Delhi High Court - Orders
Rajesh Kapoor Through His Legal ... vs 1. Kailash Rani Kapoor W/O Khalid Sultan ... on 29 August, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 537/2012 & I.A. 4066/2012
RAJESH KAPOOR
Through his Legal Representatives
(i) RANI KAPOOR
W/o Late Sh. Rajesh Kapoor,
R/o C-2/758, Palam Vihar,
Gurgaon - 122 017, Haryana
(ii) YAMINI KAPOOR
D/o Late Sh. Rajesh Kapoor,
R/o C-2/758, Palam Vihar,
Gurgaon -122 017, Haryana
(iii) VERAJ KAPOOR
S/o Late Sh.Rajesh Kapoor,
R/o C-2/758, Palam Vihar,
Gurgaon - 122 017, Haryana ..... Plaintiffs
Through: Ms. Shobha Ramamoorthy, Mr. Shilp
Vinod, Mr. M.A. Karthik & Ms.
Ritika Rao, Advocates.
versus
1. KAILASH RANI KAPOOR
W/o Khalid Sultan Temori,
20 Faggs Road, Feltham,
Middx T.W. - 140, LG.
United Kingdom
2. SMT. SAVITA MEHRA
W/o Rakesh Mehra,
44, West Bridge Road,
Porter Square,
Bear Delware - 19701, USA
Signature Not Verified
Digitally Signed
By:SAHIL SHARMA
Signing Date:11.10.2022
11:45:07
3. SMT. MAULI KAPOOR
Widow of Sh. Satish Kapoor,
R/o 134-B, Pocket-A,
Sukhdev Vihar, New Delhi
4. MR. ADARSH KAPOOR
S/o Sh. Satish Kapoor
R/o 134-B, Pocket-A,
Sukhdev Vihar, New Delhi
5. MS. ANURADHA KAPOOR
D/o Sh. Satish Kapoor,
R/o 134-B, Pocket-A,
Sukhdev Vihar, New Delhi
6. THE MANAGER,
State Bank of India,
Siddhartha Extension Branch
New Delhi
7. THE MANAGER
Central Bank of India,
Chandnl Chowk Branch
Delhi
8. THE MANAGER
Canara Bank,
Maharani Bagh,
Near NAFED, New Delhi
9. MR. SATISH KUMAR GUPTA
622-A/5, Govind Puri
New Delhi ..... Defendants
Through: Mr. Vivek B. Saharya, Advocates for
D-2 & 3.
Signature Not Verified
Digitally Signed
By:SAHIL SHARMA
Signing Date:11.10.2022
11:45:07
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 29.08.2022 I.A. 4866/2020 (U/O VII Rule 10 r/w Order VII Rule 11 and Section 151 of CPC, 1908)
1. The present application has been filed under order VII Rule 10 read with Order VII Rule 11 and Section 151 of the Code of Civil Procedure, 1908 filed on behalf of the defendant Nos. 2 and 3 seeking return/rejection of the present plaint.
2. It is submitted in the application that the Suit for Partition, Recovery and Rendition of Accounts has been filed on behalf of the plaintiff against the defendants relating to properties, which are the subject matter of the present Suit, are as under:
―(a) H.No.1118-A; C-2 Palam Vihar Gurgaon Haryana, (in the name of Kavita Roha /Defendant No.2).
(b) H. No. C-1/637, Palam Vihar Gurgaon Haryana, (in the name of Savita Mehra/Defendant No.3).
(c) Flat No.206-A, Pocket C Sidhartha Extension New Delhi - 14 (in the name of Savita Mehra/Defendant No.3).
(d) H. No. C-2/758, Palam Vihar Gurgaon Haryana, (in the name of Shanti Prakash Kapoor and Defendant No.1 e.g. Smt. Kailash Rani Kapoor).
(e) An Industrial Plot admeasuring 225 sq. yards bearing No.622A, Gali No.5-A, Gobind Puri, Kalka Ji New Delhi (Defendant No.10 is tenant in the said property).
(f) Flat No.196-D, Pocket C, Sidhartha Extension New Delhi
14. (in the name of Kailash Rani Kapoor).‖
3. The defendant No. 2 had filed a Written Statement which was adopted by defendant No.3. During the pendency of the Suit, this Court vide Order Signature Not Verified Digitally Signed By:SAHIL SHARMA Signing Date:11.10.2022 11:45:07 dated 18th January, 2017 observed as under:
―The above captioned suit has been filed for partition of the properties as are listed in paragraph 8 of the plaint. In so far as the property bearing house No. CI-637, Palam Vihar, Gurgaon, Haryana is concerned, the same was not in the name of the parents of the plaintiff and by an order dated 22.09.2016, it was found that the said property was purchased by defendant no.3 from the funds obtained from her husband as well as her sister-in-law. The said property never belonged to the father of the plaintiff.
