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TMI Blog2019 (2) TMI 2016X X X X Extracts X X X X X X X X Extracts X X X X ..... rty. 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 Code of Civil Procedure was not applicable. 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 the 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. The partial partition of property is well accepted principle with regard to a joint family. 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff 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 Code of Civil Procedure 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 prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 Code of 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 Code of Civil Procedure. 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 Code of Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 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 v. Ram Bali and Ors. (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 conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 v. 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 cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Code of Civil Procedure 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, Peshawar, 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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