1. This revision arises out of Suit No. 151 of 1965 instituted by Smt. Janki Devi in the Kanpur courts in respect of properties situate not only in Kanpur but also in other districts over which the Civil Judge of Kanpur has no territorial jurisdiction. One of the objections raised to the trial of the suit was about the mis-joinder of causes of action and mis-joinder of the parties. Issue No. 8 framed in this connection is as below:--
'Is the suit bad for multifariousness?' The learned Civil Judge recorded a finding that the suit was bad for mis-joinder of parties and causes of action and directed the plaintiff to remove the defects within 15 days.
2. The material facts of the case are that Ram Swarup and his brother Nanhu Mal carried on business jointly at Rangoon and acquired many properties. Nanhu Mal died in 1922 leaving behind his widow Smt. Kalawati. It is said that after the death of Nanhu Mal, Ram Swarup managed the property with the consent of the widow Smt. Kalawani. Rani Swarup died issueless in 1938 leaving behind his widow Smt. Indra Devi, Thereafter, the nephew of Ram Swarup and Nanhu Mal, namely, the sons of another deceased brother Dwarika Prasad. instituted Suit No. 165 of 1946 against Smt. Indra Devi and Smt, Kalawati, which was compromised and the entire property was given to Smt. Indra Devi with a limited ownership for her lifetime. Nanhu Mal had two daughters, Smt. Parbati Devi and Smt. Janki Devi (Plaintiff). The case of Smt. Janki Devi is that even on, the enforcement of the Hindu Succession Act Smt. Indra Devi had merely a life estate and did not become absolute owner of the properties. Smt. Indra Devi died in July, 1961. The plaintiff's case is that on her death properties acquired by her under the compromise were inherited by the three sons of Dwarika Prasad and two daughters of Nanhu Mal each having 1/5th share. Smt. Janki Devi thus claimed 1/5th share and prayed for partition of her share in the entire property.
3. Smt Indra Devi executed a deed of trust of certain properties in the year 1938 and two deeds of trust in 1958 appointing defendants 1 and 2 as Sarvara-kars. She also transferred House No. 106/ 344, Gandhi Nagar, Kanpur to Sheo Narain on 3-8-1959; and House No. 106/164, Gandhi Nagar, Kanpur to Surendra Singh on 3-1-1959. The transferees on their part made a will or transfer in favour of others. The plaintiff is challenging the two deeds of trust of 1958 on the ground of fraud. Sheo Narain executed a will in respect of the said house in favour of his sister's son Dhannamal. Dhannamal transferred the said house No. 106/344 in favour of Phool Chand Shukla. The plaintiff is challenging the genuineness of the will in, favour of Dhannamal. The transfer made by Dhannamal is also challenged on the ground that it is collusive, illegal and without any authority. Surendra Singh on his part transferred House No. 106/164 to Smt. Padmawati, defendant.
4. The plaintiff, in addition, has claimed 1/5th share in the profits already availed of by the various defendants.
5. The question for consideration is whether a single suit in respect of the various transfers, all the more when, the properties lie in different territorial jurisdiction is maintainable before the Kanpur Courts.
Section 17 of the Code of Civil Procedure runs as below:--
'Where a suit is to obtain relief respecting, or compensation for wrong to, immoveable property situate within the jurisdiction of different Courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate:
Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.'
Similarly. Order I, Rule 3, provides who may be joined as defendants and this rule is as below:--
'All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.'
6. Section 17 of the Code thus permits one suit respecting immovable property situate within the jurisdiction of different courts and such suit can be instituted in any court within whose territorial jurisdiction any part of the property is situate. The only restriction imposed by this section is that the entire claim should be within the pecuniary jurisdiction of the court. Section 17 has been worded generally and, therefore, where the plaintiff claims a relief respecting immovable property situate within the jurisdiction of several courts he can institute one suit in one of the courts and that court can take cognizance of the suit even though many properties lie beyond its territorial jurisdiction.
7. Similarly, Order 1, Rule 3 of the Code permits the plaintiff to join as defendants against whom a relief is claimed in respect of or arising out of the same act or transaction or series of acts or transactions provided that if separate suits were brought against such persons a common question of law or fact would arise. The restrictions imposed by Order 1, Rule 3, therefore, are that the series of acts or transactions must be such which would justify placing the various defendants in the same group or category and further in respect of the various sets of defendants any common question of law or fact arises.
8. A similar right to relief can arise against the different sets of the defendants if the basis of the plaintiff's claim is the same. For example, where a widow having a life interest makes transfer by sale, gift or otherwise, a reversioner claiming the property situate in different districts and transferred to different sets of persons has a common basis of the claim. The cause of action in all these cases isthe same. Therefore, there exists a common right to relief. In such cases there will invariably arise a common question of law or fact. Therefore, one suit against all the defendants shall be maintainable under Order 1, Rule 3. Civil Procedure Code and by virtue of Section 17 of the Code the suit can be instituted in any court even, though many properties are situate outside its territorial jurisdiction.
