IMPORTANT POINTS
(1) Partition suit – Mere existence of one item out of several items of properties, would confer territorial jurisdiction on Court.
(2) Mis-joinder or non-joinder of parties is not fatal to decree passed by Court.

JUDGMENT

Sathish Ninan, J.—The preliminary decree in a suit for partition is under challenge by the 2nd defendant. Though various items of property are sought to be partitioned, the present appeal is confined to the plaint ‘F’ schedule item No.1. Hence, the discussions herein are confined to the same.

2. The plaint ‘F’ schedule item No.1 is a residential flat at Mumbai. It belonged to one Velayudhan. He died on 21.03.1986. His wife, Ammu, died on 05.01.2002. They had 6 children, namely, Rajendran and defendants 1 to 5. Rejendran died on 03.06.2003. His legal heirs seek for partition.

3. The trial court passed the impugned preliminary decree for partition, declaring that the plaintiffs together, and each of the defendants, are entitled for 1/6 shares each.

4. We have heard Shri. B. Krishnan, the learned counsel on behalf of the appellant and Shri. G. Sreekumar Chellur, the learned counsel on behalf of the contesting respondents.

5. The arguments of the learned counsel for the appellant are as under;

(i) Section 16(b) of the Code of Civil Procedure requires a suit for partition to be filed at the place where the immovable properties are situated. The property in question is at Mumbai. The trial court did not have territorial jurisdiction to entertain the suit.

(ii) Section 120 of the Code of Civil Procedure exempts the application of Section 17 of the Code of Civil Procedure to High Courts having original civil jurisdiction. Rule 12 of the Bombay High Court Rules confers original jurisdiction to immovable properties situated within the local limits of High Court. Therefore, Section 17 of the Code of Civil Procedure could not come to the aid of the Sub Court, Chavakkad (trial court) to entertain the suit.

(iii) The cause of action in respect of the property at Mumbai, being separate from that of the other items, Section 17 of the Code of Civil Procedure cannot have any application in the light of the judgment of the Apex Court in Shivnarayan (D) by Lrs. v. Maniklal (D) Thr. Lrs. and others [(2020) 11 SCC 629].

(iv) By virtue of nomination made by Velayudhan to the Society, the shares of Velayudhan were transferred to the 2nd defendant. Thus, the 2nd defendant is the absolute owner and it is not available for partition.

(v) The suit is not maintainable as barred under Section 100 read with Section 69 of the Kerala Co-operative Societies Act.

(vi) The appellant is a resident of Mumbai whereas the others are not. He had expended amounts and completed the formalities with the Society, for assignment of the apartment. Hence, in equity, the item is to be allotted to him.

6. Apart from the plaint ‘F’ schedule item No.1, namely, the property in question, almost all the other items sought to be partitioned are situated within the territorial jurisdiction of the trial court. Section 16 stipulates that a suit for partition is to be filed in the Court within whose territorial jurisdiction the property sought to be partitioned is situated. In terms of Section 17 of the Code of Civil Procedure, if immovable property is situated within the jurisdiction of different Courts, suit can be instituted in any of the Courts within whose jurisdiction any portion of the property is situated. In Shivnarayan (D) By Lrs. v. Maniklal (D) Thr. Lrs. and others [(2020) 11 SCC 629], the interplay between Section 16 and Section 17 of the Code of Civil Procedure were considered and it was held thus;

“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 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