Parameswari Veluchamy and Others vs T.R. Jayaraman and Others

R. Jayasimha Babu, J.—The appellants are plaintiffs in the suit in C.S.No.1685 of 1994 which suit was filed by them, each one of the three

plaintiffs claiming 1/11 th share in the self acquired properties of their father late Ramasamy Naicker who died in ihe age of 73 in August, 1973, as

also in the properties acquired by his sons subsequent to the death of their father. Defendants are four of their brothers, the son of the deceased

brother and three sisters who had been married prior to the death of their father. The marriage of the three plaintiffs took place in the year 1974

after the demise of their father. The plaintiffs have in their plaint contended that their father was not possessed of any ancestral property and the

partition that had been entered into among the father and his five sons under a registered partition deed dated 2.9.1958 was only sham and was

meant to gel over the Land Ceiling Legislation, They have also contended that gift made to them by their father under gift deed dated 14.1.1970 at

a time when they were minors had not been accepted by them after they attained majority. It is also their further case that the Will of their father

dated 18.2.1973 cannot be genuine, as according to them, their father was ill and would not have excluded the daughters from the disposition of

the property.

All the defendants in the suit as also two of the three plaintiffs reside outside the jurisdiction of this Court. Leave was therefore sought to institute

the suit in this Court against those defendants.

It was asserted at paragraph 14 of the plaint that the cause of action for the suit arose at Madras where three of the 185 properties listed in the

plaint schedule are situated. It was also asserted that the cause of action arose when the plaintiffs demanded their share in the year 1993 and

caused a notice to be issued in the year 1994. It was averred in the plaint that they have no knowledge of the exact extent of the properties

possessed by late Ramasamy Naicker and that they are not in possession of any records from which they can ascertain the details of the assets. It

was their case that immediately after their marriage they, went to their husbands, houses and were only visiting their brothers at Aruppukottai which

is situated several hundred kilometres away from the city of Madras.

All the properties listed in the plaint schedule except items 169, 170 and 171 are situated outside Madras, most of the properties being in

Aruppukottai. The three properties mentioned in SI.No. 169, 170 and 171 are properties in the city of Madras which properties, as seen from the

documents produced by the defendants, had been acquired by two of the brothers and by the widow and sons of the deceased brother long after

the demise of their father. The properties acquired are not whole of the properties mentioned in the plaint schedule but a fractional interest in the

land and construction was put up on those lands. Under the sale deed dated 25.11.1991 one of the defendants Varadarajan purchased

887/15000 shares in a plot of two grounds and 2000 sq. ft. Under a sale deed of 24th February, 1994 the same Varadarajan also bought

1456/10077 shares in a plot measuring two grounds and 1765 sq. ft. as also flat on the third floor of the building put up thereon. Under several

sale deeds dated 5.4.1991 the widow and children of the deceased brother Subbaraj purchased about 93/1500th share in large plot in Madras

city. The consideration paid for the purchase made by Varadurajan was about Rs.6,23,900 and for the purchase made by the family of fate

Subbaraj the consideration was about Rs.5,50,000.

The plaintiff obtained leave ex parts to file a suit on 21.04.1994. After the defendants entered appearance and before they filed their written

statement they applied to the Court to revoke the leave by applications No.753, 786 and 970 of 1997. Those applications having been allowed

and leave granted having been revoked, the plaintiffs have come up in appeal.

The learned single Judge revoked the leave mainly on the ground of consideration of convenience and having regard to the location of the

properties, except three items, being outside Madras; all the defendants being resident outside Madras and documents in relation to the properties

being maintained outside Madras and witnesses who were required to speak in relation to those properties also being persons living outside

Madras, it was proper that the suit be tried by the Court within whose jurisdiction the bulk of the properties are located.

Mr. Ramakrishnan, learned counsel for the appellant submitted that the learned single Judge was in error in looking to the convenience of the

parties while deciding the question of leave. It was submitted that the plaintiffs have questioned the validity of the partition deed of 2.9.1958 as also

the genuineness of the Will of the father dated 18.2.1973 and three of the items in the plaint schedule are in Madras. Counsel contended that these

facts are sufficient to sustain the leave which had been granted ex parte.

