SHIVNARAYAN (D) BY LRS. versus MANIKLAL (D) THR. LRS. & ORS. on 6 February 2019

[2019] 2 S.C.R. 1

SHIVNARAYAN (D) BY LRS.

v.

MANIKLAL (D) THR. LRS. & ORS.(Civil Appeal No. 1052 of 2019)FEBRUARY 06, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Code of Civil Procedure, 1908:

ss. 16, 17 and 39(1)(c); Order II rr. 2 and 3 – Suit beforethe Court in Indore – In respect of two properties (One at Indoreand another at Mumbai) – Seeking declaration of Will in favour ofdefendant Nos. 4 to 6 as null and void; seeking declaration of saledeed, in respect of Mumbai property, in favour of defendant Nos. 7and 8 as null and void; and seeking declaration of transferdocuments in respect of Indore property in favour of defendantNos. 9 and 10 as null and void – Application filed by defendantNos. 7 and 8 seeking dismissal of suit against them for want ofterritorial jurisdiction and for misjoinder of parties and cause ofaction – Trial court struck out the pleadings in respect of the propertyin Mumbai and relief related thereto, holding that separate causeof actions cannot be combined in a single suit – High Court upheldthe order of trial court – On appeal, held: Section 16 lays downgeneral principle that suits are to be instituted where subject-matteris situated – Section 17 engrafts exception to the general rule thatsuit may be instituted in any court within local limits of whosejurisdiction any portion of the property is situated – The word‘property’ has to be used as plural i.e. ‘properties’ by virtue of s. 13of General Clauses Act – The expression ‘only portion of theproperty’ can be read as portion of one or more properties situatedin jurisdiction of different courts and can also be read as portionof several properties situated in jurisdiction of different courts –However, there is one rider that suit should be based on same causeof action with respect to the properties situated in jurisdiction ofdifferent courts – In the present case the suit contained three set ofdefendants with different cause of action for each set of defendantsfor two properties situated in two jurisdictions – Different cause ofaction could not have been clubbed together – The suit with regardto the Mumbai property was not maintainable – Order II, r. 2 cannot

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Abe read in a manner as to permit clubbing of different cause ofaction in a suit – Rule 3 of Order II permits clubbing different causesof action against the same defendant or defendants jointly while inthe present case suit is against different set of defendants –Therefore, the application filed by defendant Nos. 7 and 8 wasrightly allowed – General Clauses Act, – s. 13.B

Dismissing the appeal, the Court

HELD: 1.1 Sections 16 and 17 of the C.P.C. are part of theone statutory scheme. Section 16 contains general principle thatsuits are to be instituted where subject-matter is situate whereasCSection 17 engrafts an exception to the general rule as occurringin Section 16. [Para 28][21-E-F]

1.2 The word ‘property’ occurring in Section 17 althoughhas been used in ‘singular’ but by virtue of Section 13 of theGeneral Clauses Act it may also be read as ‘plural’, i.e.,D“properties”. Section 17 can be applied in event there are severalproperties, one or more of which may be located in differentjurisdiction of courts. The word “portion of the property”occurring in Section 17 has to be understood in context of morethan one property also, meaning thereby one property out of a lotof several properties can be treated as portion of the property asEoccurring in Section 17. Thus, interpretation of word “portion ofthe property” cannot only be understood in a limited andrestrictive sense of being portion of one property situated injurisdiction of two courts. The expression any portion of theproperty can be read as portion of one or more properties situatedFin jurisdiction of different courts and can be also read as portionof several properties situated in jurisdiction of different courts.[Paras 11, 28(i) and 28(ii)][13-C-D, 21-F-G]

1.3 A suit in respect to immovable property or propertiessituate in jurisdiction of different courts may be instituted in anyGcourt within whose local limits of jurisdiction, any portion of theproperty or one or more properties may be situated. A suit inrespect to more than one property situated in jurisdiction ofdifferent courts can be instituted in a court within local limits ofjurisdiction where one or more properties are situated provided H

suit is based on same cause of action with respect to theproperties situated in jurisdiction of different courts. [Paras 28(iii)and 28(iv)][21-H, 22-A-B]

1.4 The scheme as delineated by Section 39 of CPCindicates that a decree of Court may include immovable propertysituate in local limits of that Court as well as property situatedoutside the local limits of the jurisdiction of the Court passingthe decree. Section 39(1)(c) re-enforces the conclusion that asper Section 17, suit may be filed with regard to immovable propertysituated outside the local limit of the jurisdiction of the Court.However, passing a decree by a Court with regard to immovableproperty situate outside the local jurisdiction of the Courtpassing the decree may not only confine to Section 17 but theremay be other circumstances where such decree is passed.Section 20 of C.P.C. may be one of the circumstances wheredecree can be passed against the defendant whose property maysituate in local jurisdiction of local limits of more than one Court.[Para 23][20-A-C]

1.5 Section 17 uses the words ‘the suit may be instituted inany Court’. The use of word in Section 17 makes it permissiveleaving discretion in some cases not to file one suit with regardto immovable property situated in local jurisdiction of more thanone court. One of the exceptions to the rule is cases of partialpartition where parties agree to keep some property joint andget partition of some of the properties. [Para 24][20-D-E]

Nilkanth Balwant Natu and Others v. Vidya NarasinhBharathi Swami and Others AIR 1930 PC 188;Nrisingha Charan Nandy Choudhry v. Rajniti PrasadSingh and Others AIR 1936 PC 189 – relied on.

