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Shivnarayan (D) By Lrs. vs Maniklal (D) Thr. Lrs. on 6 February, 2019

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1052 OF 2019

SHIVNARAYAN (D) BY LRS. …APPELLANT(S)

VERSUS

MANIKLAL (D)THR. LRS. ORS. …RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

This appeal has been filed by the appellant

against the judgment of High Court of Madhya Pradesh

dated 13.11.2013 by which judgment writ petition

filed by the appellant challenging the order dated

17.08.2011 of the III Additional District Judge,

Indore in Civil Suit No.60-A of 2010 has been upheld

dismissing the writ petition.

2. Brief facts of the case necessary to be noticed

for deciding this appeal are:-

Signature Not Verified

Digitally signed by
DEEPAK SINGH
Date: 2019.02.06
16:56:52 IST
Reason:

2.1 The appellant filed Civil Suit No.60-A of

2010 before the District Judge praying for

1
declaring various transfer documents as null

and void with regard to suit property

mentioned in Para No. 1A and Para No.1B of

the plaint. Plaintiff also prayed for

declaration that suit properties mentioned

in 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:-

“Kaluram Bairulal Vaidya
(Since Deceased dt. 15/08/1969)

Shankarlal Maniklal Babulal Shivnarayan
(20/04/98) (Dft. No.1) (4/11/75)
(Plaintiff)
(Deceased) (Deceased)

Vimal
Leelbai Sushilaben (25.11.2007)
Def. No.2 Def. No.3 (Wife of Deceased)”

2
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 property of the plaintiff and

defendant Nos. 1 to 3. Plaintiff’s brother
3
Babulal shifted to Pune. Babulal was

allotted Mumbai property under a Government

Scheme for extraordinary persons like writers

and educationist. Babulal died in the year

1975. Thereafter, the Mumbai property, on

the basis of succession certificate issued by

Court of Civil Judge (Senior Division), Pune

came in the name of widow of Babulal, Smt.

Vimal Vaidya. Smt. Vimal Vaidya transferred

the Mumbai flat by sale deed dated 15.10.2007

in favour of defendant Nos. 7 and 8. It was

further pleaded in the plaint that Smt. Vimal

Vaidya also dealt with Indore Property. The

name of Smt. Vimal Vaidya was mutated in the

year 1986 in the Indore property and

thereafter she transferred the Indore

property in favour of defendant Nos. 9 and

10. One set of pleadings was with regard to

a Will executed in the year 2000 by Smt.

Vimal Vaidya in favour of defendant Nos. 4 to

6. On aforesaid pleadings, following reliefs

were prayed in Para No. 25 of the plaint:-

“A) The property mentioned in Para
No.1 of the Plaint and its deed
4
of transfer documents be declared
null and void which is not
binding on the part of the
plaintiff.

B) The property mentioned in Para
No.1B of Plaint and document
related to its registered deed to
transfer be declared null and
void and which is not binding on
the part of Plaintiff.

C) The property mentioned in Para
No. 1A and 1B of the Plaint is
joint family property of the
Plaintiff and defendant No. 1 to
3 be declared joint family
property and Plaintiffs right to
receive 1/3 part of the suit
property.

D) Court Commissioner be appointed to
make division of suit property
and 1/3 part possession be given
to the Plaintiff.

E) During the hearing of the suit
injunction order be passed in
respect of the property not to
create third party interest by
the Defendants.

F) Plaintiff’s suit be declared
decreed with the expenses.

G) To grant any other relief which
this Hon’ble Court may be fit in
the interest of justice.

H) The 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

5
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 the

properties, details of purchasers for both

6
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 to his sole heir Smt. Vimal Vaidya in

the year 1975. It was pleaded that no part

of the cause of action for the Mumbai

property took place in Indore. In the

application, following reliefs has been

prayed for by the defendant Nos. 7 and 8:-

“(a) All the pleadings and the relief
clauses relating to the property
situate at Mumbai may kindly be
ordered to be struck off from
the plaint, in exercise of
powers conferred on this Hon’ble
Court under Order 6 Rule 16 of
the Civil Procedure Code, and as
a consequence the suit against
the defendants No.7 and 8 may
kindly be dismissed with costs
for the answering defendants;
while the Suit relating to the
Indore property may be continued
if otherwise round maintainable
under the law;

OR in the alternative,

7
An order may kindly be passed
declining to entertain the part
of the suit relating to the
property in Mumbai with costs
for the answering defendants;

and

(b) Such other order may kindly be
passed as may be deemed

appropriate in the circumstances
of the case.”