The leave which can be sought from this Court and which the Court can grant is under Clause 12 of the tellers Patent which inter alia provides

that the original jurisdiction of this Court extends to suiis of every description in the case of suits for lands or other immovable properties if such

lands or properties are situated within the jurisdiction of this Court and in all other cases, the cause of action shall have arisen either wholly, or, in

case the leave of the Court shall have been first obtained and the cause of action had arisen in part within the local limits of the ordinary original

jurisdiction of this Court, or if the defendant at the time of the commencement of the suit resides or carries on business or personally works for gain

within the limits of this Court''s jurisdiction.

There can be no doubt that this Court has jurisdiction to try any suit in relation to any land which is situated within the jurisdiction of this Court.

No leave of the Court is necessary in such cases. In case where a part of cause of action arises within the jurisdiction of this Court as also in cases

where the defendants do not reside or carry on business or work fur gain within the jurisdiction of this Court leave of the Court is essential. The

grant or refusal of leave is discretionary.

The case of the plaintiffs here is that the properties mentioned by them in the schedule to the plaint are properties which were either owned by

their late father at the time of his demise or had been acquired by their brothers subsequent to his demise with the aid of the properties left behind

by their father. Their specific case was that there was no joint family nucleus. They have questioned the validity of the partition deed of 2.9.1958,

and they have also questioned the validity of the Will of their father of 18.2.1973, in the suit filed by them in the year 1994. It is their own case that

the father had complete freedom to Will away his properties, as the properties, according to the plaintiffs, were not joint family properties. It is

fairly stated by the Counsel for the plaintiffs that the three items situated in Madras were acquired not by their father, but by their brothers and the

family of the deceased brother long after the demise of their father.

The question of accrual to the estate will arise only in case where there is a joint family which owns properties and which property forms the

nucleus in which coparceners have indefinite shares, the shares being carved out at the lime the demand for partition is made and in relation to the

properties owned by the joint family at the time such demand was made. According to the case pleaded by the plaintiffs, the plaintiffs became

entitled to 1/11 th share in the late father''s properties at the time of his demise. That was in August, 1973. The properties were purchased by the

brothers of the plaintiffs nearly 20 years after their father''s demise, during which period all of them were admittedly carrying on business and had

been given the properties by their father in 1958 when he effected a partition and to whom the father also had bequeathed properties in the year

1973. The brothers, who even independent of the partition and the Will, as heirs to their late father, were entitled to share in the father''s

properties. Properties acquired by them prima facie cannot be regarded as coparceners in which the plaintiffs are entitled to claim a share. The

mere fact that the plaintiffs have chosen to include some of the properties subsequently acquired by the brothers in the plaint schedule, therefore,

cannot be regarded as a circumstance which is so strong as to compel the Court to grant leave to the plaintiffs to file a suit in this Court.

If the plaintiffs had brought the suit only in relation to the three items in Madras, as already noticed, question of granting leave would not arise,

but having regard to all the facts of this case it is clear that a mere claim made by them in relation to those properties cannot be made the

foundation on which their claim for a share in all other properties all of which are outside Madras should be tried by this Court. It would be like

trying to make an elephant stand on a pin head.

Mr.Ramakrishnan, in support of his submission that leave ought not to have been revoked in this case invited us to the Court''s decision in the

case of Giridhar A. v. A.Suresh, 1998 (2) LW 308, wherein this Court followed the decision of the Bombay High Court in the case of Shiv

Bhagwan Moti Ram Saraoji Vs. Onkarmal Ishar Dass and Others, , wherein it was observed ""....It is well settled that a suit for partition of

immovable property is a suit for land .....

The construction of Clause 12 has been responsible for more judicial decisions than perhaps than any other clause in the Letters Patent, and many

learned Judges have pointed out the various possible constructions to which the language of Clause 12 lends itself."" This Court in the case of

Giridhar, 1998 (2) LW 308 after referring to the cases cited before the Bench, observed thus :

It thus appears to us that while there can be no controversy that as regards suits for land or immovable property where the whole of land or

immovable property is situated within the ordinary original jurisdiction of the High Court, the High Court can take cognisance of such suits, it is also

well established that even though a part of the land or immovable property is situated within such limits and part outside limits, if leave has been first

obtained, a suit for such land or immovable property can be entertained by the High Court in its ordinary original civil jurisdiction.

Learned counsel also placed reliance on the decision of another Bench of this Court in Bank of Madurai Ltd. Vs. Balaramadass and Brothers

and Others, , wherein it was held that the Madras High Court has full jurisdiction to hear a suit when the defendants resided within its territorial

jurisdiction irrespective of the place of immovable property and the nature of the suit.