Rajendra Kumar Bose v. Brojendra Kumar Bose AIR1923 Calcutta 501; Kubra Jan v. Ram Bali and Others(1908) ILR 30 All. 560; Ramdhin and Others v.Thakuran Dulaiya and Others AIR 1952 Nag. 303 (FullBench); Basanta Priya Dei and Another v. RamkrishnaDas and Others AIR 1960 Ori. 159; Laxmibai v.Madhankar Vinayak Kulkarni and Others AIR 1968Kant. 82; Prem Kumar and Others v. Dharam Pal Sehgaland Others AIR 1972 Delhi 90; Janki Devi v. Mannilaland Others AIR 1975 All. 91; Sardar Nisar Ali Khan v.

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4 SUPREME COURT REPORTS [2019] 2 S.C.R.

AMohammad Ali Khan AIR 1932 PC 172; Karan Singhand Others v. Kunwar Sen and Others AIR 1942 All.387; Smt. Janki Devi v. Manni Lal and Others AIR 1975All. 91 – referred to.

2.1 In the prsent case, the suit filed by the appellantBcontained three different sets of defendants with different causesof action for each set of defendants. Defendant Nos. four to sixare defendants in whose favour Will was executed. In the plaint,the Will was sought to be declared as null and void. The secondcause of action in the suit pertains to sale deed executed in favourof defendant Nos.7 and 8 with regard to Bombay property. TheCthird set of cause of action relates to transfer documents relatingto Indore property which was in favour of defendant Nos.9 and10. The transfer documents dated 21.10.1986, 21.11.1988 and20.08.1993 are relating to Indore property. The plaintencompasses different causes of action with different set ofDdefendants. The cause of action relating to Indore property andBombay property were entirely different with different set ofdefendants. The suit filed by the plaintiff for Indore property aswell as Bombay property was based on different causes of actionand could not have been clubbed together. The suit as framedwith regard to Bombay property was clearly not maintainable inEthe Indore Courts. The trial court did not commit any error instriking out the pleadings and relief pertaining to Bombayproperty. [Para 29][22-C-F]

2.2 The cause of action according to Order II Rule 2 sub-clause (1) is one cause of action. What is required by Order IIFRule 2 sub-clause (1) is that every suit shall include the whole ofthe claim on the basis of a cause of action. Order II Rule 2 cannotbe read in a manner as to permit clubbing of different causes ofaction in a suit. A perusal of sub-clause (1) of Order II Rule 3provides that plaintiff may unite in the same suit several causesof action against the same defendant, or the same defendantsGjointly. What is permissible is to unite in the same suit severalcauses of action against the same defendant, or the samedefendants jointly. In the present case suit is not against the samedefendant or the same defendants jointly. There are differentset of defendants who have different causes of actions.H[Para 30][22-G-H, 23-A-B]

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2.3 In the application filed by defendant Nos. 7 and 8, theheading of the application itself referred to “mis-joinder of partiesand causes of action”. In the application, it was categoricallymentioned that there was mis-joinder of parties and causes ofaction. The trial court in its order has also clearly held that plaintiffhas clubbed different causes of action which is to be deleted fromthe present suit. The trial court further held that the plaintiff isnot justified in including different properties and separate causeof actions combining in single suit. Therefore, it cannot be saidthat defendant Nos. 7 and 8 in their application had not questionedthe cause of action. [Para 31, 32][23-C-E]

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2.4 The trial court has rightly allowed the application filedby the defendant Nos.7 and 8. The High court did not commit anyerror in dismissing the writ petition. [Para 33][23-E-F]

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1052of 2019.

From the Judgment and Order dated 13.11.2013 of the High Courtof Madhya Pradesh Bench at Indore in Writ Petition No. 7535 of 2011.

AVinay Navare, Ms. Gwen Kartika, Ms. Abha R. Sharma, Advs.for the Appellants.

Chinmoy Khaladkar, Ms. Neha Sharma, Advs. for theRespondents.

The Judgment of the Court was delivered by B

ASHOK BHUSHAN, J.

1. This appeal has been filed by the appellant against the judgmentof High Court of Madhya Pradesh dated 13.11.2013 by which judgmentwrit petition filed by the appellant challenging the order dated 17.08.2011of the III Additional District Judge, Indore in Civil Suit No.60-A of 2010Chas been upheld dismissing the writ petition.

2. Brief facts of the case necessary to be noticed for deciding thisappeal are:- 2.1The appellant filed Civil Suit No.60-A of 2010 beforethe District Judge praying for declaring various transferDdocuments as null and void with regard to suit propertymentioned in Para No. 1A and Para No.1B of the plaint.Plaintiff also prayed for declaration that suit propertiesmentioned in Para Nos.1A and 1B are Joint FamilyProperty of plaintiff and defendant Nos. 1 to 3 andEplaintiff is entitled to receive 1/3[rd] part of the suitproperty. A Will executed by one Lt. Smt. Vimal Vaidyawas also sought to be declared to be null and void.Certain other reliefs were claimed in the suit.Theparties shall be referred to as described in the suit. Theplaintiff in Para No.2 of the plaint has set the followingFgenealogy of the parties:-“Kaluram Bairulal Vaidya(Since Deceased dt. 15/08/1969)ShankarlalManiklalBabulalShivnarayan(20/04/98)(Dft. No.1)(4/11/75)(Plaintiff)G(Deceased)(Deceased) VimalLeelbaiSushilaben(25.11.2007)Def. No.2Def. No.3(Wife of Deceased)”H

2.2In Para No.1 of the plaint, description of theproperty was mentioned to the following effect:-

1. A) Plot No. SP 79, Sudama Nagar Indore (M.P.) size30 ft. X 50 ft. area 1500 Sq. Ft. through membershipno. 2905 of Shikshak Kalyar Samiti, Sudama Nagar,Indore.