2.5 The trial court after hearing the parties on

the application dated 19.03.2011 filed by the

defendant Nos. 8 and 9 passed an order dated

17.08.2011 allowed the application. An order

was passed deleting the property mentioned In

Para No. 1B of the plaint and the relief

sought with regard to the said property. The

trial court held that separate cause of

actions cannot be combined in a single suit.

2.6 Aggrieved by the order of the trial court, a

writ petition was filed in the High Court,

which too has been dismissed by the High

Court vide its order dated 13.11.2013

affirming the order of the trial court. High

Court referring to Section 17 of the Civil

Procedure Code, 1908 held that for property

situated at Mumbai, the trial court committed

8
no error in allowing the application filed by

defendant Nos. 7 and 8. The plaintiff-

appellant aggrieved by the order of the High

court has come up in this appeal.

3. We have heard Shri Vinay Navare for the

appellant. Shri 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 CPC 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 CPC itself contemplate that

there can be a decree of an immovable property, which

is situated outside the local limits of the

9
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. 8

and 9 refuting the submissions of learned counsel for

the appellant contends that no error has been

committed by trial court in deleting the property at

Para No.1B in the plaint as well as pleadings and

reliefs with regard to said property. It is

submitted that Section 17 of the CPC contemplate

filing of a suit with respect to immovable property

situated in jurisdiction of different courts only

when any portion of the property is situated in the

jurisdiction of a Court, where suit has to be filed.

The word “any portion of the property” indicate that

10
property has to be one whose different portions may

be situated in jurisdiction of two or more Courts.

He further submits that there is no common cause of

action with regard to property situate at Indore and

property situate at Mumbai. Transfer deed with

regard to Indore Property as well as transfer deeds

of Mumbai property are different. The purchasers of

both the properties, i.e. Indore property and Mumbai

property are also different. According to pleadings

in the plaint itself, the Mumbai property was

purchased by Babulal, the husband of Smt. Vimla

Vaidya in his own name, which after death of Babulal

in the year 1975 was mutated in the name of Smt.

Vimla Vaidya. The plaintiff has sought to club

different cause of actions in one suit. There is

mis-joinder of the parties also in the suit since the

defendants pertaining to different transactions have

been impleaded in one suit whereas there is no nexus

with the properties, transactions and persons.

Learned counsel for the defendant Nos. 8 and 9

submits that by order of Court of Civil Judge (Senior

Division), Pune, the property is already mutated in

the year 1975 in the name of Smt. Vimla Vaidya after

11
death of her husband, which was rightfully

transferred by her to defendant Nos. 8 and 9 on

15.10.2007. It is submitted that the Court at Indore

might proceed with the property at Indore with the

defendants, who are related to Indore property but

suit pertaining to Mumbai property, transactions

relating thereto and defendants relating to Mumbai

property have rightly been struck off from the case.

6. Before we 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

12
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”
means property situate in India.

7. Section 17, which falls for consideration in the

present case, deals with suits for immovable property

situate within jurisdiction of different courts is as

follows:-

17. Suits for immovable property situate
within jurisdiction of different Courts.–

Where a suit is to obtain relief
13
respecting, or compensation for wrong to,
immovable property situate within the
jurisdiction of different Court, the suit
may be instituted in any Court within the
local limits of whose jurisdiction any
portion of the property is situate :

Provided that, in respect of the value
of the subject matter of the suit, the
entire claim is cognizable by such Court.

8. We need to notice the Scheme under Code of Civil

Procedure as delineated by Sections 16 and 17.

Section 16 provides that suit shall be instituted in

the Court within the local limits of whose

jurisdiction the property is situated. Section 16(b)

mentions “for the partition of immovable property”.

9. Now, we look into Section 17, which deals with

suits for immovable property situated within

jurisdiction of different Courts. As per Section 17,

the suit may be instituted in any Court within the

local limits of whose jurisdiction any portion of the

property is situated. What is the meaning of the

word “any portion of the property”? There may be a

fact situation where immovable property is a big

chunk of land, which falls into territorial

jurisdiction of two courts in which fact situation in

Court in whose jurisdiction any portion of property
14
is situated can entertain the suit. Whether
Section

17 applies only when a composite property spread in

jurisdiction of two Courts or Section 17 contemplate

any wider situation. One of the submissions of the

learned counsel for the appellant is that the word

“property” as occurring in Section 17 shall also

include the plural as per Section 13 of General

Clauses Act, 1897. Section 13 of the General 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 Civil

Procedure code may also be properties, hence, in a

15
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 Civil Procedure Code.

