1951 (10) TMI 21 - HC - Indian Laws

Court's Jurisdiction on Partition Suit Upheld; Costs Awarded to Respondents

Shiv Bhagwan Moti Ram Saraoji Versus Onkarmal Ishar Dass And Ors.

Shiv Bhagwan Moti Ram Saraoji Versus Onkarmal Ishar Dass And Ors. - TMI Issues Involved:1. Jurisdiction of the Court2. Suit for partition of properties (both movable and immovable)3. Validity of the document executed by the plaintiff4. Impact of subsequent legislative changes on jurisdiction5. Carrying on business within jurisdictionIssue-wise Detailed Analysis:1. Jurisdiction of the Court:The appeal raises a significant question regarding the jurisdiction of the High Court. The trial judge dismissed the suit based on a lack of jurisdiction, which was contested by the plaintiff. The plaintiff argued that the issue of jurisdiction should not always be treated as a pure issue of law but could involve mixed questions of law and fact. The Court clarified that jurisdictional issues could be tried as preliminary issues if they are purely legal, but if they require evidence, they may need to be tried along with other issues.2. Suit for Partition of Properties (Both Movable and Immovable):The plaintiff sought partition of both movable and immovable properties, alleging that some properties were joint family properties. The Court noted that a suit for partition of immovable properties is a suit for land, and jurisdiction is determined based on the location of the land. Since all immovable properties were outside the jurisdiction at the time of filing the suit, the Court initially had no jurisdiction. However, the Court could entertain the suit for partition of movable properties if some movables were within jurisdiction, as their location constitutes part of the cause of action.3. Validity of the Document Executed by the Plaintiff:The plaintiff challenged a release document executed in 1944, claiming it was obtained by misrepresentation and undue influence. The Court considered whether it had jurisdiction to entertain a suit for cancellation of the document when the document was executed outside jurisdiction. Two views were discussed: one that the existence of properties within jurisdiction affected by the document could constitute part of the cause of action, and the other that only a reasonable apprehension of injury was relevant. The Court leaned towards the former view, citing precedents where the location of properties influenced jurisdiction.4. Impact of Subsequent Legislative Changes on Jurisdiction:The Court examined the impact of legislative changes that brought Vikhroli within the jurisdiction of the High Court after the suit was filed. It held that procedural laws are generally retrospective, and the Court must apply the law in force at the time of trial. Therefore, the Court acquired jurisdiction over the Vikhroli property due to the legislative change, even though it was initially outside jurisdiction.5. Carrying on Business within Jurisdiction:The plaintiff alleged that the business carried on in Bombay by the joint family conferred jurisdiction. The Court discussed whether all members of a joint family could be said to carry on business if the 'karta' (manager) conducts the business. It concluded that only those members who actively participate in the business or hold themselves out as contracting parties can be considered to carry on business. The mere interest in the business or receiving profits does not suffice. Therefore, the Court held that the defendants did not carry on business within jurisdiction merely because the 'karta' did.Judgment:The Court set aside the trial judge's order dismissing the suit, holding that the Court had jurisdiction to try the suit for partition of movable properties and the immovable property situated at Vikhroli. The suit for partition of immovable properties outside jurisdiction was dismissed. The Court also addressed the issue of costs, ordering the respondents to pay half the costs of the appeal and the hearing before the trial judge.