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TMI Blog2001 (7) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... eed dated 14.1.1970 at a time when they were minors had not been accepted by them after they attained majority. It is also their further case that the Will of their father dated 18.2.1973 cannot be genuine, as according to them, their father was ill and would not have excluded the daughters from the disposition of the property. 2. All the defendants in the suit as also two of the three plaintiffs reside outside the jurisdiction of this Court. Leave was therefore sought to institute the suit in this Court against those defendants. 3. It was asserted at paragraph 14 of the plaint that the cause of action for the suit arose at Madras where three of the 185 properties listed in the plaint schedule are situated. It was also asserted that the cause of action arose when the plaintiffs demanded their share in the year 1993 and caused a notice to be issued in the year 1994. It was averred in the plaint that they have no knowledge of the exact extent of the properties possessed by late Ramasamy Naicker and that they are not in possession of any records from which they can ascertain the details of the assets. It was their case that immediately after their marriage they, went to their hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akrishnan, learned counsel for the appellant submitted that the learned single Judge was in error in looking to the convenience of the parties while deciding the question of leave. It was submitted that the plaintiffs have questioned the validity of the partition deed of 2.9.1958 as also the genuineness of the Will of the father dated 18.2.1973 and three of the items in the plaint schedule are in Madras. Counsel contended that these facts are sufficient to sustain the leave which had been granted ex parte. 8. The leave which can be sought from this Court and which the Court can grant is under Clause 12 of the tellers Patent which inter alia provides that the original jurisdiction of this Court extends to suiis of every description in the case of suits for lands or other immovable properties if such lands or properties are situated within the jurisdiction of this Court and in all other cases, the cause of action shall have arisen either wholly, or, in case the leave of the Court shall have been first obtained and the cause of action had arisen in part within the local limits of the ordinary original jurisdiction of this Court, or if the defendant at the time of the commencement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he effected a partition and to whom the father also had bequeathed properties in the year 1973. The brothers, who even independent of the partition and the Will, as heirs to their late father, were entitled to share in the father's properties. Properties acquired by them prima facie cannot be regarded as coparceners in which the plaintiffs are entitled to claim a share. The mere fact that the plaintiffs have chosen to include some of the properties subsequently acquired by the brothers in the plaint schedule, therefore, cannot be regarded as a circumstance which is so strong as to compel the Court to grant leave to the plaintiffs to file a suit in this Court. 12. If the plaintiffs had brought the suit only in relation to the three items in Madras, as already noticed, question of granting leave would not arise, but having regard to all the facts of this case it is clear that a mere claim made by them in relation to those properties cannot be made the foundation on which their claim for a share in all other properties all of which are outside Madras should be tried by this Court. It would be like trying to make an elephant stand on a pin head. 13. Mr.Ramakrishnan, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made in the sound exercise of discretion. Having regard to all relevant factors and the question of balance of convenience and having regard to the averments made in the plaint and the fact that the bulk of the properties are situated outside the jurisdiction of this Court, the discretion of the Court was required to be exercised against rather than in favour of granting leave. 17. In support of his submission that the balance of convenience is indeed a very relevant factor, Counsel relied on a Division Bench decision of this Court in Seshagiri Row v. Nawab Asker Jung Aftal Dowlah, ILR 30 Mad. 438. The Bench in that decision considered the scope of Clause 12 and held that having regard to the wording of Article 12 it is clear that the fact that the cause of action arises in part within the local limits is not conclusive and that notwithstanding that the cause of action arises in part within the local limits, the Court may decline to give leave to sue. As regards the law of this Court, so far we are aware it has never been held that the question of convenience is not a question which may be taken into consideration in dealing with the applications under Article 12, and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand the documents produced by the plaintiffs clearly show that those three items were purchased by some of the defendants nearly two decades after the demise of their father in whose estate the plaintiffs claim a share. 21. Moreover, considerations of convenience are very germane while determining the question of grant, refusal or revocation of leave. Almost all the properties, the documents relating thereto and the witnesses who have knowledge of the same are outside the city of Madras. 22. We, therefore, do not find any merit in the appeal and the same is liable to be dismissed. 23. We place on record the submission made by the learned senior counsel for the defendants that his clients have no desire to prolong the suit and that they are ready to file written statement in the Court which is found to have jurisdiction to try the suit and that they would be ready for trial of the suit in September, 2001. 24. The trial Judge had granted three weeks' time to present the plaint in the proper forum. We now extend that time till the expiry of a period of thirty days from the date of receipt of a certified copy of this order. The Court, which is found to have jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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