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 Civil

Procedure Code came for consideration. In Nilkanth

Balwant Natu and Others Vs. Vidya Narasinh Bharathi

Swami and Others, AIR 1930 PC 188, Privy Council had

occasion to consider Section 17 of Civil Procedure

16
Code. The properties in respect of which relief was

sought by the plaintiff were situated in Satara,

Belgaum and Kolhapur. Although Satara and Belgaum

were situated in British India but Kolhapur was not.

The Privy Council after noticing the provision of

Sections 17 and 16(c) laid down following:-

“The learned Judge had jurisdiction to
try the suit so far as it related to the
mortgaged properties situate in Satara;
and, inasmuch as the mortgaged properties
in Belgaum are within the jurisdiction of a
different Court in British India, he had
jurisdiction to deal with those properties
also.”

13. The Privy Council, thus, held that Satara Court

had jurisdiction to entertain suit with regard to

property situated at Satara and Belgaum whereas it

has no jurisdiction to entertain suit pertaining to

Kolhapur, which was not in the British India. In

another case of Privy Council, Nrisingha Charan Nandy

Choudhry Vs. Rajniti Prasad Singh and Others, AIR

1936 PC 189, mortgage lands were in the Sonthal

Parganas, State of Bihar and also in the Gaya

district of State of Bihar. In Paragraph 9,

following was laid down:-

“9. Now, the mortgage deeds include, as
already stated, lands situated, not only in
17
the Sonthal Parganas, but also in the Gaya
District. What is the ordinary rule for
determining the court which can take
cognizance of a suit for immovable property
situated within the local limits of two or
more tribunals? The answer is furnished by
Section 17 of the Code of Civil Procedure
(Act V. of 1908), which provides that where
a suit is to obtain relief respecting
immovable property situate within the
jurisdiction of different courts, the suit
may be instituted in any court within the
local limits of whose jurisdiction any
portion of the property is situate.”

14. Different High Courts have also while

interpreting Section 17 of Civil Procedure Code 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 Vs. 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.

18

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

Vs. Ram Bali and Others, (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 conflict in the
authorities upon a question raised in the
appeal. The suit is one by the daughter of
one Bande Ali to recover from her brother
Akbar Husain and a number of other
defendants, transferees from him, her share
in the property of her deceased father. This
property is situate in the district of
Bareilly and also in the district of Bara
Banki in Oudh. It appears that Akbar Husain
transferred the Bareilly property to the
defendants Nos. 2 to 8 and the Bara Banki
property to persons from whom the defendant
respondent Ram Bali acquired it by virtue of
a decree for pre-emption. The suit in regard
to the Bareilly property was compromised,
with the result that the claim in respect of
that property was abandoned, and the suit
proceeded as regards the Bara Banki property
only.

8. Again, it is said that after the
compromise in respect of the Bareilly

19
property the Court ceased to have any
jurisdiction to deal with the plaintiff’s
claim, that is, that though the Bareilly
Court bad jurisdiction, when the plaint was
filed, to deal with the suit, it ceased to
have jurisdiction when portion of the
property claimed was withdrawn from the
litigation. ‘It seems to me that once
jurisdiction is vested in a Court, in the
absence of a provision of law to the
contrary, that jurisdiction will not be
taken away by any act of the parties. There
is no allegation here that the plaint was
filed in the Bareilly Court with any
intention to defeat the provisions
of the
Code of Civil Procedure as regards the venue
of suits for recovery of immovable property.
If any fraud of that kind had been alleged
and proved, other considerations would
arise. But in this case, as I have said, no
such suggestion has been made.”

16. Similar view was taken in Ramdhin and Others Vs.

Thakuran Dulaiya and Others, AIR 1952 Nag. 303 (Full

Bench); Basanta Priya Dei and Another Vs. Ramkrishna

Das and Others, AIR 1960 Ori. 159; Laxmibai Vs.

Madhankar Vinayak Kulkarni and Others, AIR 1968 Kant.

