CASE COMMENT

SHIVNARAYAN (D) BY LRS V MANIKLAL (D) THR.

LRS. AND OTHERS

SUBJECT:
CPC AND LAW OF LIMITATION
SUBMITTED TO:
ASHWINI KUMAR PENDALYA

SUBMITTED BY:
ASHISH K JAMES
2017-5LLB-72
BA.LLB (HONS.), SEMESTER V, YEAR III

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Contents
Background ................................................................................................................................ 2
Judgment Delivered ................................................................................................................... 2
Sections referred to: ............................................................................................................... 2
Privy council judgments: ....................................................................................................... 3
High Courts too have affirmed such a view: ......................................................................... 3
Holding of the Supreme Court w.r.t. Section 17.................................................................... 4
Analysis...................................................................................................................................... 4
Conclusion ................................................................................................................................. 5

Background
Shivnarayan (D) by Lrs v Maniklal (D) Thr. Lrs. And Others1 was decided on 6 February
2019 in the Supreme Court of India and the judgment was given by the Hon’ble Justice
Ashok Bhushan. It had arisen from an appeal to a Madhya Pradesh High Court judgment
which had upheld the findings of a district court.
The case pertained to two specific properties: a plot in Indore, Madhya Pradesh and a
building in Mumbai, Maharashtra. The plaintiffs asked for the declaration of the sale deed of
one of the former and the transfer documents of another to be null and void. Further, they
asked for the suit property to be declared Joint Family Property and for the declaration of a
will concerning the aforementioned properties.
The defendants pled that there had been a misjoinder as there were two separate properties
involved in two separate jurisdictions with no overlap. Further, they pled that the causes of
action were different.
The High Court had held that there indeed had been a misjoinder, holding that Section 17 of
the Code of Civil Procedure did not envision the filing of a single suit for separate properties
in separate jurisdictions. The Supreme Court, while reversing this finding and making highly
consequential holdings on how Section 17 is to be interpreted, upheld the High Court’s
decision to dismiss the appeal on other grounds: that there were three sets of defendants in
this case, against each of whom the plaintiff had a different cause of action.

Judgment Delivered
Sections referred to:
Section 16 mandates that a suit is to be instituted “where subject matter situate.” Clause (b)
specifically refers to the “partition of immovable property.” In the present case, there were

1
2019 SCCOnline SC 136

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two immovable properties of which partition was sought. Section 17 confers jurisdiction to a
court on property which is in the jurisdiction of another court, provided a part of it is in the
jurisdiction of that court. The question that arises in this case concerning the same is whether
multiple properties which constitute the Hindu Joint Family property can be held to fall
within the meaning of Section 17, causing a court which has jurisdiction over one of the
constituent properties to have jurisdiction over those properties that fall in the jurisdiction of
another court as well.
The Court in this case referred to Section 13 of the General Clauses Act, which states that
“any singular term shall include plural.” The appellants argued that Section 17 of the CPC –
which refers to “property” in the singular – should be interpreted in light of this, and the court
accepted the same.
Section 39(1)(c) of the CPC was referred to for the purpose of deciphering legislative intent.
Section 38 and 39 refer to instances where one court sends a case to another for execution of
its judgment, one of which – as reflected in Section 39(1)(c), is when the jurisdiction of the
court passing the judgment does not extend to the jurisdiction over the location where it is to
be executed. This reinforces the notion that Section 17 could be used to pass judgments
which are to be executed well outside the jurisdiction of the Court passing the judgment.
A number of cases were relied upon to arrive at the judgment:

Privy council judgments:

In Nilkanth Balwant Natu v Vidya Narasinh Bharathi Swami,2 Section 17 of the CPC was
considered. The properties, with respect to which relief was sought, were located in Satara,
Belgaum and Kolhapur. The Privy Council ruled that the jurisdiction could be assumed
despite the lower court having had no jurisdiction for a suit pertaining to Kolhapur.
In Nrisingha Charan Nandy Choudhry v. Rajniti Prasad Singh,3 a similar set of facts was
given a similar ruling, wherein mortgage lands were in the Sonthal Parganas, State of Bihar
and also the Haya district of Bihar. The Council held that the suit could be instituted in any of
the courts within the local limits of whose jurisdiction any portion of the property in question
is situated.

High Courts too have affirmed such a view:

In Kubra Jan v Ram Bali,4 the property in question was situated in the district of Bareilly as
well as in the district of Bara Banki in Oudh. The court in this case looked into the angle of
the intention of the appellant in filing the suit in a court which does not have original
jurisdiction over the locations where some of the properties in question were located. Noting
that there had been neither allegation nor intention to defeat the purposes of the CPC by
trying to take away jurisdiction from any court, the court held that conferring jurisdiction in
the instant manner was valid. No act of the parties could take away the jurisdiction of a court
in the absence of any provision in law to the contrary.