B) Bombay Suburban District S. No. 341, Pt. of BandraGrant Flat No.C/1/3, Sahitya Sahavas Co-op. HousingSociety, Second Floor, building known as “Abhang”Bandra (E), Mumbai 400 051 situated on the plotbearing no. C.T.S. No. 629, (S. No. 341-A.B.S.D.)Madhusudan Kalekar Marg, Gandhinagar, Bandra(East) Mumbai – 51.

2.3The plaintiff sought relief with regard to two properties(hereinafter referred to as Indore property, situate atIndore, State of Madhya Pradesh and Mumbai propertysituate at Mumbai, State of Maharashtra). Plaintiff’scase in the plaint was that Indore Property waspurchased by plaintiff’s father in the year 1968-1969.Plaintiff’s father died on 15.08.1969. Thereafter, Indoreproperty was joint family property of the plaintiff anddefendant Nos. 1 to 3. Plaintiff’s brother Babulal shiftedto Pune. Babulal was allotted Mumbai property undera Government Scheme for extraordinary persons likewriters and educationist. Babulal died in the year 1975.Thereafter, the Mumbai property, on the basis ofsuccession certificate issued by Court of Civil Judge(Senior Division), Pune came in the name of widow ofBabulal, Smt. Vimal Vaidya. Smt. Vimal Vaidyatransferred the Mumbai flat by sale deed dated15.10.2007 in favour of defendant Nos. 7 and 8. It wasfurther pleaded in the plaint that Smt. Vimal Vaidya alsodealt with Indore Property. The name of Smt. VimalVaidya was mutated in the year 1986 in the Indoreproperty and thereafter she transferred the Indoreproperty in favour of defendant Nos. 9 and 10. One setof pleadings was with regard to a Will executed in theyear 2000 by Smt. Vimal Vaidya in favour of defendantNos. 4 to 6. On aforesaid pleadings, following reliefswere prayed in Para No. 25 of the plaint:- A

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

B)The property mentioned in Para No.1B of Plaint anddocument related to its registered deed to transfer beBdeclared null and void and which is not binding on thepart of Plaintiff.

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

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D)Court Commissioner be appointed to make division ofsuit property and 1/3 part possession be given to thePlaintiff.

E)During the hearing of the suit injunction order be passedin respect of the property not to create third party interestDby the Defendants.

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

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

H)The forged will executed by Late Vimal Vaidya underEinfluence of defendant No. 4 and his associates relativesDefendant No. 5 and 6 and other relatives of Kherfamily. Because, Late Babulal Vaidya was a memberof undivided Hindu family. Therefore, Late. VimalVaidya was not authorized to execute that alleged willFas per the Law. Therefore, the registered alleged willbe declared null and void and be declared that it is notbinding on the part of the Plaintiff.”

2.4The defendant Nos. 7 and 8 appeared in suit and filed anapplication with the heading “application for striking outGpleadings and dismissing suit against defendants No.7 and 8for want of it territorial jurisdiction and mis-joinder of partiesand causes of action.” The defendant Nos. 7 and 8 pleadedthat for property being situated at Bandra East, Mumbai, theCourt at Indore has no territorial jurisdiction. It was furtherpleaded by the defendant that suit suffers fatally fromHmisjoinder of parties as well as causes of action. Thedefendant Nos. 7 and 8 pleaded that there is no nexus at all between the two properties – one situate at Indore and otherat Mumbai. Details of different causes of action and natureof the properties, details of purchasers for both differentsale transactions have been explained in detail in Para No. 6of the application. It was further pleaded that Mumbaiproperty does not form asset of any Hindu Undivided Family.Mumbai property was acquired by Babulal in his own nameand after his death on the basis of succession, pleaded thatno part of the cause of action for the Mumbai property tookplace in Indore. In the application, following reliefs has beenprayed for by the defendant Nos.7 and 8:- “(a) All the pleadings and the relief clauses relating to theproperty situate at Mumbai may kindly be ordered tobe struck off from the plaint, in exercise of powersconferred on this Hon’ble Court under Order 6 Rule16 of the Civil Procedure Code, and as a consequencethe suit against the defendants No.7 and 8 may kindlybe dismissed with costs for the answering defendants;while the Suit relating to the Indore property may becontinued if otherwise round maintainable under thelaw; OR in the alternative, An order may kindly be passed declining to entertainthe part of the suit relating to the property in Mumbaiwith costs for the answering defendants; and (b)Such other order may kindly be passed as may bedeemed appropriate in the circumstances of the case.”

2.5 The trial court after hearing the parties on the applicationdated 19.03.2011 filed by the defendant Nos. 7 and 8 passedan order dated 17.08.2011 allowed the application. An orderwas passed deleting the property mentioned In Para No. 1Bof the plaint and the relief sought with regard to the saidproperty. The trial court held that separate cause of actionscannot be combined in a single suit.

