Holding

The suit is essentially for partition of immovable property outside Delhi; therefore, under Section 16(b) and (d) of the CPC the Delhi Court lacks jurisdiction, and the proviso to Section 16 and Section 20 are inapplicable.

Summary

Begum Sahiba Sultan, the daughter of the deceased, filed a suit in the Delhi High Court seeking a declaration that an alleged oral will made by her mother was never made, a declaration that a sale deed was void, and a decree of partition of immovable properties situated in Village Pataudi, Gurgaon, Haryana. The Delhi Court held that the suit’s dominant relief was the partition of land located outside its territorial jurisdiction, making the suit fall within the ambit of Section 16(b) and (d) of the Code of Civil Procedure, 1908. The Court found that the proviso to Section 16 and Section 20 could not be invoked even though three defendants resided in Delhi, as the reliefs could not be effected by personal obedience. Consequently, the plaint was returned to the plaintiff for filing in the appropriate court having jurisdiction over the property. The Supreme Court affirmed this view, dismissing the appeal.

Issues considered

The Delhi High Court’s jurisdiction to entertain a suit for partition of immovable property situated outside its territorial limits, despite a claim that part of the cause of action (declaration of an oral will) arose in Delhi.
Whether Section 16(b) and (d) of the CPC apply, and if the proviso to Section 16 or Section 20 can be invoked because some defendants reside in Delhi.
The nature of the negative declaration of the oral will – whether it is a substantive relief or merely consequential to the partition claim.

Legislation cited

Code of Civil Procedure, 1908s. 16, s. 20, s. Order VII Rule 10

Subjects

jurisdictioncivil procedureSection 16 CPCSection 20 CPCpartition suitoral willnegative declarationproperty lawpersonal lawDelhi High Courtappeal

Judgment

._
.A BEGUM SAHIBA SULTAN
v. ~
NAWAB MOHD. MANSUR ALI KHAN AND ORS.

APRIL 12, 2007

B [TARUN CHATTERJEE AND P.K. BALASUBRAMANYAN, JJ.]

Code of Civil Procedure, 1908; 0. Vii R.10; Ss. 16 and 20: ~

Suit for partition-Property lay beyond jurisdiction of trial Court-
c Trial Court returning the plaint to plaintiff for filing in the Court of
appropriate jurisdiction-Affirmed by the High Court- On appeal, Held: At
the stage of consideration of the return of the plaint in terms of provisions
under 0. VII R. I 0 CPC, the plaint and the averment therein must be looked
into-It is also necessary to read the plaint in a meaning/ii/ manner to
D ascertain the real intention of the plaintiff-The suit in question is essentially
for the relief ofpartition and declaration in respect of the properties situated
in a village at Gurgaon, which is outside the jurisdiction of the High Court
of Delhi-Besides, negative declaration sought for by the plaintiff appears
',..
to be totally superfluous and unnecessary-In the facts and circumstances of
the case, the present suit could not be brought within the purview. of the
E proviso to S.16 of the Code or entertained relying on S.20 of the Code on
the basis that three out of the five defendants are residing within the
jurisdiction of the Court at Delhi.

Appellant filed a civil suit before the High Court of Delhi praying for
declaration of the oral Will allegedly made by her mother was never made
F and to declare the sale deed purported to have been executed by defendant No.2
in favour of defendant Nos. 4 and 5 null and void in respect of certain
properties in question and to pass a decree of partition in terms of Islamic
Personal Law. The properties in question situated at Gurgaon, District
Haryana, are outside the jurisdiction of the High Court of Delhi in which the
G suit was instituted. Single Judge of the High Court holding that since the
properties in question situated outside the jurisdiction of the Court at Delhi,
the Court at Delhi had no jurisdiction to entertain the suit. Therefore, he (
directed return of the plaint to appellant for presenting it to the Court having
jurisdiction over the properties in question. Aggrieved, the appellant filed an ~

H 36
BEGUM SAHIBA SULT AN '· NAWAB MOHD. MANSUR ALI KHAN
37
appeal, which was dismissed by the Division Bench of the High Court. Hence A
the present appeal.

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
was never made and the cause of action for that relief wholly arose in Delhi
within the jurisdiction of the trial court; that the other reliefs of partition, B
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; that even if Section 16(a) and (d)
C.P.C. had application, it was a case to which the proviso to Section 16 of the C
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, therefore,
the decision to return the plaint was unsustainable in law.

Respondents submitted that in pith and substance, the plaint was for
partition of the properties situated in Village Pataudi in Gurgaon that lay D
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 reliefs claimed; that the proviso to Section 16 of the Code has no
application, since this was not a case where mere personal obedience to the E
decree would result in an effective decree; 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; and 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 F
_1 passed by the court having jurisdiction over the properties in question; and
that it was not a fit case where this Court ought to exercise its jurisdiction
under Article 136 of the Constitution oflndia.

Dismissing the appeal, the Court
G
HELD: 1.1. There is no doubt that at the stage of consideration of the
return of the plaint under Order VII Rule I 0 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. [Para 10) [43-CJ
H
38 SUPREME COURT REPORTS [2007] 5 S.C.R.
•·
A Messrs Moolji Jaitha & Co. v. The Khandesh Spinning & Weaving Mills
Co. Ltd, A.I.R. (1950) Federal Court 83; T. Arivandandam v. T. V. Satyapal & I
Anr., (1978) 1 S.C.R. 742; Official Trustee, West Bengal & Ors. v. Sachindra ·
Nath Chatterjee & Anr., (1969) 3 S.C.R. 92 and Hirday Nath Roy v.
Ramchandra Barna Sarma, I.L.R. 48 Calcutta 138 F.B., relied on.

