results will
follow.”
23. Now, we come to submission of learned counsel for
the appellant based on Section 39 sub-section (1)
(c)of C.P.C. It is submitted that Section 39(1)(c) of
C.P.C. is also a pointer to what is intended in
Section 17. The scheme as delineated by Section 39
indicates that when a decree is passed by a Court
with regard to sale or delivery of immovable property
situated outside the local limits of the jurisdiction
of that Court it may transfer the decree for
execution to another Court. The provision clearly
indicates that a decree of Court may include
immovable property situate in local limits of that
Court as well as property situated outside the local
limits of the jurisdiction of the Court passing the
decree. Section 39(1)(C) re-enforces our conclusion
that as per Section 17 suit may be filed with regard
to immovable property situated outside the local
limit of the jurisdiction of the Court. We may,
however, add that passing a decree by a Court with
regard to immovable property situate outside the
local jurisdiction of the Court may not only confine
to Section 17 but there may be other circumstances
where such decree is passed. Section 20 of C.P.C. may
be one of the circumstances where decree can be
passed against the defendant whose property may
situate in local jurisdiction of local limits of more
than one Court.
24. We may further notice that Section 17 uses the
words ‘the suit may be instituted in any Court’. The
use of word in Section 17 makes it permissive leaving
discretion in some cases not to file one suit with
regard to immovable property situated in local
jurisdiction of more than one court. One of the
exceptions to the rule is cases of partial partition
where parties agree to keep some property joint and
get partition of some of the properties.
25. The partial partition of property is well
accepted principle with regard to a joint family. In
Mayne’s Hindu Law & Usage, 16th Edition in paragraph
485 following has been stated:
“485. Partition partial or total.-
Partition may be either total or partial. A
partition may be partial either as regards
the persons making it or the property
divided.
Partial as to properties.- It is open to
the members of a joint family to severe in
interest in respect to a part of the joint
estate while retaining their status of a
joint family and holding the rest as the
properties of an undivided family. Until
some positive action is taken to have
partition of joint family property, it
would remain joint family property.”
26. Mulla on Hindu Law, 22nd Edition also refers to
partial partition both in respect of the property and
or in respect of the persons making it. In paragraph
327 following has been stated:
“”327. Partial partition.-(1) A partition
between coparceners may be partial either
in respect of the property or in respect of
the persons making it.
After a partition is affected, if some
of the properties are treated as common
properties, it cannot be held that such
properties continued to be joint
properties, since there was a division of
title, but such properties were not
actually divided.
(2) Partial as to property.- It is open
to the members of a joint family to make a
division and severance of interest in
respect of a part of the joint estate,
while retaining their status as a joint
family and holding the rest as the
properties of a joint and undivided
family.”
The issues arising in the present case being not
related to subject of partial partition the issue
need not to be dealt with any further.
27. Learned counsel for the appellant has also
submitted that permitting filing of a separate suit
with regard to property situate in different
jurisdiction shall give rise to conflicting decision
and decision in one suit may also be res judicata in
another suit. We in the present case being not
directly concerned with a situation where there are
more than one suit or a case having conflicting
opinion we need not dwell the issue any further.
28. Sections 16 and 17 of the C.P.C. are part of the
one statutory scheme. Section 16 contains general
principle that suits are to be instituted where
subject-matter is situate whereas Section 17 engrafts
an exception to the general rule as occurring in
Section 16. From the foregoing discussions, we arrive
at following conclusions with regard to ambit and
scope of Section 17 of C.P.C.
(i) The word ‘property’ occurring in Section 17
although has been used in ‘singular’ but by
virtue of Section 13 of the General Clauses Act
it may also be read as ‘plural’, i.e.,
”properties”.
(ii) The expression any portion of the property can
be read as portion of one or more properties
situated in jurisdiction of different courts
and can be also read as portion of several
properties situated in jurisdiction of
different courts.
(iii) A suit in respect to immovable property or
properties situate in jurisdiction of different
courts may be instituted in any court within
whose local limits of jurisdiction, any portion
of the property or one or more properties may
be situated.
(iv) A suit in respect to more than one property
situated in jurisdiction of different courts
can be instituted in a court within local
limits of jurisdiction where one or more
properties are situated provided suit is based
on same cause of action with respect to the
properties situated in jurisdiction of
different courts.
29. Now, we revert to the facts of the present case
and pleadings on record. The suit filed by the
appellant contained three different sets of
defendants with different causes of action for each
set of defendants. Defendant Nos. four to six are
defendants in whose favour Will dated 15.02.2000 was
executed by late Smt. Vimal Vaidya. In the plaint,
relief as claimed in paragraph 25(H)is the will
executed by late Smt. Vimal Vaidya was sought to be
declared as null and void. The second cause of action
in the suit pertains to sale deed executed by late
Smt. Vimal Vaidya dated 15.10.2007 executed in favour
of defendant Nos.7 and 8 with regard to Bombay
property. The third set of cause of action relates to
transfer documents relating to Indore property which
was in favour of defendant Nos.9 and 10. The transfer
documents dated 21.10.1986, 21.11.1988 and 20.08.1993
are relating to Indore property. The plaint
encompasses different causes of action with different
set of defendants. The cause of action relating to
Indore property and Bombay property were entirely
different with different set of defendants. The suit
filed by the plaintiff for Indore property as well as
Bombay property was based on different causes of
action and could not have been clubbed together. The
suit as framed with regard to Bombay property was
clearly not maintainable in the Indore Courts. The
trial court did not commit any error in striking out
the pleadings and relief pertaining to Bombay
property by its order dated 17.08.2011.
