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1980 Supreme(Del) 215
High Court Of Delhi
BISHAMBER DAYAL - Appellant
Versus
RAM PERSHAD - Respondent
Suit 128 of 1970
Decided On : 08/20/1980
J.K.SETH, S.C.SINGHA
A suit for partition of immovable property situate within the jurisdiction of different courts can be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate.
Headnote:
PARTITION - Joint Hindu Family Property - Suit for partition and rendition of accounts - Properties situated in different jurisdictions - Jurisdiction of the Court - Section 17 of the Code of Civil Procedure, 1908 - Applicability - Valuation of the suit for purposes of court-fee and jurisdiction - Section 7(iv) of the Court Fees Act, 1870 - Applicability - Preliminary decree for partition and rendition of accounts passed.
Fact of the Case:
The plaintiff, Bishamber Dayal, filed a suit for partition and rendition of accounts against his two brothers, Ram Pershad and Chhotey Lal. Chhotey Lal died during the pendency of the suit, leaving the plaintiff and Ram Pershad as his only heirs. The properties in dispute were situated in Delhi and Rohtak districts. The plaintiff claimed that the properties were joint Hindu family properties and sought partition and rendition of accounts. The defendant, Ram Pershad, contested the suit, claiming that the properties belonged to him exclusively and that the plaintiff was only an employee.
Finding of the Court:
The court held that the properties in dispute were joint Hindu family properties and that the plaintiff and the defendant were entitled to equal shares. The court also held that the court had jurisdiction to entertain the suit with respect to the properties situated outside Delhi under Section 17 of the Code of Civil Procedure, 1908. The court further held that the suit was properly valued for purposes of court-fee and jurisdiction under Section 7(iv) of the Court Fees Act, 1870.
Issues: 1. Whether the suit is properly valued for purposes of court fee and jurisdiction? 2. Whether this court has jurisdiction to entertain the suit with respect to the property situated outside Delhi? 3. Whether the suit is bad for non-joinder of parties or misjoinder of Causes of action? 4. Whether the property as mentioned in Schedule 'a' of the plaint is a joint Hindu Family Property of which the plaintiffs, defendant No. 1 and defendant No. 2 are co-parceners having equal shares? 5. Whether defendant No. 1 is the sole proprietor of the property and the business mentioned in Schedule 'a' and the plaintiff is the benami? 6. Whether the plaintiff and defendant No. 1 are the partners of the business and the property mentioned in Schedule 'a' and if so, what is the share of each party? 7. Whether the plaintiff is entitled to decree for partition and rendition of accounts or in the alternative for dissolution of the firm and rendition of account and if so what properties have to be partitioned and what is the share of each party and who is the accounting party? 8. Whether the business of All India Book House and Vaish Book Depot are joint Hindu Family business? 9. Whether defendant No. 1 is entitled to the decree for rendition of accounts against the plaintiff of Kamla Nagar property? 10. Whether defendant No. 2 has 1/3rd share in the entire property?
Ratio Decidendi: 1. Section 17 of the Code of Civil Procedure, 1908, empowers a court to entertain a suit for partition of immovable property situate within the jurisdiction of different courts, if a portion of the property is situate within the local limits of its jurisdiction. 2. Section 7(iv) of the Court Fees Act, 1870, gives a right to the plaintiff in any of the suits mentioned in the clauses of that paragraph to place any valuation that he likes on the relief he seeks, subject, however, to any rules made under section 9 of the Suits Valuation Act.
Final Decision: The court passed a preliminary decree for partition of the properties in dispute and rendition of accounts. The court appointed a commissioner to effect partition by metes and bounds and to go into accounts.
( 52 ) ). There is no dispute that the properties situated in. village Subhana, District Rohtak, are joint Hindu Family properties of the parties. They are liable to be partitioned in equal share between them. In view of the provisions contained in section 17 of the Code of Civil Procedure, this Court has jurisdiction to grant relief with regard to these properties as well. It is clearly envisaged that where a suit is to obtain relief respecting, immovable property situate within the jurisdiction of different Courts, the suit can be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate. "the defendant has referred to section 120 of the Code of Civil Procedure, and pleaded that sections 16, 17 and 20 of the Code are not applicable to the High Court in the exercise of its original civil jurisdiction. This controversy, I find, came up for adjudication twice before this Court. One was in the case of State Bank of India v. Himalayan Exporters (Suit No. 51 of 1968, decided by a Division Bench on 20-11-1970) (7), and the other in State Bank of India v. 0. P. Gupta, 1979 Delhi 201 (8 ). It has been held that section 120 of the Code cannot be read to exclude the applicability of sections 16,17 and 20 of the Code to this Court in the exercise of its original civil jurisdiction instead that section 120 is applicable to the three High Courts at Calcutta, Madras and Bombay which were the only High Courts at that time exercising ordinary original civil jurisdiction, when the amendment was introduced in the heading of Part IX and section 116 of the Code by section 14 of the Civil P. O. , Amendment Act 2 of 1951. The issue is, therefore, decided in the affirmative.
( 53 ) ). The plaintiff has fixed the value of the suit for purposes of partition at rupees two lacs, and paid court-fee of Rs. 19. 50 under Article 17 (iv) of the Court Fees Act. Similar court-fee has been affixed with regard to the properties in Schedule 'b' annexed to the plaint concerning village Subhana, District Rohtak, properties. The suit has been valued at Rs. 10,000 for obtaining their partition. As regards the relief for accounts, the valuation fixed is Rs. 130 and court-fee stamp of Rs. 13 has been paid. It has been held by a Full Bench of this Court in the case of Smt. Sheila Devi and others v. Shri Kishan Lal Kaira and others 1974 Vol. n, Delhi 491 (9), that paragraph (iv) of section 7 of the Court-fees Act gives a right to the plaintiff in any of. the suits mentioned in the clauses of that paragraph to place any valuation that he likes on the relief he seeks, subject, however, to any rules made under section 9 of the Suits Valuation Act. and the Court has no power to interfere with the plaintiff's valuation. In case at the time of passing the final decree, farther fixation of Court-fee is rendered necessary, its propriety will be considered then. I am satisfied that at this stage the suit has been properly valued for purposes of Court-fee and jurisdiction. Till partition of the properties, both the parties -have to be treated in joint prosession.
( 54 ) ). The result, therefore, is that I pass a preliminary decree for partition of the properties shown in Schedule 'a' and Schedule 'b' attached with the plaint. Each party has one-half share. A further decree for rendition of accounts is passed with respect to the properties and business mentioned in Schedule 'a' attached with the plaint. Shri R. K. Baweja, Advocate, is appointed as Commissioner for effecting partition by metes and bounds, and also going into accounts. His fee Rs. 1,500 is fixed tentatively, to be paid by the parties in equal share. Costs of the suit will abide the final result of the suit. Report be submitted by August, 1980.
D. R. KHANNA
( 1 ) THIS suit for partition and rendition of accounts brought by Bishamber Dayal, was ini