B 1.2. 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 the 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
C deceased mother and presumably relied on by defendants 1 and 2 was never
made. But this Court has failed 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 he is also one of the heirs of the
deceased mother. If in such a suit, the defendants propound any oral Will as
D 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 be totally superfluous
and unnecessary in the circumstances of the case. (Para 11 J (44-C-E]

1.3. It is not the case of the plaintiff that an oral Will was made at Delhi.
E It is the case of the plaintiffthat 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 of the High Court have come to the
conclusion that in substance the suit was one relating to immovable property
p situated 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.
This Court is inclined to agree with the said understanding of the plaint by
the trial judge and Division Bench of the High Court, on a reading of the
plaint as a whole. (Para 11) (44-E-GJ

G 1.4. On a reading of the plaint as a whole, it is clear that the suit is one
which comes within the purview of Section 16(b) and (d) of the Code. The relief
of partition, accounting and declaration of invalidity of the sale executed in
respect of immovable property situated in Village Pataudi, Gurgaon, could
not entirely be obtained by a personal obedience to the decree by the defendants
H in the suit. Applying the test laid down therein, it is clear that the present
BEGUM SAHIBA SULT AN '· NAWAB MOHD. MANSUR ALI KHAN [BALASUBRAMANY AN.I.] 39

suit could not be brought within the purview of the proviso to Section 16 of A
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. Hence, the trial Court was right in returning the plaint to the
plaintiff for being presented to the proper Court.
[Para 12 and 13) [44-H; 45-B-D) B
Harshad Chiman Lal Modi v. DLF Universal ltd. & Anr., (2005) 7
S.C.C. 791, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1921 of2007.

From the Judgment and Order dated 11.11.2005 of the High Court of C
Delhi at New Delhi in F.A.0. (OS) No. 363 of2005.

Bahar V. Barqi, Maroof Ahmed and Goodwill Indeevar for the Appellant.

Riteen Rai, Meera Mathur, Buzefa Ahmadi, Taruna Singh, Dr. Nafis A.
Siddiqui, Dinesh Chander Yadav, A.S. Rishi and Dr. Kailash Chand for the D
Respondents.

The Judgment of the Court was delivered by

P.K. BALASUBRAMANYAN, J. I. Leave granted.
E
2. The appellant, hereinafter referred to as the plaintiff, is the daughter
ofNawab Iftikar Ali Khan and Mehar Taj Sajeda Sultan. Defendants l and 2,
who are respondents I and 2 herein, are her siblings. Defendant No.3 is her
niece, being the daughter of her brother, Defendant No. I. Defendant Nos.4
and 5 are assignees from Defendant No.2.
F
.--{ 3. The plaintiff filed a suit C.S. (OS) No.495 of2004 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 G
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. 114 of total
properties/estates, out of 180 Kanals and 12 Morlas situated at Village H
40 SUPREME COURT REPORTS (2007] 5 S.C.R.

A 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;
B
(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;

C (e) Pass au 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
D alienation in respect of which was sought to be declared void, were admittedly
situated 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
E 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. I 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
F subsists.

That Defendant No. I 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
G 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 tjle jurisdiction of Delhi
court and the declarations sought for are also related to the said properties
H
BEGUM SAHIBA SULTAN v. NAWAB MOHD. MANSUR ALI KHAN [BALASUBRAMANYAN, J.] 41
and in the light of Section l 6(b )and (d) of the Code of Civil Procedure (for A
\ 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 situated at Village B
Pataudi, 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."
c
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
D
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 E
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 F
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 G
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 jufisdiction. An offer
made to the plaintiff to pass an order in terms of Rule 1OA of Order VII of
the Code was not accepted by the plaintiff. Thus, the plaint was returned to H
42 SUPREME COURT REPORTS (2007] 5 S.C.R.

A the plaintiff for being presented to the proper court.
f
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
B 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
C 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 I. l.1995
D 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 ifthe reliefregarding the declaration of Will was
granted to the plaintiff and consequently, those reliefs could be perceived to
E 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
F 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 situated 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
G squarely applied to the case on hand in the light of the reliefs 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
H applies, since Section 20 was only a residuary provision. He ultimately
BEGUM SAHIBA SULTAN v. NAWAB MOHD. MANSUR ALI KHAN [BALASUBRAMANYAN, I.] 43
submitted that the High Court has understood the plaint in a particular A
~ 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
B
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 I 0 of the Code, what is to be looked into
c
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. v. The Khandesh Spinning &
Weaving Mills Co. Ltd, A.LR. (1950) Federal Court 83], the Federal Court
observed that: D
"The nature of the suit and its purpose have to be determined by
reading the plaint as a whole."

It was further observed:
E
"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."
F
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."
G
This position was reiterated by this Court in T. Arivandandam v. 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. v. Sachindra Nath Chatterjee & Anr., [1969] 3
S.C.R. 92, this Court approving the statement of the law by Mukherjee Acting H
44 SUPREME COURT REPORTS [2007] 5 S.C.R.

A Chief Justice in Hirday Nath Roy v. Ramchandra Barna Sarma, [I.L.R. 48
Calcutta 138 F.B.] held: f
"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
B 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 i;annot be much
C doubt that the suit is essentially in rrlation to the relief of partition and
declaration in respect of the properties situated 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
D 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
E 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
F 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 situated 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
G 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
H
BEGUM SAHIBA SULTAN v. NAWAB MOHD. MANSUR ALI KHAN [BALASUBRAMANYAN, J.] 45

~ held by this Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. & A
Anr., [2005] 7 S.C.C. 791 that Section 20 of the Code cannot haw application
in view of the opening words of Section 20 "subject to the limitations aforesaid''.
This Court has also held that the proviso to ~ection 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 B
the sale executed in respect of immovable property situated 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 C
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 D
the circumstances, we make no order as to costs.

S.K.S. Appeal dismissed.

-