30. Learned counsel for the appellant has also
referred to and relied on order II Rule 2 and Order
II Rule 3 C.P.C. Learned counsel submits that order
II Rule 2 sub-clause (1) provides that every suit
shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause
of action. The cause of action according to Order II
Rule 2 sub-clause (1) is one cause of action. What is
required by Order II Rule 2 sub-clause (1) is that
every suit shall include the whole of the claim on
the basis of a cause of action. Order II Rule 2
cannot be read in a manner as to permit clubbing of
different causes of action in a suit. Relying on
Order II Rule 3 learned counsel for the appellant
submits that joinder of causes of action is
permissible. A perusal of sub-clause (1) of Order II
Rule 3 provides that plaintiff may unite in the same
suit several causes of action against the same
defendant, or the same defendants jointly. What is
permissible is to unite in the same suit several
causes of action against the same defendant, or the
same defendants jointly. In the present case suit is
not against the same defendant or the same defendants
jointly. As noticed above there are different set of
defendants who have different causes of actions.
31. Learned counsel has lastly submitted that
defendant Nos. 7 and 8 in their application having
not questioned the cause of action for which suit was
filed, the submission raised on behalf of the counsel
for the respondent that suit was bad for misjoinder
of the causes of action cannot be allowed to be
raised.
32. It is relevant to notice in the application filed
by defendant Nos. 7 and 8, the heading of the
application itself referred to “mis-joinder of
parties and causes of action”. In Para (1) of the
application, it was categorically mentioned that
there was mis-joinder of parties and causes of
action. The trial court in its order dated 17.08.2011
has also clearly held that plaintiff has clubbed
different causes of action which is to be deleted
from the present suit. The trial court further held
that the plaintiff is not justified in including
different properties and separate cause of actions
combining in single suit.
33. We, thus, are of the view that the trial court
has rightly allowed the application filed by the
defendant Nos.7 and 8. The High court did not commit
any error in dismissing the writ petition filed by
the appellant challenging the order of the trial
court.
34. We do not find any merit in this appeal, the
appeal is dismissed accordingly.
......................J.
(ASHOK BHUSHAN )
......................J.
New Delhi, (K.M. JOSEPH )
February 06, 2019.
Print Page
one statutory scheme. Section 16 contains general
principle that suits are to be instituted where
subject-matter is situate whereas Section 17 engrafts
an exception to the general rule as occurring in
Section 16. From the foregoing discussions, we arrive
at following conclusions with regard to ambit and
scope of Section 17 of C.P.C.
(i) The word ‘property’ occurring in Section 17
although has been used in ‘singular’ but by
virtue of Section 13 of the General Clauses Act
it may also be read as ‘plural’, i.e.,
”properties”.
(ii) The expression any portion of the property can
be read as portion of one or more properties
situated in jurisdiction of different courts
and can be also read as portion of several
properties situated in jurisdiction of
different courts.
(iii) A suit in respect to immovable property or
properties situate in jurisdiction of different
courts may be instituted in any court within
whose local limits of jurisdiction, any portion
of the property or one or more properties may
be situated.
(iv) A suit in respect to more than one property
situated in jurisdiction of different courts
can be instituted in a court within local
limits of jurisdiction where one or more
properties are situated provided suit is based
on same cause of action with respect to the
properties situated in jurisdiction of
different courts.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1052 OF 2019
SHIVNARAYAN Vs MANIKLAL
ASHOK BHUSHAN,J.
Dated:February 06, 2019.
This appeal has been filed by the appellant
against the judgment of High Court of Madhya Pradesh
dated 13.11.2013 by which judgment writ petition
filed by the appellant challenging the order dated
17.08.2011 of the III Additional District Judge,
Indore in Civil Suit No.60-A of 2010 has been upheld
dismissing the writ petition.
2. Brief facts of the case necessary to be noticed
for deciding this appeal are:-
2.1 The appellant filed Civil Suit No.60-A of
2010 before the District Judge praying for
declaring various transfer documents as null
and void with regard to suit property
mentioned in Para No. 1A and Para No.1B of
the plaint. Plaintiff also prayed for
declaration that suit properties mentioned
in Para Nos.1A and 1B are Joint Family
Property of plaintiff and defendant Nos. 1
to 3 and plaintiff is entitled to receive
1/3rd part of the suit property. A Will
executed by one Lt. Smt. Vimal Vaidya was
also sought to be declared to be null and
void. Certain other reliefs were claimed in
the suit. The parties shall be referred to
as described in the suit. The plaintiff in
Para No.2 of the plaint has set the
following genealogy of the parties:-
“Kaluram Bairulal Vaidya
(Since Deceased dt. 15/08/1969)
Shankarlal Maniklal Babulal Shivnarayan
(20/04/98) (Dft. No.1) (4/11/75)
(Plaintiff)
(Deceased) (Deceased)
Vimal
Leelbai Sushilaben (25.11.2007)
Def. No.2 Def. No.3 (Wife of Deceased)”
2
2.2 In Para No.1 of the plaint, description of
the property was mentioned to the following
effect:-
1.A) Plot No. SP 79, Sudama
Nagar Indore (M.P.) size 30
ft. X 50 ft. area 1500 Sq. Ft.
through membership no. 2905 of
Shikshak Kalyar Samiti, Sudama
Nagar, Indore.
B) Bombay Suburban District S.
No. 341, Pt. of Bandra Grant
Flat No.C/1/3, Sahitya Sahavas
Co-op. Housing Society, Second
Floor, building known as
“Abhang” Bandra (E), Mumbai-
400 051 situated on the plot
bearing no. C.T.S. No. 629,
(S. No. 341-A.B.S.D.)
Madhusudan Kalekar Marg,
Gandhinagar, Bandra (East)
Mumbai – 51.
