9911796707
TMI Blog2007 (4) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff in respect of her entitled share in view of the Islamic Personal Law i.e. of total properties/estates, out of 180 Kanals and 12 Morlas situated at Village Pataudi, Gurgaon left behind by above mentioned Her Highness Mehar Taj Sajida Sultan; (c) Pass a decree of rendition of account in respect of the earnings of the above mentioned properties w.e.f. June, 2000 uptill filing of the present suit; (d) Pass a decree of permanent injunction restraining the Defendants, their employees, servants whosoever acting on their behalf from using, alienating, parting with possession and/or dealing with in any manner whatsoever in respect of the respective shares of the plaintiff; (e) Pass an order for cost of the suit; and (f) Pass any other and further orders as this Hon'ble Court may deem fit, just and proper. 4. The immovable properties that were sought to be partitioned and alienation in respect of which was sought to be declared void, were admittedly situate in Village Pataudi, Gurgaon in the State of Haryana, outside the jurisdiction of the Court in which the suit was instituted. The suit was filed in the Court at Delhi on the basis of the following averments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three of the defendants were residing in Delhi, within the jurisdiction of the court at Delhi and, in any event, on that ground and on the ground that a part of the cause of action arose in Delhi, the suit could be entertained in the court at Delhi in terms of Section 20 of the Code. 7. The learned Single Judge, the trial Judge, on a reading of the plaint, came to the conclusion that the reliefs claimed in the plaint fell within the purview of Section 16(b) and (d) of the Code and that the proviso to Section 16 had no application. Section 20 could not be resorted to, since Section 16 had application and Section 20 applied only if Section 16 had no application. Overruling the contention that the first part of the declaratory relief was rightly claimed in the court at Delhi, he held that the said declaration was also related to the properties situated in village Pataudi, outside the jurisdiction of the court at Delhi and hence the court at Delhi had no jurisdiction to entertain the suit. The trial judge, therefore, directed the return of the plaint to the plaintiff for being presented to the court having jurisdiction. An offer made to the plaintiff to pass an order in terms of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g jurisdiction over the property in question and the High Court was right in holding that Section 16(b) and (d) of the Code squarely applied to the case on hand in the light of the releifs claimed. Counsel further submitted that the proviso to Section 16 of the Code had no application, since this was not a case where mere personal obedience to the decree would result in an effective decree. He further pointed out that Section 20 of the Code will have no application in a case where Section 16 squarely applies, since Section 20 was only a residuary provision. He ultimately submitted that the High Court has understood the plaint in a particular manner and since an effective decree for partition, which is the main relief claimed in the plaint, could more conveniently be passed by the court having jurisdiction over the properties in question, it was not a fit case where this Court ought to exercise its jurisdiction under Article 136 of the Constitution of India, since having the suit tried at Delhi would only create complications and prolong the proceedings, even assuming that this Court saw some merit in the contention that the first part of prayer (a) might come within the purview of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to the relief of partition and declaration in respect of the properties situate in Village Pataudi, Gurgaon, outside the jurisdiction of court at Delhi. It is no doubt true that there is an averment that an alleged oral will said to have been made at Delhi by the deceased mother and presumably relied on by defendants 1 and 2 was never made. But on our part, we fail to understand the need for claiming such a negative declaration. After all, the plaintiff can sue for partition, rendition of accounts and for setting aside the alienation effected by defendant No. 2 without the junction of the plaintiff on a claim that the plaintiff is also one of the heirs of the deceased mother. If in such a suit, the defendants propound any oral will as excluding the plaintiff from inheritance, the burden would be on them to establish the making of such an oral will and the validity thereof. The negative declaration sought for by the plaintiff appears to us to be totally superfluous and unnecessary in the circumstances of the case. It may be noted that it is not the case of the plaintiff that an oral will was made at Delhi. It is the case of the plaintiff that no oral will was made at Delhi. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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