82; Prem Kumar and Others Vs. Dharam Pal Sehgal and

Others, AIR 1972 Delhi 90 and Janki Devi Vs. Mannilal

and Others, 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

20
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

Vs. 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

21
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 cause of action with regard to Khalikabad

property being found to be different, the Court held

that Section 17 Civil Procedure Code was not

applicable. Following was laid down in the case by

the Privy Council:-

“There remains the question of the
Khalikabad estate. Here the respondent
cannot succeed unless he shows that under
the terms of the deed creating the wakf he
is the trustee. That question depends upon
the construction of the deed. It is a
separate and different cause of action from
these which found the proceedings in
respect of the other three properties.
Their Lordships are unable to find any
jurisdiction for bringing the suit in
respect of this property elsewhere than in
the Court of the district where the
property is situate. Such justification
cannot in their Lordships’ judgment be
found in
Section 17, Civil P.C. upon which
the respondent relied.”

19. A Two-Judge Bench judgment of Allahabad High

Court has been heavily relied upon by the learned

counsel for the respondent reported in AIR 1942 All.

387, Karan Singh and Others Vs. Kunwar Sen and

Others. In the above case, suit properties were

22
situated in Haridwar and Amritsar. Suit was filed

in the Court of Civil Judge, Saharanpur. An

application under Section 22, Civil P.C. was filed to

determine as to whether a suit which is pending in

the Court of the Civil Judge of Saharanpur should

proceed in the corresponding Court having

jurisdiction at Amritsar in the Punjab. The Court

after noticing Section 17 held that plaintiffs were

claiming two properties against two set of

defendants, whom they alleged to be trespassers. The

Court held that unless suit is filed on one cause of

action, two properties situate in different

jurisdiction cannot be clubbed. Following was laid

down:-

“Having made these observations I must now
return to the question whether in the suit
with 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

23
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.J. 658. In that case a
reference was made to the decision in
Murti
v. Bhola Ram (1893) 16 All 165 and it was
pointed out that that was a case where a
claim was made against one Defendant who
had taken possession of different
properties in execution of one decree.
There is no doubt that that case is clearly
distinguishable from the case with which we
are dealing……………………”

20. The above judgment was subsequently relied and

explained by Allahabad High Court in Smt. Janki Devi

Vs. Manni Lal and Others, AIR 1975 All. 91. In

Paragraph No.11, following was laid down:-

24
“11. Similar view was expressed in
Smt.
Kubra Jan v. Ram Bali, (1908)ILR 30 All 560
. This Full Bench decision does not appear
to have been brought to the notice of the
Division Bench hearing the case of Karam
Singh v. Kunwar Sen AIR 1942 All 387.
However, many observations made therein are
not contrary to the law laid down in the
above mentioned Full Bench case. The sum
and substance of this Division Bench case
also is that where in the facts and
circumstances of the case all the
properties can be treated as one entity a
joint trial shall be permissible but not
where they are more or less different
properties with different causes of action.
The material observations are as below:–

“…….. and this implies, in my
judgment, that the acts or
transactions, where, they are
different, should be so connected as
to constitute a single series which
could fairly be described as one
entity or fact which would constitute
a cause of action against all the
defendants jointly. Whether this
necessary condition exists in any
particular case would, of course,
depend upon the nature of the case
but I am satisfied that this at least
is necessary that the case should be
such that it could be said that the
Court in which the suit was
instituted had local jurisdiction in
the first instance to deal with the
controversies 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,

25
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 C.P.C. 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, Peshwar, 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 where the property transferred to
26
him is situated, and the transfers are
wholly unconnected with, and independent of
one another. Upon the widow’s death the
reversioner wants to challenge these
various transfers. Learned counsel for the
plaintiffs has argued that in such a case
the reversioner is entitled to bring one
suit challenging all the transfers at any
one of the places mentioned above,
impleading all the transferees, I find it
very difficult to hold that such a result
is contemplated by the provisions of the
Code of Civil Procedure upon which reliance
has been placed and which are mentioned in
the judgment of my learned brother. I do
not consider it necessary to pursue the
matter any further. It is clear to my mind
that, if the plaintiffs; argument mentioned
above is accepted, startling results will
follow.”

23. Now, we come to submission of learned counsel for

the appellant based on Section 39 sub-section (1)

(c)of C.P.C. It is submitted that Section 39(1)(c) of

C.P.C. is also a pointer to what is intended in

Section 17. 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

27
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 our 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. We may,

however, add that passing a decree by a Court with

regard to immovable property 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 C.P.C. 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

28
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 following has been stated:

“”327. Partial partition.-(1) A partition
between coparceners may be partial either
in respect of the property or in respect of
the persons making it.

