TaxTMI 
TaxTMI 
2019 (2) TMI 2016
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....n 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: 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, S....
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.... 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 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 t....
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....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 Code of Civil Procedure 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 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 prope....
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.... 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 subject-matter 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....
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.... 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 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 "por....
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....of whose jurisdiction any portion of the property is situate. 14. Different High Courts have also while interpreting Section 17 of Code of Civil Procedure 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 v. 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. 134; Rammohan v. Mulchand, (1906) 28 All. 39; Lachmana v. Terimul, 4 Mad. Jur. 241; Subba v. Rama, (1866-67) 3 Mad. H....
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....960 Ori. 159; Laxmibai v. Madhankar Vinayak Kulkarni and Ors. AIR 1968 Kant. 82; Prem Kumar and Ors. v. Dharam Pal Sehgal and Ors. AIR 1972 Delhi 90 and Janki Devi v. Mannilal and Ors. 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 v. Mohammad Ali Khan AIR 1932 PC 172, Privy Council had occas....
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....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....
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....troversies 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....
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....situate outside the local jurisdiction of the Court passing the decree may not only confine to Section 17 but there may be other circumstances where such decree is passed. Section 20 of Code of Civil Procedure 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 p....
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....ular' 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.....