2.6 Aggrieved by the order of the trial court, a writ petition wasfiled in the High Court, which too has been dismissed by theHigh Court vide its order dated 13.11.2013 affirming the orderof the trial court. High Court referring to Section 17 of the A

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Civil Procedure Code, 1908 held that for property situated atMumbai, the trial court committed no error in allowing theapplication filed by defendant Nos. 7 and 8. The plaintiff-appellant aggrieved by the order of the High court has comeup in this appeal.

B3. 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 didnot correctly interpret Section 17 of the Code of Civil Procedure. Thepartition suit filed by the appellant with regard to Mumbai and Indoreproperties was fully maintainable. He submits that Order II Rule 2 ofCCPC mandates that the plaintiff must include the whole claim in respectof a cause of action in the suit. The cause of action claimed by theplaintiff was denial of the plaintiff’s right to share in the Joint FamilyProperty. Restrictive interpretation of Section 17 will do violence to themandate of Order II Rule 2. Section 39(1)(c) of the CPC itselfDcontemplate that there can be a decree of an immovable property, whichis situated outside the local limits of the jurisdiction. The words “immovableproperty”’ used in Section 17 is to be interpreted by applying Section 13of the General Clauses Act. It provides that in all Central Acts andRegulations, unless the context and subject otherwise requires, “any”singular term shall include plural. In event, it is accepted that withEregard to separate properties situated in different jurisdictions, separatesuits have to be filed that shall result in conflicting findings of differentCourts and shall involve the principles of res judicata.

5. Learned counsel appearing for defendant Nos. 7 and 8 refutingthe submissions of learned counsel for the appellant contends that noFerror has been committed by trial court in deleting the property at ParaNo.1B in the plaint as well as pleadings and reliefs with regard to saidproperty. It is submitted that Section 17 of the CPC contemplate filingof a suit with respect to immovable property situated in jurisdiction ofdifferent courts only when any portion of the property is situated in thejurisdiction of a Court, where suit has to be filed. The word “any portionGof the property” indicate that property has to be one whose differentportions may be situated in jurisdiction of two or more Courts. He furthersubmits that there is no common cause of action with regard to propertysituate at Indore and property situate at Mumbai. Transfer deed withregard to Indore Property as well as transfer deeds of Mumbai propertyHare different. The purchasers of both the properties, i.e. Indore propertyand Mumbai property are also different. According to pleadings in the

plaint itself, the Mumbai property was purchased by Babulal, the husbandof Smt. Vimla Vaidya in his own name, which after death of Babulal inthe year 1975 was mutated in the name of Smt. Vimla Vaidya. Theplaintiff has sought to club different cause of actions in one suit. Thereis mis-joinder of the parties also in the suit since the defendants pertainingto different transactions have been impleaded in one suit whereas thereis no nexus with the properties, transactions and persons. Learned counselfor the defendant Nos. 7 and 8 submits that by order of Court of CivilJudge (Senior Division), Pune, the property is already mutated in theyear 1975 in the name of Smt. Vimla Vaidya after death of her husband,which was rightfully transferred by her to defendant Nos. 7 and 8 on15.10.2007. It is submitted that the Court at Indore might proceed withthe property at Indore with the defendants, who are related to Indoreproperty but suit pertaining to Mumbai property, transactions relatingthereto and defendants relating to Mumbai property have rightly beenstruck off from the case.

6. Before we consider the submissions of the learned counsel forthe parties, relevant provisions pertaining to place of suing as containedin Code of Civil Procedure needs to be noted. Section 15 to Section 20contains a heading “place of suing”. Section 16 provides that Suits to beinstituted where subject-matter situate. Section 16 is as follows:-

16. Suits to be instituted where subject-matter situate.—Subject to the pecuniary or other limitationsprescribed by any law, suits- (a) for the recovery of immovable property with orwithout rent or profits, (b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage for 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 institutedin the Court within the local limits of whosejurisdiction the property is situate:

Provided that a suit to obtain relief respecting, orcompensation for wrong to, immovable property held by or onbehalf of the defendant, may where the relief sought can be entirely A

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obtained through his personal obedience, be instituted either in theCourt within the local limits of whose jurisdiction the property issituate, or in the Court within the local limits of whose jurisdictionthe defendant actually and voluntarily resides, or carries onbusiness, or personally works for gain.

BExplanation.– In this section “property” means propertysituate in India.

7. Section 17, which falls for consideration in the present case,deals with suits for immovable property situate within jurisdiction ofdifferent courts is as follows:-

17. Suits for immovable property situate within jurisdictionof different Courts.—Where a suit is to obtain reliefrespecting, or compensation for wrong to, immovableproperty situate within the jurisdiction of different Court,the suit may be instituted in any Court within the local limitsof whose jurisdiction any portion of the property is situate:

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

8. We need to notice the Scheme under Code of Civil Procedureas delineated by Sections 16 and 17. Section 16 provides that suit shallbe instituted in the Court within the local limits of whose jurisdiction theEproperty is situated. Section 16(b) mentions “for the partition ofimmovable property”.