After a partition is affected, if some
of the properties are treated as common

29
properties, it cannot be held that such
properties continued to be joint
properties, since there was a division of
title, but such properties were not
actually divided.

(2) Partial as to property.- It is open
to the members of a joint family to make a
division and severance of interest in
respect of a part of the joint estate,
while retaining their status as a joint
family and holding the rest as the
properties of a joint and undivided
family.”

The issues arising in the present case being not

related to subject of partial partition the issue

need not to be dealt with any further.

27. Learned counsel for the appellant has also

submitted that permitting filing of a separate suit

with regard to property situate in different

jurisdiction shall give rise to conflicting decision

and decision in one suit may also be res judicata in

another suit. We in the present case being not

directly concerned with a situation where there are

more than one suit or a case having conflicting

opinion we need not dwell the issue any further.

28. Sections 16 and 17 of the C.P.C. are part of the

one statutory scheme. Section 16 contains general

principle that suits are to be instituted where

30
subject-matter is situate whereas
Section 17 engrafts

an exception to the general rule as occurring in

Section 16. From the foregoing discussions, we arrive

at following conclusions with regard to ambit and

scope of Section 17 of C.P.C.

(i) The word ‘property’ occurring in Section 17
although has been used in ‘singular’ 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

31
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 dated 21.10.1986, 21.11.1988 and 20.08.1993

are relating to Indore property. The plaint

encompasses different causes of action with different

set of defendants. The cause of action relating to

Indore property and Bombay property were entirely

different with different set of defendants. The suit
32
filed by the plaintiff for Indore property as well as

Bombay property was based on different causes of

action and could not have been clubbed together. The

suit as framed with regard to Bombay property was

clearly not maintainable in the Indore Courts. The

trial court did not commit any error in striking out

the pleadings and relief pertaining to Bombay

property by its order dated 17.08.2011.

30. Learned counsel for the appellant has also

referred to and relied on order II Rule 2 and Order

II Rule 3 C.P.C. Learned counsel submits that order

II Rule 2 sub-clause (1) provides that every suit

shall include the whole of the claim which the

plaintiff is entitled to make in respect of the cause

of action. The cause of action according to Order II

Rule 2 sub-clause (1) is one cause of action. What is

required by Order II Rule 2 sub-clause (1) is that

every suit shall include the whole of the claim on

the basis of a cause of action. Order II Rule 2

cannot be read in a manner as to permit clubbing of

different causes of action in a suit. Relying on

Order II Rule 3 learned counsel for the appellant

submits that joinder of causes of action is

33
permissible. A perusal of sub-clause (1) of Order II

Rule 3 provides that plaintiff may unite in the same

suit several causes of action against the same

defendant, or the same defendants jointly. What is

permissible is to unite in the same suit several

causes of action against the same defendant, or the

same defendants jointly. In the present case suit is

not against the same defendant or the same defendants

jointly. As noticed above there are different set of

defendants who have different causes of actions.

31. Learned counsel has lastly submitted that

defendant Nos. 7 and 8 in their application having

not questioned the cause of action for which suit was

filed, the submission raised on behalf of the counsel

for the respondent that suit was bad for misjoinder

of the causes of action cannot be allowed to be

raised.

32. It is relevant to notice in the application filed

by defendant Nos. 7 and 8, the heading of the

application itself referred to “mis-joinder of

parties and causes of action”. In Para (1) of the

application, it was categorically mentioned that

34
there was mis-joinder of parties and causes of

action. The trial court in its order dated 17.08.2011

has also clearly held that plaintiff has clubbed

different causes of action which is to be deleted

from the present suit. The trial court further held

that the plaintiff is not justified in including

different properties and separate cause of actions

combining in single suit.

33. We, thus, are of the view that the trial court

has rightly allowed the application filed by the

defendant Nos.7 and 8. The High court did not commit

any error in dismissing the writ petition filed by

the appellant challenging the order of the trial

court.

34. We do not find any merit in this appeal, the

appeal is dismissed accordingly.

………………….J.

(ASHOK BHUSHAN )

………………….J.

New Delhi, (K.M. JOSEPH )
February 06, 2019.

35

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