S.17 CPC | Partition Suit For Different Properties Can Be Filed In Any Jurisdictional Court If Cause Of Action Is Same: Kerala High Court
The Kerala High Court has said that under Section 17 CPC if immovable property is situated within the jurisdiction of different Courts, then a partition suit can be instituted in any of the Courts within whose jurisdiction any portion of the property is situated.
The Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar examined Sections 16 and 17 CPC as well as the Apex Court decision in Shivnarayan (D) By Lrs. v. Maniklal (D) Thr. Lrs. and others.
It then held:
“Section 16 stipulates that a suit for partition is to be filed in the Court within whose territorial jurisdiction the property sought to be partitioned is situated. In terms of Section 17 of the Code of Civil Procedure, if immovable property is situated within the jurisdiction of different Courts, suit can be instituted in any of the Courts within whose jurisdiction any portion of the property is situated… the mere existence of one item out of several items of properties or even a portion of any of the items, within the territorial limits, would be sufficient to confer jurisdiction on the Court.”
The court referred to Supreme Court's decision in Shivnarayan where apex court had held that suit in respect to more than one property situated in jurisdiction of different courts can be instituted in a court within local limits of jurisdiction where one or more properties are situated provided suit is based on same cause of action with respect to the properties situated in jurisdiction of different courts.
The Court was considering an appeal challenging the preliminary decree in a suit for partition. The decree was passed in respect of several properties but the challenge in the appeal was only with respect to one of the properties, a residential flat in Mumbai.
The legal heirs of the late Velayudhan and his late wife, the owners of the property, had sought the partition. The trial court passed preliminary decree declaring that the plaintiffs together and each of the defendants were entitled to 1/6 shares each. This decree was challenged before the High Court on the ground that trial court had no territorial jurisdiction to entertain the suit in respect of the property lying in Mumbai.
The appellant before the Court claimed to be a resident of Mumbai and he argued that he ould be best entitled to and benefitted by the allotment of the apartment. Moreover, he had taken steps and expended amounts to get the apartment registered in his name.
Further, it was contended that the trial court could not entertain the suit since Section 17 CPC would not applicable in view of Section 120 CPC, which exempts application of Section 17 CPC to High Courts having original civil jurisdiction. He relied on Rule 12 of the Bombay High Court Rules, which confers original jurisdiction to immovable properties situated within the limits of the High Court.
The appellant submitted that the late owner of the property had transferred his shares to a co-operative society, who is arrayed as a defendant and therefore, the society is the absolute owner of the property, which would not be available for partition. He also contended that the suit is barred under Sections 69 and 100 of the Kerala Co-operative Societies Act.
After hearing the parties, the Court opined that the trial court had jurisdiction to entertain the suit since almost all of the properties sought to be partitioned was lying within the territorial jurisdiction of the trial court. It was held that even if only a portion of one of the properties lie within the jurisdiction of a court, that court can entertain suit for partition of properties, which are not in its jurisdiction.
The Court was of the view that the reliance placed by the appellant on the aforementioned decision was incorrect since in that case, the suit was found to be not maintainable as it was against different set of defendants with different causes of action regarding properties situated at different places whereas in the present case, the suit is for partition and the parties are the legal heirs of the property owners.
Addressing the contention based on Section 120 CPC, the Court remarked that the provision only applies to suits before the High Court. It also said that the contention regarding lack of jurisdiction cannot be raised in appellate stage when it was not raised before the trial court in view of the prohibition under Section 21(1) of the CPC.
“Section 99 of the Code of Civil Procedure provides that a decree shall not be reversed in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in the proceedings of suit which does not affect the merits of the case or jurisdiction of the court. As is evident from Section 21 (1) referred to above, the term “jurisdiction” occurring in Section 99 does not include territorial jurisdiction,” the Court added.
Next, addressing the issue regarding nomination of 2nd defendant by late Velayudhan, the Court placed reliance on Indrani Wahi v. Registrar of Coop. Societies and others [(2016) 6 SCC 440] and held that nomination does not affect the right of legal heirs even if the property was transferred by the 2nd defendant society based on the nomination.
The Court also rejected the contention regarding bar on maintainable based on the provisions of the Co-operative Societies Act. After examining Sections 2(i), 69 and 100, the Court observed:
“Section 100 bars the jurisdiction of Civil Courts in respect of matters for which provision is made in the Act. Section 69 provides mechanism for settlement of disputes in a Society or between its members or persons claiming through deceased members. What is a “dispute” within the scope of the Act is explained by the definition given in Section 2(i) of the Societies Act. As per the definition, to be a “dispute” within the purview of the Co-operative Societies Act, it must be a matter touching the business, constitution, establishments or management of the Society…The dispute is strictly between the legal heirs with regard to the entitlement; it relates to their inter se title. It has nothing to do with the business of the Society. It is not a dispute falling within the definition of “dispute” under the Co-operative Societies Act.”
With respect to the appellant's plea that he would be best entitled to receive the property in Mumbai, the Court was of the view that that the same being a plea of equity would be best decided by the trial court in the final decree proceedings.
Thus, it dismissed the appeal and refused to interfere with the decree of the trial court.
Case No: RFA No. 149 of 2016
Case Title: P.V. Surendran v. Kavitha Rajendran and Ors.
Citation: 2026 LiveLaw (Ker) 299
Counsel for the appellant: B. Krishnan, R. Parthasarathy
Counsel for the respondents: G. Sreekumar (Chelur)