9. Now, we look into Section 17, which deals with suits forimmovable property situated within jurisdiction of different Courts. Asper Section 17, the suit may be instituted in any Court within the localFlimits of whose jurisdiction any portion of the property is situated. Whatis the meaning of the word “any portion of the property”? There maybe a fact situation where immovable property is a big chunk of land,which falls into territorial jurisdiction of two courts in which fact situationin Court in whose jurisdiction any portion of property is situated canentertain the suit. Whether Section 17 applies only when a compositeGproperty spread in jurisdiction of two Courts or Section 17 contemplateany wider situation. One of the submissions of the learned counsel forthe appellant is that the word “property” as occurring in Section 17 shallalso include the plural as per Section 13 of General Clauses Act, 1897.Section 13 of the General Clauses Act provides:- H

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 betaken 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 HighCourt explaining the word “property” used in Section 17 held that itincludes 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 Procedurecode may also be properties, hence, in a schedule of plaint, more thanone property can be included. Section 17 can be applied in event thereare several properties, one or more of which may be located in differentjurisdiction of courts. The word “portion of the property” occurring inSection 17 has to be understood in context of more than one propertyalso, meaning thereby one property out of a lot of several properties canbe treated as portion of the property as occurring in Section 17. Thus,interpretation of word “portion of the property” cannot only be understoodin a limited and restrictive sense of being portion of one property situatedin jurisdiction of two courts.

12. We now look into the decisions of various Courts in referenceto Section 17 of Civil Procedure Code. How the word “property” and“portion of the property” occurring in Section 17 has been understoodby different High Courts. There are few decisions of the Privy Councilalso where Section 17 of the Civil Procedure Code came for consideration.In Nilkanth Balwant Natu and Others Vs. Vidya Narasinh BharathiSwami and Others, AIR 1930 PC 188, Privy Council had occasion toconsider Section 17 of Civil Procedure Code. The properties in respectof which relief was sought by the plaintiff were situated in Satara, Belgaumand Kolhapur. Although Satara and Belgaum were situated in BritishIndia but Kolhapur was not. The Privy Council after noticing the provisionof Sections 17 and 16(c) laid down following:- “The learned Judge had jurisdiction to try the suit so far as itrelated to the mortgaged properties situate in Satara; and, inasmuch as the mortgaged properties in Belgaum are within thejurisdiction of a different Court in British India, he had jurisdictionto deal with those properties also.”

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A13. The Privy Council, thus, held that Satara Court had jurisdictionto entertain suit with regard to property situated at Satara and Belgaumwhereas 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 andOthers, AIR 1936 PC 189, mortgage lands were in the SonthalBParganas, 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 the Sonthal Parganas, but alsoin the Gaya District. What is the ordinary rule forCdetermining the court which can take cognizance of a suitfor immovable property situated within the local limits oftwo or more tribunals? The answer is furnished by Section17 of the Code of Civil Procedure (Act V. of 1908), whichprovides that where a suit is to obtain relief respectingimmovable property situate within the jurisdiction of differentDcourts, the suit may be instituted in any court within the locallimits of whose jurisdiction any portion of the property is situate.”

14. Different High Courts have also while interpreting Section 17of Civil Procedure Code laid down that Section 17 is applicable in casewhere properties are situated in the jurisdiction of more than one court.EIn Rajendra Kumar Bose Vs. Brojendra Kumar Bose, AIR 1923Calcutta 501, the Division Bench of the Calcutta High Court noticedfollowing:- “Exceptions to the rule that a suit cannot lie for partition of aportion of the family property have been recognised whenFdifferent portions of the family property are situated in differentjurisdictions, aid separate suits for separate portions havesometimes been allowed, where different rules of substantiveor adjective law prevail in the differed Courts; Hari v. GanpatRao, (1883) 7 Bom. 272; Ramacharia v. Anantacharia, (1894)18 Bom. 389; Moti Ram v. Kanhaya Lal, AIR 1920 Lah. 474;GPanchanon v. Sib Chandra, (1887) 14 Cal. 835; Balaram v. RamChandra, (1898) 22 Bom. 922; Abdul v. Badruddin, (1905) 28Mad. 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. 76;Jayaram v. Atmaram, (1879) 4 Bom. 482;”H

15. A Full Bench of Allahabad High Court in Kubra Jan Vs.Ram Bali and Others, (1908) ILR 30 All. 560 had occasion toconsider suit, which was filed at Bareilly with regard to Bareilly propertyas well as Bara Banki property situated in two different districts. Thejurisdiction at Bareilly Court was upheld in Paragraph Nos. 1 and 8, inwhich it was laid down as follows:- “1. This appeal has been laid before a Full Bench by reason ofa conflict in the authorities upon a question raised in the appeal.The suit is one by the daughter of one Bande Ali to recoverfrom her brother Akbar Husain and a number of otherdefendants, transferees from him, her share in the property ofher deceased father. This property is situate in the district ofBareilly and also in the district of Bara Banki in Oudh. It appearsthat Akbar Husain transferred the Bareilly property to thedefendants Nos. 2 to 8 and the Bara Banki property to personsfrom whom the defendant respondent Ram Bali acquired it byvirtue of a decree for pre-emption. The suit in regard to theBareilly property was compromised, with the result that the claimin respect of that property was abandoned, and the suitproceeded as regards the Bara Banki property only.

