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:-

2.1The 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

1/3

rd

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.

2.3The 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

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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

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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.”

2.4The 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

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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,

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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.”

2.5The trial court after hearing the parties on

the application dated 19.03.2011 filed by the

defendant Nos. 7 and 8 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.

2.6Aggrieved 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

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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. 7

and 8 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. 7 and 8

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

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death of her husband, which was rightfully

transferred by her to defendant Nos. 7 and 8 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

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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 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, 16

th

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, 22

nd

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.

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