2.3 The plaintiff sought relief with regard to
two properties (hereinafter referred to as
Indore property, situate at Indore, State of
Madhya Pradesh and Mumbai property situate at
Mumbai, State of Maharashtra). Plaintiff’s
case in the plaint was that Indore Property
was purchased by plaintiff’s father in the
year 1968-1969. Plaintiff’s father died on
15.08.1969. Thereafter, Indore property was
joint family property of the plaintiff and
defendant Nos. 1 to 3. Plaintiff’s brother
Babulal shifted to Pune. Babulal was
allotted Mumbai property under a Government
Scheme for extraordinary persons like writers
and educationist. Babulal died in the year
1975. Thereafter, the Mumbai property, on
the basis of succession certificate issued by
Court of Civil Judge (Senior Division), Pune
came in the name of widow of Babulal, Smt.
Vimal Vaidya. Smt. Vimal Vaidya transferred
the Mumbai flat by sale deed dated 15.10.2007
in favour of defendant Nos. 7 and 8. It was
further pleaded in the plaint that Smt. Vimal
Vaidya also dealt with Indore Property. The
name of Smt. Vimal Vaidya was mutated in the
year 1986 in the Indore property and
thereafter she transferred the Indore
property in favour of defendant Nos. 9 and
10. One set of pleadings was with regard to
a Will executed in the year 2000 by Smt.
Vimal Vaidya in favour of defendant Nos. 4 to
6. On aforesaid pleadings, following reliefs
were prayed in Para No. 25 of the plaint:-
“A) The property mentioned in Para
No.1 of the Plaint and its deed
of transfer documents be declared
null and void which is not
binding on the part of the
plaintiff.
B) The property mentioned in Para
No.1B of Plaint and document
related to its registered deed to
transfer be declared null and
void and which is not binding on
the part of Plaintiff.
C) The property mentioned in Para
No. 1A and 1B of the Plaint is
joint family property of the
Plaintiff and defendant No. 1 to
3 be declared joint family
property and Plaintiffs right to
receive 1/3 part of the suit
property.
D) Court Commissioner be appointed to
make division of suit property
and 1/3 part possession be given
to the Plaintiff.
E) During the hearing of the suit
injunction order be passed in
respect of the property not to
create third party interest by
the Defendants.
F) Plaintiff's suit be declared
decreed with the expenses.
G) To grant any other relief which
this Hon'ble Court may be fit in
the interest of justice.
H) The forged will executed by Late
Vimal Vaidya under influence of
defendant No. 4 and his
associates relatives Defendant
No. 5 and 6 and other relatives
of Kher family. Because, Late
Babulal Vaidya was a member of
5
undivided Hindu family.
Therefore, Late. Vimal Vaidya was
not authorized to execute that
alleged will as per the Law.
Therefore, the registered alleged
will be declared null and void
and be declared that it is not
binding on the part of the
Plaintiff.”
2.4 The defendant Nos. 7 and 8 appeared in suit
and filed an application with the heading
“application for striking out pleadings and
dismissing suit against defendants No.7 and 8
for want of it territorial jurisdiction and
mis-joinder of parties and causes of action.”
The defendant Nos. 7 and 8 pleaded that for
property being situated at Bandra East,
Mumbai, the Court at Indore has no
territorial jurisdiction. It was further
pleaded by the defendant that suit suffers
fatally from mis-joinder of parties as well
as causes of action. The defendant Nos. 7
and 8 pleaded that there is no nexus at all
between the two properties – one situate at
Indore and other at Mumbai. Details of
different causes of action and nature of the
properties, details of purchasers for both
different sale transactions have been
explained in detail in Para No. 6 of the
application. It was further pleaded that
Mumbai property does not form asset of any
Hindu Undivided Family. Mumbai property was
acquired by Babulal in his own name and after
his death on the basis of succession, it has
come to his sole heir Smt. Vimal Vaidya in
the year 1975. It was pleaded that no part
of the cause of action for the Mumbai
property took place in Indore. In the
application, following reliefs has been
prayed for by the defendant Nos. 7 and 8:-
“(a) All the pleadings and the relief
clauses relating to the property
situate at Mumbai may kindly be
ordered to be struck off from
the plaint, in exercise of
powers conferred on this Hon’ble
Court under Order 6 Rule 16 of
the Civil Procedure Code, and as
a consequence the suit against
the defendants No.7 and 8 may
kindly be dismissed with costs
for the answering defendants;
while the Suit relating to the
Indore property may be continued
if otherwise round maintainable
under the law;
OR in the alternative,
An order may kindly be passed
declining to entertain the part
of the suit relating to the
property in Mumbai with costs
for the answering defendants;
and
(b) Such other order may kindly be
passed as may be deemed
appropriate in the circumstances
of the case.”
2.5 The trial court after hearing the parties on
the application dated 19.03.2011 filed by the
defendant Nos. 7 and 8 passed an order dated
17.08.2011 allowed the application. An order
was passed deleting the property mentioned In
Para No. 1B of the plaint and the relief
sought with regard to the said property. The
trial court held that separate cause of
actions cannot be combined in a single suit.
2.6 Aggrieved by the order of the trial court, a
writ petition was filed in the High Court,
which too has been dismissed by the High
Court vide its order dated 13.11.2013
affirming the order of the trial court. High
Court referring to Section 17 of the Civil
Procedure Code, 1908 held that for property
situated at Mumbai, the trial court committed
no error in allowing the application filed by
defendant Nos. 7 and 8. The plaintiffappellant
aggrieved by the order of the High
court has come up in this appeal.
3. We have heard Shri Vinay Navare for the
appellant. Shri Chinmoy Khaladkar has appeared for
respondent Nos. 7 and 8.
