IMPORTANT POINT
Suit for partition and declaration of invalidity of the sale executed in respect of immovable property situate in State of Haryana could not be filed in Delhi Court as the present suit could not be brought within the purview of the proviso to Section 16 of the Code or entertained relying on Section 20 of the Code on the basis that three out of the four defendants are residing within the jurisdiction of the court at Delhi.

Headnote:(i) Civil Procedure Code, 1908 — Sections 16(b), (d), 20; Order VII Rule 10 — Return of plaint for presentation to proper Court — Suit for partition and declaration in respect of properties situated in Gurgaon, Haryana, outside the jurisdiction of court at Delhi — Plaintiff filed a suit on original side of High Court of Delhi for declaration that oral Will allegedly made by her mother was never made and to pass a decree of partition in favour of plaintiff in respect of her entitled share — Immovable properties that were sought to be partitioned and alienation in respect of which was sought to be declared void, were admittedly situate in State of Haryana — Trial Court directed return of plaint for being presented to the court having jurisdiction — It was held that reliefs claimed in the plaint fell within the purview of Section 16(b) and (d) of the Code and that proviso to Section 16 had no application — Whether order returning the plaint is sustainable — (Yes).
       Held : There is no doubt that at the stage of consideration of the return of the plaint under Order VII Rule 10 of the Code, what is to be looked into is the plaint and the averments therein. At the same time, it is also necessary to read the plaint in a meaningful manner to find out the real intention behind the suit. (Para 10)
       Reading the plaint as a whole in this case, there cannot be much doubt that the suit is essentially in relation to the relief of partition and declaration in respect of the properties situate in Village Pataudi, Gurgaon, outside the jurisdiction of court at Delhi. It is no doubt true that there is an averment that an alleged oral will said to have been made at Delhi by the deceased mother and presumably relied on by defendants 1 and 2 was never made. But on our part, we fail to understand the need for claiming such a negative declaration. After all, the plaintiff can sue for partition, rendition of accounts and for setting aside the alienation effected by defendant No. 2 without the junction of the plaintiff on a claim that the plaintiff is also one of the heirs of the deceased mother. If in such a suit, the defendants propound any oral will as excluding the plaintiff from inheritance, the burden would be on them to establish the making of such an oral will and the validity thereof. The negative declaration sought for by the plaintiff appears to us to be totally superfluous and unnecessary in the circumstances of the case. It may be noted that it is not the case of the plaintiff that an oral will was made at Delhi. It is the case of the plaintiff that no oral will was made at Delhi. It is debatable whether in such a situation it can be said that any cause of action arose at all within the jurisdiction of the court at Delhi. On a reading of the plaint, the trial judge and the Division Bench have come to the conclusion that in substance the suit was one relating to immovable property situate outside the jurisdiction of the trial court in Delhi and hence the plaint had been presented in a court having no jurisdiction to entertain the suit. We are inclined to agree with the said understanding of the plaint by the trial judge and Division Bench, on a reading of the plaint as a whole. (Para 11)
       On a reading of the plaint as a whole, it is clear, as we have indicated above, that the suit is one which comes within the purview of Section 16(b) and (d) of the Code. If a suit comes within Section 16 of the Code, it has been held by this Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. & Anr. [(2005) 7 S.C.C. 791] that Section 20 of the Code cannot have application in view of the opening words of Section 20 “subject to the limitations aforesaid”. This Court has also held that the proviso to Section 16 would apply only if the relief sought could entirely be obtained by personal obedience of the defendant. The relief of partition, accounting and declaration of invalidity of the sale executed in respect of immovable property situate in Village Pataudi, Gurgaon, could not entirely be obtained by a personal obedience to the decree by the defendants in the suit. We are in respectful agreement with the view expressed in the above decision. Applying the test laid down therein, it is clear that the present suit could not be brought within the purview of the proviso to Section 16 of the Code or entertained relying on Section 20 of the Code on the basis that three out of the five defendants are residing within the jurisdiction of the court at Delhi. (Para 12)
       (ii) Civil Procedure Code, 1908 — Sections 16 & 20 — Applicability — If a suit comes within Section 16 of the Code, Section 20 of the Code cannot have application in view of opening words of Section 20 ‘subject to the limitations aforesaid’ — Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791 : Relied on. (Para 12)
       (iii) Civil Procedure Code, 1908 — Order VII Rule 10 — Return of plaint — At the stage of consideration of return of plaint under O. VII R. 10 of the Code, what is to be looked into is the plaint and the averments therein — For this it is also necessary to read the plaint in a meaningful manner to find out the real intention behind the suit. (Para 10)

JUDGMENT

P.K. Balasubramanyan, J. — Leave granted.