2
AIR 1930 PC 188
3
AIR 1936 PC 189
4
(1908) ILR 30 All. 560

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The Supreme Court contemplated two limitations to the holding that Section 17 could be
interpreted such that a suit concerning multiple properties could be instituted in the same
court, with some of the properties falling in an external jurisdiction:
It referred to Rajendra Kumar Bose v Brojendra Kumar Bose,5 in which different portions of
the family property were situated in different jurisdictions. It was noted in this case that
separate suits could be allowed for separate portions of the family property when different
substantive or adjective laws are in force in different courts. The same is owing to the
separate legislative jurisdictions where the laws of partition enacted or practiced by custom
could be different from each other.
It held that each of the properties in the separate jurisdictions has to have the same cause of
action. To support this argument, a Privy Council judgment called Sardar Nisar Ali Khan v
Mohammad Ali6 Khan was relied upon.

Holding of the Supreme Court w.r.t. Section 17

Finally, the Supreme Court held concerning Section 17 that it was part of the same statutory
scheme as Section 16, the latter providing the general principle and the former providing an
exception. The expression “any portion of the property” was to be read as inclusive of
“properties” and as referring to one or more properties in different jurisdictions of separate
courts or as portion of multiple properties located in the jurisdiction of different courts. A suit
may be instituted in any court with jurisdiction over a portion of any of the properties in
question. Such a suit may arise only when there is a shared cause of action for all of said
properties.

Analysis
Section 17 of the CPC is intended to reduce multiplicity of suits and is for the benefit of
suitors.7 Such a purpose, however, is not served if, under a single cause of action, multiple
properties are to be brought into issue during the institution of a suit. The holding with
respect to the same in the present judgment, hence, is one that will prove to aid in the
convenience of suitors in similar matters.
It may, however, create the possibility of causing great inconvenience to respondents as one
or more of them may be forced to deal with a suit being decided in a jurisdiction far away
from their own. A similar concern was examined in another context – that of Section
17(2)(b), in the case of Sonic Surgical v National Insurance Co. Ltd,8 wherein it was held that
“branch office” was to mean only that branch office with respect to which an offence has
been alleged to have taken place. The division bench had noted that allowing suits in any
place where the respondent company would have a branch office would have absurd results.
Despite the company having a corporate presence in each of its branch offices, for the sake of
efficiency and convenience, it had been held thus. A similar situation can be imagined in the
case of a Hindu Joint Family partition, wherein the plaintiff may file a suit for partition in an

5
(1922) 37 C.L.J 191.
6
AIR 1932 PC 172
7
P.147, C.K. TAKWANI
8
(2010) 1 SCC 135

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obscure jurisdiction containing only minuscule part of the joint family property, causing great
inconvenience to the rest of the members of the Hindu Joint Family.
The holding with respect to Section 17 in this case, therefore is not sensitive to the size and
distribution of the constituent properties of the “property” with the joint cause of action. This
has generally been the approach of the Supreme Court. For example, in Madhao v Madhav,9
there was a small property that was a part of the subject matter dispute. A suit was filed
where it was situated – in Nagpur. Most of the parties to the agreement in question had been
residing in another place. Yet, a division bench held that the Civil Judge at Nagpur had
jurisdiction to entertain the application. Ignoring this factor may cause suitors to take
advantage of the fact that the law allows them to inconvenience their respondents in
contextually insignificant locations. While the reading of “property” as being inclusive of its
plural form in light of Section 13 of the General Clauses Act is a welcome step, the Court
should also examine whether, firstly, a situation as described now is desirable, and secondly,
if any safeguards against the same, if the answer to the previous question is in the affirmative,
can be worked out to increase the efficiency of courts, the amount of justice done and the
amount of inconvenience avoided.
While the plaintiff is the master of the suit,10 it must be kept in mind that there is a
presumption of innocence that favours the respondent. It is perfectly possible for procedural
requirements to cause unnecessary expenses and waste the time of the respondents, and
courts, when interpreting the law, may do well to be sensitive to the same. A solution in this
case, thus, could be to also take the respondents’ perspective into account. This may result in
measures like requiring that a substantial number or portion of the suit properties should be in
the jurisdiction of the court in which the suit is filed.

Conclusion
While the case made influential pronouncements on the way Section 17 of the CPC is to be
interpreted, it was not the ratio decidendi of the case. The appeal to proceed with the joinder
was finally dismissed on grounds of not having the same cause of action. Even had it not
been for the thoughts given to the interpretation of Section 17 of the CPC by the learned
judge, the joinder would have been hit by this reason. Hence, it remains to be seen how much
binding value courts give to the case. Given that an interpretation of “property” to include
“properties” is advantageous to an efficient resolution of suits for partition and the like, one
would hope that it is taken forward, while also accounting for the concerns raised in the
analysis and developing the law on the matter further in the course of Common Law.

9
(1988) 3 SCC 511
10
M.P. Venkatachalam v Govindam, C.M.P.No.5789 of 2006

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