4. Learned counsel for the appellant submits that
High Court did not correctly interpret Section 17 of
the Code of Civil Procedure. The partition suit
filed by the appellant with regard to Mumbai and
Indore properties was fully maintainable. He submits
that Order II Rule 2 of CPC mandates that the
plaintiff must include the whole claim in respect of
a cause of action in the suit. The cause of action
claimed by the plaintiff was denial of the
plaintiff’s right to share in the Joint Family
Property. Restrictive interpretation of Section 17
will do violence to the mandate of Order II Rule 2.
Section 39(1)(c) of the CPC itself contemplate that
there can be a decree of an immovable property, which
is situated outside the local limits of the
jurisdiction. The words “immovable property”’ used in
Section 17 is to be interpreted by applying Section
13 of the General Clauses Act. It provides that in
all Central Acts and Regulations, unless the context
and subject otherwise requires, “any singular term
shall include plural”. In event, it is accepted that
with regard to separate properties situated in
different jurisdictions, separate suits have to be
filed that shall result in conflicting findings of
different Courts and shall involve the principles of
res judicata.
5. Learned counsel appearing for defendant Nos. 7
and 8 refuting the submissions of learned counsel for
the appellant contends that no error has been
committed by trial court in deleting the property at
Para No.1B in the plaint as well as pleadings and
reliefs with regard to said property. It is
submitted that Section 17 of the CPC contemplate
filing of a suit with respect to immovable property
situated in jurisdiction of different courts only
when any portion of the property is situated in the
jurisdiction of a Court, where suit has to be filed.
The word “any portion of the property” indicate that
property has to be one whose different portions may
be situated in jurisdiction of two or more Courts.
He further submits that there is no common cause of
action with regard to property situate at Indore and
property situate at Mumbai. Transfer deed with
regard to Indore Property as well as transfer deeds
of Mumbai property are different. The purchasers of
both the properties, i.e. Indore property and Mumbai
property are also different. According to pleadings
in the plaint itself, the Mumbai property was
purchased by Babulal, the husband of Smt. Vimla
Vaidya in his own name, which after death of Babulal
in the year 1975 was mutated in the name of Smt.
Vimla Vaidya. The plaintiff has sought to club
different cause of actions in one suit. There is
mis-joinder of the parties also in the suit since the
defendants pertaining to different transactions have
been impleaded in one suit whereas there is no nexus
with the properties, transactions and persons.
Learned counsel for the defendant Nos. 7 and 8
submits that by order of Court of Civil Judge (Senior
Division), Pune, the property is already mutated in
the year 1975 in the name of Smt. Vimla Vaidya after
death of her husband, which was rightfully
transferred by her to defendant Nos. 7 and 8 on
15.10.2007. It is submitted that the Court at Indore
might proceed with the property at Indore with the
defendants, who are related to Indore property but
suit pertaining to Mumbai property, transactions
relating thereto and defendants relating to Mumbai
property have rightly been struck off from the case.
6. Before we consider the submissions of the learned
counsel for the parties, relevant provisions
pertaining to place of suing as contained in Code of
Civil Procedure needs to be noted. Section 15 to
Section 20 contains a heading “place of suing”.
Section 16 provides that Suits to be instituted where
subject-matter situate. Section 16 is as follows:-
16. Suits to be instituted where subjectmatter
situate.--Subject to the pecuniary
or other limitations prescribed by any law,
suits-
(a) for the recovery of immovable
property with or without rent or
profits,
(b) for the partition of immovable
property,
(c) for foreclosure, sale or
redemption in the case of a
mortgage of or charge upon
immovable property,
(d) for the determination of any
other right to or interest in
immovable property,
(e) for compensation for wrong to
immovable property,
(f) for the recovery of movable
property actually under
distraint or attachment,
shall be instituted in the Court
within the local limits of whose
jurisdiction the property is
situate:
Provided that a suit to obtain relief
respecting, or compensation for wrong to,
immovable property held by or on behalf of
the defendant, may where the relief sought
can be entirely obtained through his
personal obedience, be instituted either in
the Court within the local limits of whose
jurisdiction the property is situate, or in
the Court within the local limits of whose
jurisdiction the defendant actually and
voluntarily resides, or carries on
business, or personally works for gain.
Explanation.– In this section “property”
means property situate in India.
7. Section 17, which falls for consideration in the
present case, deals with suits for immovable property
situate within jurisdiction of different courts is as
follows:-
17. Suits for immovable property situate
within jurisdiction of different Courts.--
Where a suit is to obtain relief
respecting, or compensation for wrong to,
immovable property situate within the
jurisdiction of different Court, the suit
may be instituted in any Court within the
local limits of whose jurisdiction any
portion of the property is situate :
Provided that, in respect of the value
of the subject matter of the suit, the
entire claim is cognizable by such Court.
8. We need to notice the Scheme under Code of Civil
Procedure as delineated by Sections 16 and 17.
Section 16 provides that suit shall be instituted in
the Court within the local limits of whose
jurisdiction the property is situated. Section 16(b)
mentions “for the partition of immovable property”.
9. Now, we look into Section 17, which deals with
suits for immovable property situated within
jurisdiction of different Courts. As per Section 17,
the suit may be instituted in any Court within the
local limits of whose jurisdiction any portion of the
property is situated. What is the meaning of the
word “any portion of the property”? There may be a
fact situation where immovable property is a big
chunk of land, which falls into territorial
jurisdiction of two courts in which fact situation in
Court in whose jurisdiction any portion of property
is situated can entertain the suit. Whether Section
17 applies only when a composite property spread in
jurisdiction of two Courts or Section 17 contemplate
any wider situation. One of the submissions of the
learned counsel for the appellant is that the word
“property” as occurring in Section 17 shall also
include the plural as per Section 13 of General
Clauses Act, 1897. Section 13 of the General Clauses
Act provides:-
13. Gender and number.-In all Central Acts
and Regulations, unless there is anything
repugnant in the subject or context.-
(1) Words importing the masculine gender
shall be taken to include females; and
(2) words in the singular shall include
the plural, and vice versa.