8. Again, it is said that after the compromise in respect of theBareilly property the Court ceased to have any jurisdiction todeal with the plaintiff’s claim, that is, that though the BareillyCourt bad jurisdiction, when the plaint was filed, to deal with thesuit, it ceased to have jurisdiction when portion of the propertyclaimed was withdrawn from the litigation. ‘It seems to me thatonce jurisdiction is vested in a Court, in the absence of aprovision of law to the contrary, that jurisdiction will not be takenaway by any act of the parties. There is no allegation here thatthe plaint was filed in the Bareilly Court with any intention todefeat the provisions of the Code of Civil Procedure as regardsthe venue of suits for recovery of immovable property. If anyfraud of that kind had been alleged and proved, otherconsiderations would arise. But in this case, as I have said, nosuch suggestion has been made.”

16. Similar view was taken in Ramdhin and Others Vs.Thakuran Dulaiya and Others, AIR 1952 Nag. 303 (FullBench);Basanta Priya Dei and Another Vs. Ramkrishna Das andOthers, AIR 1960 Ori. 159; Laxmibai Vs. Madhankar Vinayak A

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AKulkarni and Others, AIR 1968 Kant. 82; Prem Kumar andOthers Vs. Dharam Pal Sehgal and Others, AIR 1972 Delhi 90and Janki Devi Vs. Mannilal and Others, AIR 1975 All. 91.

17. The views of the different High Courts as well as of thePrivy Council, as noticed above, clearly indicate that Section 17 hasBbeen held to be applicable when there are more than one property situatedin different districts.

18. The point to be noticed is that the permissibility of institutingsuit in one Court, where properties, which are subject matter of the suitare situated in jurisdiction of different courts have been permitted withone rider, i.e., cause of action for filing the suit regarding property situatedCin different jurisdiction is one and the same. In a suit when the cause ofaction for filing the suit is different, the Courts have not upheld thejurisdiction of one Court to entertain suits pertaining to property situatedin different courts. In this context, we need to refer to some judgmentsof High Courts as well as of the Privy Council, which has considered theDissue. In Sardar Nisar Ali Khan Vs. Mohammad Ali Khan, AIR

1932 PC 172, Privy Council had occasion to consider the case wheresubject matter of the suit were several properties situated in jurisdictionof different courts. Suit was instituted in Oudh (which later becamepart of Uttar Pradesh). The Privy Council held that since there wasdifferent cause of actions, the same cannot be clubbed together. One ofEthe properties, which was situated in Punjab was referred to in the suitas Khalikabad property. Although, suit with regard to the other threeproperties had similar cause of action but cause of action with regard toKhalikabad property being found to be different, the Court held thatSection 17 Civil Procedure Code was not applicable. Following was laid Fdown in the case by the Privy Council:- “There remains the question of the Khalikabad estate. Herethe respondent cannot succeed unless he shows that underthe terms of the deed creating the wakf he is the trustee.That question depends upon the construction of the deed. It is aseparate and different cause of action from these which foundGthe proceedings in respect of the other three properties. TheirLordships are unable to find any jurisdiction for bringing the suitin respect of this property elsewhere than in the Court of thedistrict where the property is situate. Such justification cannotin their Lordships’ judgment be found in Section 17, Civil P.C.Hupon which the respondent relied.”

19. A Two-Judge Bench judgment of Allahabad High Court hasbeen heavily relied upon by the learned counsel for the respondentreported in AIR 1942 All. 387, Karan Singh and Others Vs. KunwarSen and Others. In the above case, suit properties were situated inHaridwar and Amritsar. Suit was filed in the Court of Civil Judge,Saharanpur. An application under Section 22, Civil P.C. was filed todetermine as to whether a suit which is pending in the Court of the CivilJudge of Saharanpur should proceed in the corresponding Court havingjurisdiction at Amritsar in the Punjab. The Court after noticing Section17 held that plaintiffs were claiming two properties against two set ofdefendants, whom they alleged to be trespassers. The Court held thatunless suit is filed on one cause of action, two properties situate in differentjurisdiction cannot be clubbed. Following was laid down:- “Having made these observations I must now return to thequestion whether in the suit with which we are dealing it can besaid that the relief claimed against the Defendants in possessionof the property at Hardwar and the Defendants in possessionof the property at Amritsar arises out of the same series of actsor transactions and whether the two properties claimed can, forthe purposes of Section 17, be described as a single entity. Itmust be admitted that there is no apparent connection betweenthe transfer of the Amritsar property to Amar Nath under thewill executed by Jwala Devi and the subsequent transfers madeby him and his successors-in-interest on the one hand and thetransfer made by Prem Devi of the Hardwar property on theother hand. It must be admitted also that the Plaintiffs are notclaiming the estates of Badri Das as a whole against any rivalclaimant to the estate. They are claiming two properties againsttwo sets of Defendants whom they allege to be trespassers andwho, if they are trespassers, have absolutely no connection witheach other. The only connecting link is that the Plaintiff’s claimin both the properties arose at the time of the death of PremDevi and that the claim is based on the assumption that theDefendants are in possession as the results of transfers madeby limited owners who were entitled, during their lives, to theenjoyment of the whole estate and the properties comprisedwithin it. It was held many years ago in the case of Mst. JehanBebee v. Saivuk Ram (1867) H.C.R. 1. 109, that unconnectedtransfers by a Hindu widow of properties comprised within thehusband’s estate did not give rise to one cause of action against AB