Learned counsel for the appellants submitted that while considering the question of grant of leave, the question as to the balance of

convenience is not really germane, as the power to grant leave is a power without limitation, if the requirement that some of the lands in respect of

which partition is sought is located within the jurisdiction of this Court or the part of cause of action arising within this Court''s jurisdiction is

satisfied.

Mr. Subramanian, learned counsel for the respondents on the other hand submitted that the order made by the learned single Judge is a

discretionary order and that it has been made in the sound exercise of discretion. Having regard to all relevant factors and the question of balance

of convenience and having regard to the averments made in the plaint and the fact that the bulk of the properties are situated outside the jurisdiction

of this Court, the discretion of the Court was required to be exercised against rather than in favour of granting leave.

In support of his submission that the balance of convenience is indeed a very relevant factor, Counsel relied on a Division Bench decision of

this Court in Seshagiri Row v. Nawab Asker Jung Aftal Dowlah, ILR 30 Mad. 438. The Bench in that decision considered the scope of Clause 12

and held that ""having regard to the wording of Article 12 it is clear that the fact that the cause of action arises in part within the local limits is not

conclusive and that notwithstanding that the cause of action arises in part within the local limits, the Court may decline to give leave to sue.

As regards the law of this Court, so far we are aware it has never been held that the question of convenience is not a question which may be taken

into consideration in dealing with the applications under Article 12, and we are certainly not prepared to hold that this question should be excluded

from consideration.

Counsel also relied upon the decision of Venkatasubbarao, J. in Amir Bi v. Abdul Rahim Sahib, AIR 1928 Mad. 760, wherein while

considering the question of granting leave in an administration suit it was inter alia observed that ""The Court will not grant leave unless a substantial

portion of cause of action had arisen within the jurisdiction. Supposing all the immovable properties are outside jurisdiction and they represent the

bulk of the estate, that may be a good ground for refusing leave; for, in determining what constitutes cause of action one element is undoubtedly:

Where is the property (movable or immovable) situate?

Counsel lastly relied upon another decision of a Bench of this Court in the case, Tuticorin Alkali Chemicals & Fertilisers Ltd. v. Cochin Silicate

& Glass Industries, 1992 (1) LW 308, wherein the Bench observed inter alia that ""the learned single Judge is, however, right in saying that in all

cases where a part of cause of action has arisen within the jurisdiction of one Court and the other part within the jurisdiction of some other Court,

the relevant question will be the balance of convenience....."" The Division Bench in that case also referred with approval to the case of Seshagiri

Row v. Nawab Askur Jung Aftal, ILR 30 Mad. 438which reference has already been made.

The suit brought by the plaintiffs though it is in part a suit for land situated within the jurisdiction of this Court, is primarily a suit for a share in

the properties which are situated outside the jurisdiction of the Court, all the defendants being residents outside and carrying on business outside

the jurisdiction of this Court. The suit is not similar to one wherein a person entitled to a share in the joint family property can bring a suit in (his

Court for a share in the joint family property by saying that some of the joint family properties are situated within the jurisdiction of this Court.

According to the plaintiffs own case there is no coparcenary properly. !n the plaint there is no averment regarding the properties in Madras

mentioned in the plaint schedule by whom it was acquired, when it was acquired, mode of acquisition, consideration paid therefore etc. No

document in relation to these properties was filed with the plaint. On the other hand the documents produced by the plaintiffs clearly show that

those three items were purchased by some of the defendants nearly two decades after the demise of their father in whose estate the plaintiffs claim

a share.

Moreover, considerations of convenience are very germane while determining the question of grant, refusal or revocation of leave. Almost all

the properties, the documents relating thereto and the witnesses who have knowledge of the same are outside the city of Madras.

We, therefore, do not find any merit in the appeal and the same is liable to be dismissed.

We place on record the submission made by the learned senior counsel for the defendants that his clients have no desire to prolong the suit and

that they are ready to file written statement in the Court which is found to have jurisdiction to try the suit and that they would be ready for trial of

the suit in September, 2001.

The trial Judge had granted three weeks'' time to present the plaint in the proper forum. We now extend that time till the expiry of a period of

thirty days from the date of receipt of a certified copy of this order. The Court, which is found to have jurisdiction to try the suit, shall fix the dale

for the appearance within 30 days from the dale of such presentation and shall direct filing the written statement and thereafter proceed with the

trial expeditiously.

Parties to bear their respective costs.