10. Applying Section 13 of General Clauses Act, the
Bombay High Court explaining the word “property” used
in Section 17 held that it includes properties. We
are also of the same view that the word “property”
used in Section 17 can be more than one property or
properties.
11. The word “property” under Section 17 of the Civil
Procedure code may also be properties, hence, in a
schedule of plaint, more than one property can be
included. Section 17 can be applied in event there
are several properties, one or more of which may be
located in different jurisdiction of courts. The
word “portion of the property” occurring in Section
17 has to be understood in context of more than one
property also, meaning thereby one property out of a
lot of several properties can be treated as portion
of the property as occurring in Section 17. Thus,
interpretation of word “portion of the property”
cannot only be understood in a limited and
restrictive sense of being portion of one property
situated in jurisdiction of two courts.
12. We now look into the decisions of various Courts
in reference to Section 17 of Civil Procedure Code.
How the word “property” and “portion of the property”
occurring in Section 17 has been understood by
different High Courts. There are few decisions of
the Privy Council also where Section 17 of the Civil
Procedure Code came for consideration. In Nilkanth
Balwant Natu and Others Vs. Vidya Narasinh Bharathi
Swami and Others, AIR 1930 PC 188, Privy Council had
occasion to consider Section 17 of Civil Procedure
Code. The properties in respect of which relief was
sought by the plaintiff were situated in Satara,
Belgaum and Kolhapur. Although Satara and Belgaum
were situated in British India but Kolhapur was not.
The Privy Council after noticing the provision of
Sections 17 and 16(c) laid down following:-
“The learned Judge had jurisdiction to
try the suit so far as it related to the
mortgaged properties situate in Satara;
and, inasmuch as the mortgaged properties
in Belgaum are within the jurisdiction of a
different Court in British India, he had
jurisdiction to deal with those properties
also.”
13. The Privy Council, thus, held that Satara Court
had jurisdiction to entertain suit with regard to
property situated at Satara and Belgaum whereas it
has no jurisdiction to entertain suit pertaining to
Kolhapur, which was not in the British India. In
another case of Privy Council, Nrisingha Charan Nandy
Choudhry Vs. Rajniti Prasad Singh and Others, AIR
1936 PC 189, mortgage lands were in the Sonthal
Parganas, State of Bihar and also in the Gaya
district of State of Bihar. In Paragraph 9,
following was laid down:-
“9. Now, the mortgage deeds include, as
already stated, lands situated, not only in
the Sonthal Parganas, but also in the Gaya
District. What is the ordinary rule for
determining the court which can take
cognizance of a suit for immovable property
situated within the local limits of two or
more tribunals? The answer is furnished by
Section 17 of the Code of Civil Procedure
(Act V. of 1908), which provides that where
a suit is to obtain relief respecting
immovable property situate within the
jurisdiction of different courts, the suit
may be instituted in any court within the
local limits of whose jurisdiction any
portion of the property is situate.”
14. Different High Courts have also while
interpreting Section 17 of Civil Procedure Code laid
down that Section 17 is applicable in case where
properties are situated in the jurisdiction of more
than one court. In Rajendra Kumar Bose Vs. Brojendra
Kumar Bose, AIR 1923 Calcutta 501, the Division Bench
of the Calcutta High Court noticed following:-
“Exceptions to the rule that a suit cannot
lie for partition of a portion of the
family property have been recognised when
different portions of the family property
are situated in different jurisdictions,
aid separate suits for separate portions
have sometimes been allowed, where
different rules of substantive or adjective
law prevail in the differed Courts; Hari v.
Ganpat Rao, (1883) 7 Bom. 272; Ramacharia
v. Anantacharia, (1894) 18 Bom. 389; Moti
Ram v. Kanhaya Lal, AIR 1920 Lah. 474;
Panchanon v. Sib Chandra, (1887) 14 Cal.
835; Balaram v. Ram Chandra, (1898) 22 Bom.
922; Abdul v. Badruddin, (1905) 28 Mad.
216; Padmani v. Jagadamba, (1871) 6 B.L.R.
18
134; Rammohan v. Mulchand, (1906)28 All.
39; Lachmana v. Terimul, 4 Mad. Jur. 241;
Subba v. Rama, (1866-67) 3 Mad. H.C.R. 376;
Jayaram v. Atmaram, (1879) 4 Bom. 482;”
15. A Full Bench of Allahabad High Court in Kubra Jan
Vs. Ram Bali and Others, (1908) ILR 30 All. 560 had
occasion to consider suit, which was filed at
Bareilly with regard to Bareilly property as well as
Bara Banki property situated in two different
districts. The jurisdiction at Bareilly Court was
upheld in Paragraph Nos. 1 and 8, in which it was
laid down as follows:-
“1. This appeal has been laid before a Full
Bench by reason of a conflict in the
authorities upon a question raised in the
appeal. The suit is one by the daughter of
one Bande Ali to recover from her brother
Akbar Husain and a number of other
defendants, transferees from him, her share
in the property of her deceased father. This
property is situate in the district of
Bareilly and also in the district of Bara
Banki in Oudh. It appears that Akbar Husain
transferred the Bareilly property to the
defendants Nos. 2 to 8 and the Bara Banki
property to persons from whom the defendant
respondent Ram Bali acquired it by virtue of
a decree for pre-emption. The suit in regard
to the Bareilly property was compromised,
with the result that the claim in respect of
that property was abandoned, and the suit
proceeded as regards the Bara Banki property
only.