9. This rule cannot, however, be applied where there is not one cause of action but different causes of action. If the plaintiffs try to challenge the transfers not merely on the ground that the person making the transfers had a limited interest with no right of transfer but also on other grounds as in the present case on the ground of fraud or Invalidity of the transfer, there shall not be a common right to relief and only one of the questions shall be common for decision in the various suits if instituted separately. If one suit in respect of such causes of action is permitted the defendants would be put to unnecessary harassment. Other complications may also arise.
10. On reading Section 17, and Order 1, Rule 3, Civil Procedure Code we are of opinion that it is only in those cases where there is one cause of action and the basis of the plaintiff's claim is the same in all the claims against the various defendants, that one joint suit in respect of all the immovable properties, whether situated within the jurisdiction of that court or within the jurisdiction of different courts, can be taken cognizance of provided that a part of the property lies within its territorial jurisdiction and the total claim is within its pecuniary jurisdiction.
11. Similar view was expressed in Smt. Kubra Jan v. Ram Bali, 560(1908) ILR 30 All . This Full Bench decision does not appear to have been brought to the notice of the Division Bench hearing the case of Karam Singh v. Kunwar Sen AIR 1942 All 387. However, many observations made therein are not contrary to the law laid down in the above mentioned Full Bench case. The sum and substance of this Division Bench case also is that where in the facts and circumstances of the case all the properties can be treated as one entity a joint trial shall be permissible but not where they are more or less different properties with different causes of action. The material observations are as below:--
'........ and this implies, in my judgment, that the acts or transactions, where, they are different, should be so connected as to constitute a single series which could fairly be described as one entity or fact which would constitute a cause of action against all the defendantsjointly. Whether this necessary condition exists in any particular case would, of course, depend upon the nature of the case but I am satisfied that this at least is necessary that the case should be such that it could be said that the Court in which the suit was instituted had local jurisdiction in the first instance to deal with the controversies arising between the plaintiffs and each of the defendants.
The property must, in the particular circumstances of the suit, be capable of being described as a single entity. Whether it can or cannot be so described will depend again upon the nature of the dispute between the parties . If there is a dispute, for instance about a single estate which both parties are claiming as a whole that estate is obviously for the purposes of that particular suit a single entity. If, on the other hand, the owner of an estate has a claim against unconnected trespassers who have trespassed upon different parts of the estate or different properties situated within it, those parts or those properties would not for the purposes of the dispute between him and the trespassers be one entity but several entities and the provisions of Section 17, would not apply'.
12. In other words, the law laid down in AIR 1942 All 387 (supra) is not different from the view expressed in the Full Bench though the only difference is that in the Division Bench case great stress was laid upon the properties being such as can be regarded as a single entity. In Ramdhin v. Thakuran Dulaiya AIR 1952 Nag 303 (FB) the challenge in one suit of all the transfers by one widow was held to be permissible but not the alienations made by the other co-widow.
13. We are thus of opinion that a joint trial challenging the various transfers made by Smt. Indra Devi on the ground that she had merely a life interest and any transfer made by her was not legal and effective after her death is permissible, even though the transfers are in favour of different sets of persons and the properties are situated in other districts also. In the present case, however, the plaintiff is further attempting to challenge the two deeds of trusts and also the transfers made by the transferees. Sheo Narain and Surendra Singh, on other grounds. This cannot be permitted in a joint suit. In case the plaintiff wishes to challenge the transactions on these, additional grounds, she must institute separate suits in respect of those transactions; but if she challenges the deeds of trust and the various transfers made by Smt. Indra Devi merely on the ground that she had a life interest, joint trial in a common suit instituted at Kanpur shall be permissible. In case there is no challenge to the transfers made by the transferees of Smt. Indra Devi except on the ground indicated above, the subsequent transferees can be impleaded in the suit and a joint trial shall be permissible, but if the subsequent transfers are challenged on other grounds also, a separate suit must be instituted before a competent court.
14. Considering that two deeds of trusts are alleged to be fraudulent and the subsequent transfers are challenged on other grounds also, the present suit suffers from the defect of mis-joinder of parties and causes of action. It shall, however, be open to the plaintiff to have the plaint amended if she still desires to institute one suit at Kanpur to challenge all the transfers made by Smt. Indra Devi but the challenge must be on the single ground that Smt, Indra Devi had merely a life interest in all the properties.
15. The revision is hereby dismissed and the plaintiff is permitted to remove the defects within one month of the receipt of the record in the trial Court or within such further time as may be granted by the Civil Judge. Costs easy.