Insofar as the other properties (other than house No. C2-758, Palam Vihar, Gurgaon, Haryana) listed in the plaint are concerned, it is an admitted case that the same have been sold. The only property that remains for consideration is the house bearing No. C2-758, Palam Vihar, Gurgaon, Haryana, which was in the name of the deceased parents of the plaintiff, defendant no. 2 and 3. The learned counsel for the plaintiff states that the parents-Late Shanti Prakash Kapoor and Late Kailash Rani Kapoor - died intestate. The learned counsel for the defendants states that in the written statement filed by defendant no.3, it is claimed that Late Shanti Prakash Kapoor had bequeathed the suit property to defendant No.3 by a registered Will.
List on 27.07.2017, for further consideration on whether the suit is maintainable in the present form.
Interim orders to continue in respect of the property No. C2-758, Palam Vihar, Gurgaon, Haryana.‖
4. It is submitted that the plaintiff filed a Review Application under Order 47 Rule 1 read with Section 151 of CPC, 1908 bearing Review Petition No. 301/2018 against the Order dated 18th January, 2017, but the same was not pressed and subsequently withdrawn by the plaintiff on 05 th December, 2018. Therefore, the observations made in the Order dated 18th January, 2017 have become final according to which the present Suit is only pertaining to Property bearing No. C2-758, Palam Vihar, Gurgaon, Haryana, Signature Not Verified Digitally Signed By:SAHIL SHARMA Signing Date:11.10.2022 11:45:07 since the property is located outside the jurisdiction of Delhi, this Court has no territorial jurisdiction to entertain the present Suit which is liable to be returned to be filed in the Court having appropriate jurisdiction.
5. Submissions heard.
6. The basic question in respect of suit for partition is whether the suit in respect of the subject property located in Gurgaon is maintainable in Delhi. In this context, it would be relevant to reproduce section 16 of the CPC. Section 16 of the CPC states as follows:
"16. Suits to be instituted where subject-matter situate.-- Subject to the pecuniary or other limitations prescribed by any law, suits--
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.Signature Not Verified Digitally Signed By:SAHIL SHARMA Signing Date:11.10.2022 11:45:07
Explanation.--In this section ―property‖ means property situate in India.‖
7. In Rajiv Seth vs. Daya Kishan Mehra (2005) 84 DRJ 75, this Court had observed that suit for partition in respect of estate of deceased including the challenge to the Will would not be maintainable in Delhi if no immovable property is located in Delhi.
8. In Sardar Avtar Singh & Anr. Vs. Baljeet Singh 1995 SCC Online Allah. 184 , it was explained that the general rule in regard to the territorial jurisdiction is contained in Section 16. Section 16(b) provides that a suit for partition of immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situated. In Gidhari Lal Surana vs. Mirzamal Aggarwala AIR 1962 Assam 95, the Division Bench of Assam High Court while dealing with the question of jurisdiction of immovable property explained that the general rule is that the Court within the limits of whose jurisdiction the part of cause of action arises can entertain a suit, is not applicable to the suit covered by Section 16, unless it can be shown that the particular case is covered by its proviso. The Section forbids even claims for rent of immovable property by a Court which has no jurisdiction over the immovable property in question.
9. In Sardar Avtar Singh (supra), it was held that the suit for partition of immovable property has to be filed in the Court within the local limits of whose jurisdiction the property is situated as is provided under Section 16(b) of the Code. This provision is not subject to Section 18 to 20. In the suits for partition of immovable property, the Courts where the property is not located cannot be conferred with any jurisdiction merely on the ground that the cause of action arose whole or in part within the jurisdiction of such Signature Not Verified Digitally Signed By:SAHIL SHARMA Signing Date:11.10.2022 11:45:07 Court.
10. The Division Bench of Bombay High Court in Bhagwan Motiram Saraoji (supra), considered this aspect in detail and defined that the Court within the jurisdiction of which the immovable property is located alone would have jurisdiction to entertain the suit for partition to the extent of movable properties. The location of the movables would constitute a part of cause of action and such Court would have jurisdiction to entertain the suit. It was thus, held that if a suit for partition includes both immovable and movable properties and the immovable properties are located outside the jurisdiction of the Court, then the suit for partition in respect of immovable properties has to be returned while the suit for partition in respect of movable properties may be continued in the said Court. The logic for holding so was explained by observing that the jurisdiction in respect of immovable property is not exercised in personam but in relation to the subject matter of the suit. In so far as the movables are concerned, the jurisdiction is in personam which has three different aspects, which are:
(i) residence of the defendant;
(ii) the place of business of the defendant; and
(iii) where the defendant personally works for gain.
11. All these aspects emphasize the jurisdiction of the Court in personam.
12. In the present case, admittedly, the Suit for Partition survived only in respect of one property which is situated in Property bearing No. C2-758, Palam Vihar, Gurgaon, Haryana. Since, the immovable property in respect of which the present Suit has been filed is located in Gurgram, this Court has no territorial jurisdiction to entertain the present Suit, which is hereby returned to be filed in the Court of appropriate jurisdiction. Therefore, the Signature Not Verified Digitally Signed By:SAHIL SHARMA Signing Date:11.10.2022 11:45:07 suit and pending applications, if any, are accordingly disposed of.
NEENA BANSAL KRISHNA, J AUGUST 29, 2022 S.Sharma Signature Not Verified Digitally Signed By:SAHIL SHARMA Signing Date:11.10.2022 11:45:07