8. Again, it is said that after the
compromise in respect of the Bareilly
property the Court ceased to have any
jurisdiction to deal with the plaintiff's
claim, that is, that though the Bareilly
Court bad jurisdiction, when the plaint was
filed, to deal with the suit, it ceased to
have jurisdiction when portion of the
property claimed was withdrawn from the
litigation. 'It seems to me that once
jurisdiction is vested in a Court, in the
absence of a provision of law to the
contrary, that jurisdiction will not be
taken away by any act of the parties. There
is no allegation here that the plaint was
filed in the Bareilly Court with any
intention to defeat the provisions of the
Code of Civil Procedure as regards the venue
of suits for recovery of immovable property.
If any fraud of that kind had been alleged
and proved, other considerations would
arise. But in this case, as I have said, no
such suggestion has been made.”
16. Similar view was taken in Ramdhin and Others Vs.
Thakuran Dulaiya and Others, AIR 1952 Nag. 303 (Full
Bench); Basanta Priya Dei and Another Vs. Ramkrishna
Das and Others, AIR 1960 Ori. 159; Laxmibai Vs.
Madhankar Vinayak Kulkarni and Others, AIR 1968 Kant.
82; Prem Kumar and Others Vs. Dharam Pal Sehgal and
Others, AIR 1972 Delhi 90 and Janki Devi Vs. Mannilal
and Others, AIR 1975 All. 91.
17. The views of the different High Courts as well as
of the Privy Council, as noticed above, clearly
indicate that Section 17 has been held to be
applicable when there are more than one property
situated in different districts.
18. The point to be noticed is that the
permissibility of instituting suit in one Court,
where properties, which are subject matter of the
suit are situated in jurisdiction of different courts
have been permitted with one rider, i.e., cause of
action for filing the suit regarding property
situated in different jurisdiction is one and the
same. In a suit when the cause of action for filing
the suit is different, the Courts have not upheld the
jurisdiction of one Court to entertain suits
pertaining to property situated in different courts.
In this context, we need to refer to some judgments
of High Courts as well as of the Privy Council, which
has considered the issue. In Sardar Nisar Ali Khan
Vs. Mohammad Ali Khan, AIR 1932 PC 172, Privy Council
had occasion to consider the case where subject
matter of the suit were several properties situated
in jurisdiction of different courts. Suit was
instituted in Oudh (which later became part of Uttar
Pradesh). The Privy Council held that since there
was different cause of actions, the same cannot be
clubbed together. One of the properties, which was
situated in Punjab was referred to in the suit as
Khalikabad property. Although, suit with regard to
the other three properties had similar cause of
action but cause of action with regard to Khalikabad
property being found to be different, the Court held
that Section 17 Civil Procedure Code was not
applicable. Following was laid down in the case by
the Privy Council:-
“There remains the question of the
Khalikabad estate. Here the respondent
cannot succeed unless he shows that under
the terms of the deed creating the wakf he
is the trustee. That question depends upon
the construction of the deed. It is a
separate and different cause of action from
these which found the proceedings in
respect of the other three properties.
Their Lordships are unable to find any
jurisdiction for bringing the suit in
respect of this property elsewhere than in
the Court of the district where the
property is situate. Such justification
cannot in their Lordships' judgment be
found in Section 17, Civil P.C. upon which
the respondent relied.”
19. A Two-Judge Bench judgment of Allahabad High
Court has been heavily relied upon by the learned
counsel for the respondent reported in AIR 1942 All.
387, Karan Singh and Others Vs. Kunwar Sen and
Others. In the above case, suit properties were
situated in Haridwar and Amritsar. Suit was filed
in the Court of Civil Judge, Saharanpur. An
application under Section 22, Civil P.C. was filed to
determine as to whether a suit which is pending in
the Court of the Civil Judge of Saharanpur should
proceed in the corresponding Court having
jurisdiction at Amritsar in the Punjab. The Court
after noticing Section 17 held that plaintiffs were
claiming two properties against two set of
defendants, whom they alleged to be trespassers. The
Court held that unless suit is filed on one cause of
action, two properties situate in different
jurisdiction cannot be clubbed. Following was laid
down:-
“Having made these observations I must now
return to the question whether in the suit
with which we are dealing it can be said
that the relief claimed against the
Defendants in possession of the property at
Hardwar and the Defendants in possession of
the property at Amritsar arises out of the
same series of acts or transactions and
whether the two properties claimed can, for
the purposes of Section 17, be described as
a single entity. It must be admitted that
there is no apparent connection between the
transfer of the Amritsar property to Amar
Nath under the will executed by Jwala Devi
and the subsequent transfers made by him
and his successors-in-interest on the one
hand and the transfer made by Prem Devi of
the Hardwar property on the other hand. It
must be admitted also that the Plaintiffs
are not claiming the estates of Badri Das
as a whole against any rival claimant to
the estate. They are claiming two
properties against two sets of Defendants
whom they allege to be trespassers and who,
if they are trespassers, have absolutely no
connection with each other. The only
connecting link is that the Plaintiff's
claim in both the properties arose at the
time of the death of Prem Devi and that the
claim is based on the assumption that the
Defendants are in possession as the results
of transfers made by limited owners who
were entitled, during their lives, to the
enjoyment of the whole estate and the
properties comprised within it. It was held
many years ago in the case of Mst. Jehan
Bebee v. Saivuk Ram (1867) H.C.R. 1. 109,
that unconnected transfers by a Hindu widow
of properties comprised within the
husband's estate did not give rise to one
cause of action against the various
transferees. The same rule was laid down in
the case of Bindo Bibi v. Ram Chandra
(1919) 17 A.L.J. 658. In that case a
reference was made to the decision in Murti
v. Bhola Ram (1893) 16 All 165 and it was
pointed out that that was a case where a
claim was made against one Defendant who
had taken possession of different
properties in execution of one decree.