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the various transferees. The same rule was laid down in thecase of Bindo Bibi v. Ram Chandra (1919) 17 A.L.J. 658. Inthat case a reference was made to the decision in Murti v. BholaRam (1893) 16 All 165 and it was pointed out that that was acase where a claim was made against one Defendant who hadtaken possession of different properties in execution of onedecree. There is no doubt that that case is clearly distinguishablefrom the case with which we are dealing……………………”

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20. The above judgment was subsequently relied and explainedby Allahabad High Court in Smt. Janki Devi Vs. Manni Lal andOthers, AIR 1975 All. 91. In Paragraph No.11, following was laidCdown:- “11. Similar view was expressed in Smt. Kubra Jan v. RamBali, (1908)ILR 30 All 560 . This Full Bench decision does notappear to have been brought to the notice of the Division Benchhearing the case of Karam Singh v. Kunwar Sen AIR 1942 All387. However, many observations made therein are not contraryto the law laid down in the above mentioned Full Bench case.The sum and substance of this Division Bench case also is thatwhere in the facts and circumstances of the case all theproperties can be treated as one entity a joint trial shall bepermissible but not where they are more or less differentproperties with different causes of action. The materialobservations are as below:—

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“........ and this implies, in my judgment, that the acts ortransactions, where, they are different, should be soconnected as to constitute a single series which could fairlybe described as one entity or fact which would constitute acause of action against all the defendants jointly. Whetherthis necessary condition exists in any particular case would,of course, depend upon the nature of the case but I amsatisfied that this at least is necessary that the case should besuch that it could be said that the Court in which the suit wasinstituted had local jurisdiction in the first instance to dealwith the controversies arising between the plaintiffs and each F

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of the defendants………………

The property must, in the particular circumstances of the suit,be capable of being described as a single entity. Whether it canor cannot be so described will depend again upon the nature ofthe dispute between the parties. If there is a dispute, for instance H

about a single estate which both parties are claiming as a wholethat estate is obviously for the purposes of that particular suit asingle entity. If, on the other hand, the owner of an estate has aclaim against unconnected trespassers who have trespassedupon different parts of the estate or different properties situatedwithin it, those parts or those properties would not for thepurposes of the dispute between him and the trespassers beone 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 situatedin jurisdiction of more than two courts, the suit is maintainable only whensuit is filed on one cause of action.

22. Justice Verma of Allahabad High Court in his concurring opinionin Karan Singh v. Kunwar Sen (supra) while considering Section 17of C.P.C. has explained his views by giving illustration. Following wasobserved by Justice Verma “I agree, Suppose a scattered Hindu dies possessed ofimmovable property scattered all over India at Karachi, Peshwar,Lahore, Allahabad, Patna, Dacca, Shillong, Calcutta, Madrasand Bombay and is succeeded by his widow who, in the courseof 40 or 50 years, transfers on different dates portions of theproperty situated at each of the places mentioned above, todifferent persons each of whom resides at the place where theproperty transferred to him is situated, and the transfers arewholly unconnected with, and independent of one another. Uponthe widow’s death the reversioner wants to challenge thesevarious transfers. Learned counsel for the plaintiffs has arguedthat in such a case the reversioner is entitled to bring one suitchallenging all the transfers at any one of the places mentionedabove, impleading all the transferees, I find it very difficult tohold that such a result is contemplated by the provisions of theCode of Civil Procedure upon which reliance has been placedand 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 mentionedabove is accepted, startling results will follow.”

23. Now, we come to submission of learned counsel for theappellant based on Section 39 sub-section (1)(c)of C.P.C. It is submittedthat Section 39(1)(c) of C.P.C. is also a pointer to what is intended in AB

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ASection 17. The scheme as delineated by Section 39 indicates that whena decree is passed by a Court with regard to sale or delivery of immovableproperty situated outside the local limits of the jurisdiction of that Courtit may transfer the decree for execution to another Court. The provisionclearly indicates that a decree of Court may include immovable propertysituate in local limits of that Court as well as property situated outsideBthe local limits of the jurisdiction of the Court. Section 39(1)(C) re-enforcesour conclusion that as per Section 17 suit may be filed with regard toimmovable property situated outside the local limit of the jurisdiction ofthe Court. We may, however, add that passing a decree by a Court withregard to immovable property situate outside the local jurisdiction of theCCourt may not only confine to Section 17 but there may be othercircumstances where such decree is passed. Section 20 of C.P.C. maybe one of the circumstances where decree can be passed against thedefendant whose property may situate in local jurisdiction of local limitsof more than one Court.

D24. We may further notice that Section 17 uses the words ‘thesuit may be instituted in any Court’. The use of word in Section 17makes it permissive leaving discretion in some cases not to file one suitwith regard to immovable property situated in local jurisdiction of morethan one court. One of the exceptions to the rule is cases of partialpartition where parties agree to keep some property joint and get partitionEof some of the properties.

25. The partial partition of property is well accepted principle withregard to a joint family. In Mayne’s Hindu Law & Usage, 16[th] Edition inparagraph 485 following has been stated:

“485. Partition partial or total.-Partition may be either totalFor partial. A partition may be partial either as regards the personsmaking it or the property divided.

Partial as to properties.- It is open to the members of a jointfamily to severe in interest in respect to a part of the joint estatewhile retaining their status of a joint family and holding the rest asGthe properties of an undivided family. Until some positive action istaken to have partition of joint family property, it would remainjoint family property.”

