BEGUM SABIHA SULTAN Vs. NAWAB MOHD. MANSUR ALI KHAN & ORS  INSC
392 (12 April 2007)
TARUN CHATTERJEE & P.K. BALASUBRAMANYAN
CIVIL APPEAL NO. 1921 OF 2007 (Arising out of SLP(C) No.4586 of 2006) P.K.
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
(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
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 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
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 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 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
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.
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.
Chatterjee & Anr. [(1969) 3 S.C.R. 92], this Court approving the
statement of the law by Mukherjee Acting Chief Justice in Calcutta 138 F.B.]
"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- 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 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 circumstances, we make no order as to costs.