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CASE NO.: Appeal (civil)  1921 of 2007

PETITIONER: BEGUM SABIHA SULTAN

RESPONDENT: NAWAB MOHD. MANSUR ALI KHAN & ORS

DATE OF JUDGMENT: 12/04/2007

BENCH: TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.  1921      OF 2007 (Arising out of SLP(C) No.4586 of 2006)

P.K. BALASUBRAMANYAN, J.

                1.              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. < 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;

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(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 first declaration regarding the alleged oral  Will of the mother wholly arose within the jurisdiction of the  court at Delhi and since that part of the prayer fell within the  jurisdiction of the court at Delhi, the court at Delhi had  jurisdiction to entertain the suit.  It was contended that the  cause of action regarding the will and the declaration sought

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in respect thereof, wholly arose in Delhi and that even  otherwise, three of the defendants were residing in Delhi,  within the jurisdiction of the court at Delhi and, in any event,  on that ground and on the ground that a part of the cause of  action arose in Delhi, the suit could be entertained in the  court at Delhi in terms of Section 20 of the Code.

7.              The learned Single Judge, the trial Judge, on a  reading of the plaint, came to the conclusion that the reliefs  claimed in the plaint fell within the purview of Section 16(b)  and (d) of the Code and that the proviso to Section 16 had no  application.   Section 20 could not be resorted to, since  Section 16 had application and Section 20 applied only if  Section 16 had no application.  Overruling the contention that  the first part of the declaratory relief was rightly claimed in the  court at Delhi, he held that the said declaration was also  related to the properties situated in village Pataudi, outside  the jurisdiction of the court at Delhi and hence the court at  Delhi had no jurisdiction to entertain the suit.  The trial judge,  therefore, directed the return of the plaint to the plaintiff for  being presented to the court having jurisdiction.  An offer  made to the plaintiff to pass an order in terms of Rule 10A of  Order VII of the Code was not accepted by the plaintiff.  Thus,  the plaint was returned to the plaintiff for being presented to  the proper court.

8.              The plaintiff filed an appeal against the order before  the Division Bench of the High Court.  The Division Bench, on  adverting to Section 16 of Code and the approach of the trial  judge to the question, agreed with the trial judge and  dismissed the appeal.  The Division Bench reiterated that the  suit was essentially and in substance for partition and since  the property lay beyond the jurisdiction of the trial court, the  suit could not be brought within the jurisdiction of the trial  court by exhibiting some ingenuity in introducing a plea  regarding an alleged oral Will said to have been brought into  existence in Delhi, within the jurisdiction of the court.   The  plaint had to be scrutinised for the real relief sought for  therein and so viewed, the trial judge was right in returning  the plaint for presentation to the proper court.  This decision  of the Division Bench is in challenge before us.

9.              Learned counsel for the appellant contended that  the substantial prayer in the plaint was for a declaration that  the oral Will dated 1.1.1995 allegedly made by the mother  Sajida Sultan was never made and the cause of action for that  relief wholly arose in Delhi within the jurisdiction of the trial  court.  He submitted that the other reliefs of partition,  accounting and declaration of invalidity of the sale executed by  Defendant No.2 were all reliefs that would flow only if the relief  regarding the declaration of Will was granted to the plaintiff  and consequently, those reliefs could be perceived to be only  consequential reliefs.  Counsel also pointed out that even if  Section 16(a) and (d) of the Code had application, it was a case  to which the proviso to Section 16 of the Code applied,  especially in the context of the fact that at least three of the  defendants were residing within the jurisdiction of the trial  court.  It was, therefore, contended that the decision to return  the plaint was unsustainable in law.  Counsel for the  defendants, on the other hand, contended that in pith and  substance, the plaint was for partition of the properties situate  in village Pataudi in Gurgaon that lay outside the territorial  jurisdiction of the court at Delhi and when that is so, the suit  had to be instituted only in the court having jurisdiction over  the property in question and the High Court was right in

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holding that Section 16(b) and (d) of the Code squarely applied  to the case on hand in the light of the releifs claimed.  Counsel  further submitted that the proviso to Section 16 of the Code  had no application, since this was not a case where mere  personal obedience to the decree would result in an effective  decree.  He further pointed out that Section 20 of the Code will  have no application in a case where Section 16 squarely  applies, since Section 20 was only a residuary provision.  He  ultimately submitted that the High Court has understood the  plaint in a particular manner and since an effective decree for  partition, which is the main relief claimed in the plaint, could  more conveniently be passed by the court having jurisdiction  over the properties in question, it was not a fit case where this  Court ought to exercise its jurisdiction under Article 136 of the  Constitution of India, since having the suit tried at Delhi  would only create complications and prolong the proceedings,  even assuming that this Court saw some merit in the  contention that the first part of prayer (a) might come within  the purview of the court at Delhi.  He therefore submitted that  no interference be made with the order now passed.

10.             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.  In Messrs Moolji Jaitha & Co. Vs. The  Khandesh Spinning & Weaving Mills Co. Ltd. [A.I.R. 1950  Federal Court 83], the Federal Court observed that: "The nature of the suit and its purpose have to  be determined by reading the plaint as a  whole."

It was further observed: "The inclusion or absence of a prayer is not  decisive of the true nature of the suit, nor is  the order in which the prayers are arrayed in  the plaint.  The substance or object of the suit  has to be gathered from the averments made  in the plaint and on which the reliefs asked in  the prayers are based."

It was further observed: "It must be borne in mind that the function of  a pleading is only to state material facts and it  is for the court to determine the legal result of  those facts and to mould the relief in  accordance with that result."

This position was reiterated by this Court in T.  Arivandandam Vs. T.V. Satyapal & Anr. [(1978) 1 S.C.R.  742] by stating that what was called for was a meaningful  ---  not formal --- reading of the plaint and any illusion created by  clever drafting of the plaint should be buried then and there.   In Official Trustee, West Bengal & Ors. Vs. Sachindra Nath  Chatterjee & Anr. [(1969) 3 S.C.R. 92], this Court approving  the statement of the law by Mukherjee Acting Chief Justice in  Hirday Nath Roy Vs. Ramchandra Barna Sarma, [I.L.R. 48  Calcutta 138 F.B.] held: "Before a court can be held to have jurisdiction  to decide a particular matter it must not only  have jurisdiction to try the suit brought but  must also have the authority to pass the  orders sought for. It is not sufficient that it has  some jurisdiction in relation to the subject-

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matter of the suit.  Its jurisdiction must  include the power to hear and decide the  questions at issue, the authority to hear and  decide the particular controversy that has  arisen between the parties."

11.             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.  

12.             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.  

13.             Thus, on the whole, we are satisfied that the trial  court was right in returning the plaint to the plaintiff for being  presented to the proper court.  We therefore affirm the order  returning the plaint and dismiss this appeal.  In the

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circumstances, we make no order as to costs.