Case: Govindlal Bansilal and Anr. Vs Bansilal Motilal. High Court of Bombay (India)

JudgesNorman Macleod, C.J. and Shah, J.
IssueProperty Law
Citation77 IndCas 934
Judgement DateAugust 05, 1921
CourtHigh Court of Bombay (India)

Judgment:

Norman Macleod, C.J.

  1. This is an appeal from the decision of Mr. Justice Pratt dismissing an application by the first defendant in the suit for leave to file an additional written statement. The suit was filed in 1917 by Bansilal Motilal, the father of the first defendant, asking for a declaration that all the properties in the hands of Motilal Shivlal at his death were ancestral joint family properties, and passed on his death by survivorship to the plaintiff and defendants Nos. I to 5 and defendants Nos. 8 and 9, and 1hat all the properties in British India might be partitioned amongst the plaintiff and the other members of the joint family entitled thereto by and under the directions of this Hon'ble Court. Clause 11 of the plaint is as follows:

    The first defendant resides and part of the properties both moveable and Immovable are situate and the cause of action has arisen in Bombay within the jurisdiction of this Hon'ble Court and the plaintiff submits that, with leave granted under Clause 12 of the Letters Patent, this Hon'ble Court will have jurisdiction to try the suit and to order partition of all the joint family properties situate in British India.

  2. Leave was granted under Clause 12 of the Letters Patent.

  3. The first defendant in filing his written statement in Clause 12 said:

    This defendant submits that as the condition precedent to any portion of the joint ancestral properties situate or lying in British India being given to the plaintiff towards his share, he may be ordered to bring into hotchpot all the properties in his possession at Hyderabad and to account for the same. This defendant submits that if either on account of the professed inability of the plaintiff or otherwise the said Hyderabad properties car not be brought into hotchpot the portion of the said joint family properties should be so effected as to allot to the plaintiff and the eighth defendant (should she be held entitled to a share) for their respective shares properties of sufficient value out of those situate and lying at Hyderabad.

  4. A considerable amount of the family properties both moveable aril Immovable are in Hyderabad outside British India, and all attempts to deal with those properties by means of a Receiver, appointed by this Court have not availed the parties, so that at the present mom eat this Court can exercise no control whatever over the properties in Hyderabad. The parties agreed that the Receiver appointed by this High Court of Bombay should file a suit in the Hyderabad Stake asking that be might be entitled to take possession of all the properties of the deceased within the Hyderabad territories and to manage them. That suit was dismissed, and the decision dismissing the suit was affirmed in appeal. The result, therefore, is that at present in regard to the properties in Hyderabad State there is a deadlock. The plaintiff says that is due to tae attitude adopted in Hyderabad, not of the plaintiff himself, but of the authorities, and it is also due to the judicial decision of the Highest Court of Appeal in the State subject to the final decision of the Judicial Committee. The decision of the Court of Appeal was given on the 7th March 1921.

  5. This application was made on the 1st of April 1921. The additional written statement sought to be filed was declared

  6. The application was dismissed by the learned Judge on the ground that when in a suit for land leave is asked for because only part of the land is within local Units, the remaining port on of the land must be within the limits of the Presidency of Bombay, and it would necessarily follow from that, that according to the view taken by the learned Judge, this Court has no jurisdiction to entertain a suit for partition of land outside British India, even though part of the estate is within the local limits of the ordinary original civil jurisdiction.

  7. Now the proper construction of Clause 12 of the Letters Patent has been a constant subject for discussion. On the one hand it has been argued that in a suit for land or other Immovable property, unless the whole of the land or Immovable property is wholly within the jurisdiction, the Court has no jurisdiction to try the case; the other construction is that, if part of the land or Immovable property is situate within the jurisdiction, then in case the leave of the Court shall have been first obtained the Court will have jurisdiction to try the suit. In Balaram Bhaskarji v. Ramchandra Bhaskarji 11 Ind. Dec. 1198 the plaintiff sued for partition of certain property, alleging it to be joint family property, consisting of a house in Bombay and, certain fields at Vavla in the Thana District. It was held that as to Vavla property the Court had no jurisdiction because the leave had not been asked for under Clause 12 of the Letters Patent. Mr. Justice Candy considered the construction of Clause 12 of the Letters Patent. He said (page 925):

    The uniform practice of the three High Courts at Bombay, Calcutta and Madras has apparently been to feed that clause as if it ran as follows...(a) In the case of suits for land or other Immovable property, such land or property shall be situated either wholly, or, in case the leave of the Court shall have been first obtained, in part within the local limits of the ordinary original jurisdiction of the said High Court.... I confess, were the matter...

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