There is no doubt that that case is clearly
distinguishable from the case with which we
are dealing……………………”
20. The above judgment was subsequently relied and
explained by Allahabad High Court in Smt. Janki Devi
Vs. Manni Lal and Others, AIR 1975 All. 91. In
Paragraph No.11, following was laid down:-
24
“11. Similar view was expressed in Smt.
Kubra Jan v. Ram Bali, (1908)ILR 30 All 560
. This Full Bench decision does not appear
to have been brought to the notice of the
Division Bench hearing the case of Karam
Singh v. Kunwar Sen AIR 1942 All 387.
However, many observations made therein are
not contrary to the law laid down in the
above mentioned Full Bench case. The sum
and substance of this Division Bench case
also is that where in the facts and
circumstances of the case all the
properties can be treated as one entity a
joint trial shall be permissible but not
where they are more or less different
properties with different causes of action.
The material observations are as below:--
"........ and this implies, in my
judgment, that the acts or
transactions, where, they are
different, should be so connected as
to constitute a single series which
could fairly be described as one
entity or fact which would constitute
a cause of action against all the
defendants jointly. Whether this
necessary condition exists in any
particular case would, of course,
depend upon the nature of the case
but I am satisfied that this at least
is necessary that the case should be
such that it could be said that the
Court in which the suit was
instituted had local jurisdiction in
the first instance to deal with the
controversies arising between the
plaintiffs and each of the
defendants………………
The property must, in the particular
circumstances of the suit, be capable of
being described as a single entity. Whether
it can or cannot be so described will
depend again upon the nature of the dispute
between the parties. If there is a dispute,
for instance about a single estate which
both parties are claiming as a whole that
estate is obviously for the purposes of
that particular suit a single entity. If,
on the other hand, the owner of an estate
has a claim against unconnected trespassers
who have trespassed upon different parts of
the estate or different properties situated
within it, those parts or those properties
would not for the purposes of the dispute
between him and the trespassers be one
entity but several entities and the
provisions of Section 17, would not
apply".”
21. Thus, for a suit filed in a Court pertaining to
properties situated in jurisdiction of more than two
courts, the suit is maintainable only when suit is
filed on one cause of action.
22. Justice Verma of Allahabad High Court in his
concurring opinion in Karan Singh v. Kunwar Sen
(supra) while considering Section 17 of C.P.C. has
explained his views by giving illustration. Following
was observed by Justice Verma:
“I agree, Suppose a scattered Hindu dies
possessed of immovable property scattered
all over India at Karachi, Peshwar, Lahore,
Allahabad, Patna, Dacca, Shillong,
Calcutta, Madras and Bombay and is
succeeded by his widow who, in the course
of 40 or 50 years, transfers on different
dates portions of the property situated at
each of the places mentioned above, to
different persons each of whom resides at
the place where the property transferred to
him is situated, and the transfers are
wholly unconnected with, and independent of
one another. Upon the widow’s death the
reversioner wants to challenge these
various transfers. Learned counsel for the
plaintiffs has argued that in such a case
the reversioner is entitled to bring one
suit challenging all the transfers at any
one of the places mentioned above,
impleading all the transferees, I find it
very difficult to hold that such a result
is contemplated by the provisions of the
Code of Civil Procedure upon which reliance
has been placed and which are mentioned in
the judgment of my learned brother. I do
not consider it necessary to pursue the
matter any further. It is clear to my mind
that, if the plaintiffs; argument mentioned
above is accepted, startling results will
follow.”
23. Now, we come to submission of learned counsel for
the appellant based on Section 39 sub-section (1)
(c)of C.P.C. It is submitted that Section 39(1)(c) of
C.P.C. is also a pointer to what is intended in
Section 17. The scheme as delineated by Section 39
indicates that when a decree is passed by a Court
with regard to sale or delivery of immovable property
situated outside the local limits of the jurisdiction
of that Court it may transfer the decree for
execution to another Court. The provision clearly
indicates that a decree of Court may include
immovable property situate in local limits of that
Court as well as property situated outside the local
limits of the jurisdiction of the Court passing the
decree. Section 39(1)(C) re-enforces our conclusion
that as per Section 17 suit may be filed with regard
to immovable property situated outside the local
limit of the jurisdiction of the Court. We may,
however, add that passing a decree by a Court with
regard to immovable property situate outside the
local jurisdiction of the Court may not only confine
to Section 17 but there may be other circumstances
where such decree is passed. Section 20 of C.P.C. may
be one of the circumstances where decree can be
passed against the defendant whose property may
situate in local jurisdiction of local limits of more
than one Court.
24. We may further notice that Section 17 uses the
words ‘the suit may be instituted in any Court’. The
use of word in Section 17 makes it permissive leaving
discretion in some cases not to file one suit with
regard to immovable property situated in local
jurisdiction of more than one court. One of the
exceptions to the rule is cases of partial partition
where parties agree to keep some property joint and
get partition of some of the properties.
25. The partial partition of property is well
accepted principle with regard to a joint family. In
Mayne’s Hindu Law & Usage, 16th Edition in paragraph
485 following has been stated:
“485. Partition partial or total.-
Partition may be either total or partial. A
partition may be partial either as regards
the persons making it or the property
divided.
Partial as to properties.- It is open to
the members of a joint family to severe in
interest in respect to a part of the joint
estate while retaining their status of a
joint family and holding the rest as the
properties of an undivided family. Until
some positive action is taken to have
partition of joint family property, it
would remain joint family property.”
