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Yeshvadabai Vs. Janardhan Raghunath Warik - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1450 of 1922
Judge
Reported inAIR1924Bom14; (1923)25BOMLR1172
AppellantYeshvadabai
RespondentJanardhan Raghunath Warik
Excerpt:
amended letters patent, clause 12 - suit for land-suit for maintenance, as charged on immoveable proverty.; a suit to recover maintenance as charged on specific immoveable property is a suit for land within the meaning of clause 12 of the amended letters fasten of the bombay high court.; sundara bai sahiba v. tirumal rao sahib (1909) i.l.r. 33 mad. 131 followed. - .....as in clause 12 of the letters patent. the words actually used are 'the subject-matter of the suit is immoveable property'. the only way in which it was sought to bring the plaintiffs claim to maintenance in that suit under this clause (c) was by suggesting that the maintenance claimed by the plaintiff was 'immoveable property' because of the prayer that it should be charged upon the immoveable property. that was met by the court pointing out that there was no specific charge on that property and such it claim could only ripen into a charge, when the court passed a decree making the maintenance such a charge. so i do not think that that decision really bears on the point at issue. and in regard to the construction which this court has put on the words 'for land' &c.;, the leading.....
Judgment:

Fawcett, J.

1. The plaintiff is the wife of the defendant and she sues him to recover maintenance and also possession of certain stridhan ornaments or the value thereof. In the plaint one of the prayers is that the payment of such sum as the Court may fix for her maintenance may be secured by a charge on the defendant's interest in certain immoveable property in Bombay. The property admittedly is an ancestral house which now has come to the defendant and his brothers. But, on the other hand, the main facts which have given rise to this suit did not take place within the local limits of the ordinary original jurisdiction of this Court. The defendant, during the time material to the questions that arise in this suit, had his residence at Igatpuri, where be was employed in railway service, and he has deposed that he did not come to Bombay to live there permanently until after he left the railway service on June 15, 1922. He admits that he is now living in the ancestral house already referred to, but says that he did not do so before November 1922. The suit was filed on March 30, 1922; and in the absence of any evidence to contradict the defendant I am constrained to hold that at the date of the institution of the suit the defendant did not dwell in Bombay, within the meaning of Clause 12 of the Letters Patent.

2. The question of jurisdiction has been raised at the time of framing issues in this suit, and I have allowed the defendant to amend his written statement by inserting a new para 10A on this point of jurisdiction. Accordingly the issue, whether the Court has jurisdiction to try this suit, is one that must first be decided.

3. The cruelty relied upon by the plaintiff, the driving her out of the defendant's house, and other circumstances, on which her H claim to maintenance is based, all appear to have happened out, side Bombay, and therefore it cannot be said that any part of the cause of action has arisen within the local limits of the ordinary original jurisdiction of this Court, unless the fact that the defendant owns this property, which it is sought to charge with the maintenance which may be decreed, is one that forma part of the cause of action. A cause of action as defined in Read v. Brown (1888) 22 Q.B.D. 128-a definition generally followed-means 'every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to sustain his action.' Taking that definition more or less literally, it might be said that, in so far as it was necessary for the plaintiff to prove the fact that the defendant had this house in Bombay in order to support her right to the judgment of the Court that the maintenance awarded her should be charged on that particular property ; therefore part of the cause of action did in fact arise in Bombay. But I do not myself think that that would really be a sound view, It has been held by the Privy Council in Chand Kour v. Partab Singh I.L.R. (1888) Cal. 98, that the cause of action 'has no relation whatever to the defiance which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.' The grounds upon which the plaintiff prays for relief in the way of awarding her maintenance are quite independent of the subsidiary fact that the defendant has this house in Bombay which can be charged with the amount of maintenance, and I think that that mere fact does not suffice to make part of the cause of action arise within the local limits of this Court's jurisdiction.