26. Mulla on Hindu Law, 22[nd] Edition also refers to partial partitionboth in respect of the property and or in respect of the persons makingit. In paragraph 327 following has been stated:H

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

After a partition is affected, if some of the properties are treatedas common properties, it cannot be held that such propertiescontinued 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 jointfamily to make a division and severance of interest in respect of apart of the joint estate, while retaining their status as a joint familyand holding the rest as the properties of a joint and undividedfamily.”

The issues arising in the present case being not related to subjectof partial partition the issue need not to be dealt with any further.

27. Learned counsel for the appellant has also submitted thatpermitting filing of a separate suit with regard to property situate indifferent jurisdiction shall give rise to conflicting decision and decision inone suit may also be res judicata in another suit. We in the present casebeing not directly concerned with a situation where there are more thanone suit or a case having conflicting opinion we need not dwell the issueany further.

28. Sections 16 and 17 of the C.P.C. are part of the one statutoryscheme. Section 16 contains general principle that suits are to be institutedwhere subject-matter is situate whereas Section 17 engrafts an exceptionto the general rule as occurring in Section 16. From the foregoingdiscussions, we arrive at following conclusions with regard to ambit andscope of Section 17 of C.P.C.

(i) The word ‘property’ occurring in Section 17 althoughhas been used in ‘singular’ but by virtue of Section 13of the General Clauses Act it may also be read as‘plural’, i.e., “properties”.

(ii) The expression any portion of the property can be readas portion of one or more properties situated injurisdiction of different courts and can be also read asportion of several properties situated in jurisdiction ofdifferent courts.

(iii) A suit in respect to immovable property or propertiessituate in jurisdiction of different courts may be instituted A

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in any court within whose local limits of jurisdiction, anyportion of the property or one or more properties maybe situated.

(iv) A suit in respect to more than one property situated injurisdiction of different courts can be instituted in a courtBwithin local limits of jurisdiction where one or moreproperties are situated provided suit is based on samecause of action with respect to the properties situatedin jurisdiction of different courts.

29. Now, we revert to the facts of the present case and pleadingson record. The suit filed by the appellant contained three different setsCof defendants with different causes of action for each set of defendants.Defendant Nos. four to six are defendants in whose favour Will dated15.02.2000 was executed by late Smt. Vimal Vaidya. In the plaint, reliefas claimed in paragraph 25(H)is the will executed by late Smt. VimalVaidya was sought to be declared as null and void. The second cause ofDaction in the suit pertains to sale deed executed by late Smt. Vimal Vaidyadated 15.10.2007 executed in favour of defendant Nos.7 and 8 withregard to Bombay property. The third set of cause of action relates totransfer documents relating to Indore property which was in favour ofdefendant Nos.9 and 10. The transfer documents dated 21.10.1986,21.11.1988 and 20.08.1993 are relating to Indore property. The plaintEencompasses different causes of action with different set of defendants.The cause of action relating to Indore property and Bombay propertywere entirely different with different set of defendants. The suit filedby the plaintiff for Indore property as well as Bombay property wasbased on different causes of action and could not have been clubbedFtogether. The suit as framed with regard to Bombay property was clearlynot maintainable in the Indore Courts. The trial court did not commit anyerror in striking out the pleadings and relief pertaining to Bombay propertyby its order dated 17.08.2011.

30. Learned counsel for the appellant has also referred to andrelied on order II Rule 2 and Order II Rule 3 C.P.C. Learned counselGsubmits that order II Rule 2 sub-clause (1) provides that every suit shallinclude the whole of the claim which the plaintiff is entitled to make inrespect of the cause of action. The cause of action according to OrderII Rule 2 sub-clause (1) is one cause of action. What is required byOrder II Rule 2 sub-clause (1) is that every suit shall include the wholeHof 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 asuit. Relying on Order II Rule 3 learned counsel for the appellant submitsthat joinder of causes of action is permissible. A perusal of sub-clause(1) of Order II Rule 3 provides that plaintiff may unite in the same suitseveral causes of action against the same defendant, or the samedefendants jointly. What is permissible is to unite in the same suit severalcauses of action against the same defendant, or the same defendantsjointly. In the present case suit is not against the same defendant or thesame defendants jointly. As noticed above there are different set ofdefendants who have different causes of actions.

31. Learned counsel has lastly submitted that defendant Nos. 7and 8 in their application having not questioned the cause of action forwhich suit was filed, the submission raised on behalf of the counsel forthe respondent that suit was bad for misjoinder of the causes of actioncannot be allowed to be raised.

32. It is relevant to notice in the application filed by defendantNos. 7 and 8, the heading of the application itself referred to “mis-joinderof parties and causes of action”. In Para (1) of the application, it wascategorically mentioned that there was mis-joinder of parties and causesof action. The trial court in its order dated 17.08.2011 has also clearlyheld that plaintiff has clubbed different causes of action which is to bedeleted from the present suit. The trial court further held that the plaintiffis not justified in including different properties and separate cause ofactions combining in single suit.

33. We, thus, are of the view that the trial court has rightly allowedthe application filed by the defendant Nos.7 and 8. The High court didnot commit any error in dismissing the writ petition filed by the appellantchallenging the order of the trial court.

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

Kalpana K. Tripathy

Appeal dismissed.

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