26. Mulla on Hindu Law, 22nd Edition also refers to
partial partition both in respect of the property and
or in respect of the persons making it. In paragraph
327 following has been stated:
“”327. Partial partition.-(1) A partition
between coparceners may be partial either
in respect of the property or in respect of
the persons making it.
After a partition is affected, if some
of the properties are treated as common
properties, it cannot be held that such
properties continued to be joint
properties, since there was a division of
title, but such properties were not
actually divided.
(2) Partial as to property.- It is open
to the members of a joint family to make a
division and severance of interest in
respect of a part of the joint estate,
while retaining their status as a joint
family and holding the rest as the
properties of a joint and undivided
family.”
The issues arising in the present case being not
related to subject of partial partition the issue
need not to be dealt with any further.
27. Learned counsel for the appellant has also
submitted that permitting filing of a separate suit
with regard to property situate in different
jurisdiction shall give rise to conflicting decision
and decision in one suit may also be res judicata in
another suit. We in the present case being not
directly concerned with a situation where there are
more than one suit or a case having conflicting
opinion we need not dwell the issue any further.
28. Sections 16 and 17 of the C.P.C. are part of the
one statutory scheme. Section 16 contains general
principle that suits are to be instituted where
subject-matter is situate whereas Section 17 engrafts
an exception to the general rule as occurring in
Section 16. From the foregoing discussions, we arrive
at following conclusions with regard to ambit and
scope of Section 17 of C.P.C.
(i) The word ‘property’ occurring in Section 17
although has been used in ‘singular’ but by
virtue of Section 13 of the General Clauses Act
it may also be read as ‘plural’, i.e.,
”properties”.
(ii) The expression any portion of the property can
be read as portion of one or more properties
situated in jurisdiction of different courts
and can be also read as portion of several
properties situated in jurisdiction of
different courts.
(iii) A suit in respect to immovable property or
properties situate in jurisdiction of different
courts may be instituted in any court within
whose local limits of jurisdiction, any portion
of the property or one or more properties may
be situated.
(iv) A suit in respect to more than one property
situated in jurisdiction of different courts
can be instituted in a court within local
limits of jurisdiction where one or more
properties are situated provided suit is based
on same cause of action with respect to the
properties situated in jurisdiction of
different courts.
29. Now, we revert to the facts of the present case
and pleadings on record. The suit filed by the
appellant contained three different sets of
defendants with different causes of action for each
set of defendants. Defendant Nos. four to six are
defendants in whose favour Will dated 15.02.2000 was
executed by late Smt. Vimal Vaidya. In the plaint,
relief as claimed in paragraph 25(H)is the will
executed by late Smt. Vimal Vaidya was sought to be
declared as null and void. The second cause of action
in the suit pertains to sale deed executed by late
Smt. Vimal Vaidya dated 15.10.2007 executed in favour
of defendant Nos.7 and 8 with regard to Bombay
property. The third set of cause of action relates to
transfer documents relating to Indore property which
was in favour of defendant Nos.9 and 10. The transfer
documents dated 21.10.1986, 21.11.1988 and 20.08.1993
are relating to Indore property. The plaint
encompasses different causes of action with different
set of defendants. The cause of action relating to
Indore property and Bombay property were entirely
different with different set of defendants. The suit
filed by the plaintiff for Indore property as well as
Bombay property was based on different causes of
action and could not have been clubbed together. The
suit as framed with regard to Bombay property was
clearly not maintainable in the Indore Courts. The
trial court did not commit any error in striking out
the pleadings and relief pertaining to Bombay
property by its order dated 17.08.2011.
30. Learned counsel for the appellant has also
referred to and relied on order II Rule 2 and Order
II Rule 3 C.P.C. Learned counsel submits that order
II Rule 2 sub-clause (1) provides that every suit
shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause
of action. The cause of action according to Order II
Rule 2 sub-clause (1) is one cause of action. What is
required by Order II Rule 2 sub-clause (1) is that
every suit shall include the whole of the claim on
the basis of a cause of action. Order II Rule 2
cannot be read in a manner as to permit clubbing of
different causes of action in a suit. Relying on
Order II Rule 3 learned counsel for the appellant
submits that joinder of causes of action is
permissible. A perusal of sub-clause (1) of Order II
Rule 3 provides that plaintiff may unite in the same
suit several causes of action against the same
defendant, or the same defendants jointly. What is
permissible is to unite in the same suit several
causes of action against the same defendant, or the
same defendants jointly. In the present case suit is
not against the same defendant or the same defendants
jointly. As noticed above there are different set of
defendants who have different causes of actions.
31. Learned counsel has lastly submitted that
defendant Nos. 7 and 8 in their application having
not questioned the cause of action for which suit was
filed, the submission raised on behalf of the counsel
for the respondent that suit was bad for misjoinder
of the causes of action cannot be allowed to be
raised.
32. It is relevant to notice in the application filed
by defendant Nos. 7 and 8, the heading of the
application itself referred to “mis-joinder of
parties and causes of action”. In Para (1) of the
application, it was categorically mentioned that
there was mis-joinder of parties and causes of
action. The trial court in its order dated 17.08.2011
has also clearly held that plaintiff has clubbed
different causes of action which is to be deleted
from the present suit. The trial court further held
that the plaintiff is not justified in including
different properties and separate cause of actions
combining in single suit.
33. We, thus, are of the view that the trial court
has rightly allowed the application filed by the
defendant Nos.7 and 8. The High court did not commit
any error in dismissing the writ petition filed by
the appellant challenging the order of the trial
court.
34. We do not find any merit in this appeal, the
appeal is dismissed accordingly.
......................J.
(ASHOK BHUSHAN )
......................J.
New Delhi, (K.M. JOSEPH )
February 06, 2019.
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