4. The only question that remains is whether this can be treated as a suit 'for land or other immoveable property' within the meaning of this Clause 12. There is direct authority for so treating suits in regard to claims for maintenance in Sundara Bai Sahiba v. Tirumal Rao Sahib I.L.R. (1909) Mad. 131. There it was held, where in a suit for maintenance the plaintiff prays for a decree charging her maintenance on specified immoveable property, the suit is a suit for land within the meaning of this Clause 12. Against adopting this view it is urged that this Court has not gone so far as either the Calcutta or the Madras High Courts in considering what are suits for land under this clause. And Mr. Chagla also relied upon the decision of the Calcutta High Court in Beer Chunder Manikkya v. Raj Coomar Nobodeep Chunder Deb Burmono I.L.R (1883) . There it was held that a suit for maintenance to be secured as a charge on immoveable property is not a suit for immoveable property within the meaning of Clause (c), Section 433, Act X of 1877. But that decision is not really in point because this Section 433(c) does not pimply say 'suits for laud or immoveable property' as in Clause 12 of the Letters Patent. The words actually used are 'the subject-matter of the suit is immoveable property'. The only way in which it was sought to bring the plaintiffs claim to maintenance in that suit under this Clause (c) was by suggesting that the maintenance claimed by the plaintiff was 'immoveable property' because of the prayer that it should be charged upon the immoveable property. That was met by the Court pointing out that there was no specific charge on that property and such it claim could only ripen into a charge, when the Court passed a decree making the maintenance such a charge. So I do not think that that decision really bears on the point at issue. And in regard to the construction which this Court has put on the words 'for land' &c.;, the leading case is Vaghoji v. Camaji (1904) 16 Bom. L.R. 958, where the judgment of the Court nays that there is no reason to limit the phrase 'a suit for land' to suit merely for the recovery of land. The question Law also been very fully considered in Zulekabai v. Ebrahim : (1912)14BOMLR846 , where Davar J. has considered all the cases on the subject. Referring to Vaghoji v. Camaji, he says that Sir Lawrence Jenkins there lays down in clear and explicit language that the words 'unit for land' do not mean only suits for the recovery of land, it is true that it has been held by this Court that a suit for foreclosure of a mortgage on land is not a suit for land: Sorabji v. Rttonji I.L.R. (1898) 22 Bom. 701; although, according to the Calcutta and Madras decisions, such a suit would be a suit for land. But its authority is much weakened by Vaghoji v. Camaji and the substantial criticism of His Highness Mhrimant Maharaj Yeshvantray Holkar v. Dadabhai Cursetji Ashburner contained in Mulla's Civil Procedure Code, 7th Ed., p. 1036. I can see no sufficient reason for refraining from following the decision of the Madras High Court in Sundura Bai Sahiba v. Tirumal Rao Sahib I.L.R. (1909) Mad. 133. This conclusion is, I think, fortified by the view taken by this Court in Sitabai v. Laxmibai (1915) 18 Bom. L.R. 67. There it was decided that a Court, within whose jurisdiction there was property sought to be charged for maintenance, had jurisdiction to try the suit for maintenance Under Section 16, Clause (d), of the Civil Procedure Code, although otherwise it had no such jurisdiction. There it is said (p.69): 'On the plaint as framed, the question which has to be decided before the Court will be enabled to pass a decree is whether or not the plaintiff is entitled to a right to, or interest in, immoveable property in the Bhimthadi Taluka by way of charge as security for the maintenance which may be decreed.' it was accordingly held that the suit for maintenance fell within the scope of Clause (d) of Section 16 of the Civil Procedure Code, as being one for the determination of a right to, or interest in, immoveable property. It seems to me that the words 'suits for land' in Clause 12 of the Letters Patent are very wide words, and that they do ordinarily cover suits in which there is to be a determination of a right such as that claimed in this case, viz., to have the property charged with the maintenance, if any, awarded to the plaintiff That is an important question because really it is the main guarantee of plaintiff actually reaping the fruits of the decree should she obtain it, and it is not a subsidiary question of such minor importance that it cannot properly make the suit one for land1. The plaintiff would Buffer substantially if she could not have her claim to maintenance litigated in a Court, having power to secure the maintenance on the defendant's immoveable property in this manner ; and so far as I am aware this Court is the only Court which can do this. So that I think this is certainly a case where the Court can equitably and properly say that this is a suit for laud. I accordingly answer the first issue in the affirmative, that is, the Court has jurisdiction to try the suit for maintenance.

5. It is no doubt true that the claim with regard to stridhan ornaments is on somewhat different footing to the claim for maintenance; and if the suit was entirely confined to that, then I doubt if this Court would have jurisdiction. But in so far as the main part of the suit is within the Court's jurisdiction and the question of stridhan ornaments is legitimately connected with the plaintiff's claim for maintenance, I think this Court can also exercise jurisdiction in regard to that claim. ' Naturally if the defendant has the plaintiff's stridhan ornaments and refuses to give them up to her, the Court would hive to take that into consideration in deciding what maintenance should be allowed to the plaintiff. Therefore, it is a question which does, in my opinion, come within the Court's jurisdiction.

6. Mr. Desai for the plaintiff contended that in any case there had been a waiver of jurisdiction by the defendant in his having accepted the Court's jurisdiction in prior interlocutory proceedings: but, in my opinion, this is not a case which falls within the class of cases where there can be a waiver of the objection to jurisdiction. The general rule is that consent of parties cannot give jurisdiction if the Court has no jurisdiction: and that is the principle, I think, which governs the present case.


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