2. The appellant, hereinafter referred to as the plaintiff, is the daughter of Nawab Iftikar Ali Khan and Mehar Taj Sajeda Sultan. Defendants 1 and 2, who are respondents 1 and 2 herein, are her siblings. Defendant No.3 is her niece, being the daughter of her brother, Defendant No.1. Defendant Nos.4 and 5 are assignees from Defendant No.2.

3. The plaintiff filed a suit C.S. (OS) No. 495 of 2004 on the original side of the High Court of Delhi praying for the following reliefs:

“(a) Pass a decree of declaration declaring the oral Will dated 1.1.1995 allegedly made by Her Highness Begum Mehar Taj Sajida Sultan was never made, further declare that the Sale deed purported to have been executed on behalf of Defendant No.2 in favour of Defendant No.4 and 5 as null and void;

(b) to pass a decree of partition in favour of the plaintiff in respect of her entitled share in view of the Islamic Personal Law i.e. 1/4 of total properties/estates, out of 180 Kanals and 12 Morlas situated at Village Pataudi, Gurgaon left behind by above mentioned Her Highness Mehar Taj Sajida Sultan;

(c) Pass a decree of rendition of account in respect of the earnings of the above mentioned properties w.e.f. June, 2000 uptill filing of the present suit;

(d) Pass a decree of permanent injunction restraining the Defendants, their employees, servants whosoever acting on their behalf from using, alienating, parting with possession and/or dealing with in any manner whatsoever in respect of the respective shares of the plaintiff;

(e) Pass an order for cost of the suit; and

(f) Pass any other and further orders as this Hon’ble Court may deem fit, just and proper.”

4. The immovable properties that were sought to be partitioned and alienation in respect of which was sought to be declared void, were admittedly situate in Village Pataudi, Gurgaon in the State of Haryana, outside the jurisdiction of the Court in which the suit was instituted. The suit was filed in the Court at Delhi on the basis of the following averments in the plaint:

“The cause of action for filing the present suit arose on 1.1.1995 when the alleged oral Will was made by Her Highness Mehar Taj Begum Sajida Sultan at New Delhi, the cause of action arose on 25.9.1995 when Defendant No.1 organised a meeting. It again arose somewhere in March/April when the plaintiff got knowledge and on 22.10.2002 when the plaintiff issued legal notice. It further arose on 28.11.2002 and 30.11.2002 when the notices were replied and the same still subsists.

That Defendant No. 1 and 2 reside at Delhi. The cause of action arose at Delhi, as according to Defendants themselves alleged oral Will was made at New Delhi; threats of parting with the possession was also issued at Delhi hence this Hon’ble court has jurisdiction to entertain and try the present suit.”

5. The defendants raised an objection to the jurisdiction of the trial court. They pleaded that the main relief sought in the plaint was for partition of the properties situate in Gurgaon, not falling within the jurisdiction of Delhi court and the declarations sought for are also related to the said properties and in the light of Section 16(b) and (d) of the Code of Civil Procedure (for short ‘the Code’), the jurisdiction to entertain the suit was with the concerned court in the State of Haryana and hence the plaint was liable to be rejected. On their behalf, the following averment in paragraph 3(d) of the plaint was emphasised.

“Present suit is being confined to the properties situate at Village Patudi, Gurgaon (Haryana), left behind by the mother who had purchased these properties. So far as the other properties either left behind by their mother, father or other relatives are concerned, the Plaintiff is reserving her valuable rights to claim in due course, if need be.”

The description of the suit properties set out in paragraph 3(h) was also relied on.

6. On behalf of the plaintiff, this plea was resisted by contending that the

Click Here to Read the rest of this document

2007 Supreme(SC) 502

Cases Referred (3)