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Dewan Izzat Rai Vs. Dewan Iqbal Nath Nanda and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberSuit Appeal No. 34 of 1977
Judge
Reported inAIR1981Delhi263; ILR1981Delhi180
ActsCode of Civil Procedure (CPC), 1908 - Sections 16
AppellantDewan Izzat Rai
RespondentDewan Iqbal Nath Nanda and ors.
Advocates: B.N. Nayar,; Usha Kumari and; A.B. Dayal, Advs
Cases Referred(See M.Y.A.A. Nachiappa Chettiar v. M.Y.A.A. Muthu Karuppan Chettiar and
Excerpt:
.....procedure code, is not applicable to that state but sub-section(5) of section 2 of the jammu & kashmir code defines the term 'foreign court' as a court situate beyond the limits of india which has no authority in india and is not established or continued by the central government of india. thereforee, as far as the state of jammu & kashmir is concerned, the courts in the rest of india are not foreign courts.(magher singh and others v. principal secretary, j & k government. air 1953 j & k 25 referred to).; 5. further section 29 of the jammu & kashmir code provides that if a summons or other process is received for service by a court in the jammu & kashmir state from a court situate in a state of india, such court shall upon receipt thereof, proceed as if it has..........resides or carries on business or works for gain within the territories of india as defined by the code: suit would be maintainable in india for accounts if the defendant resides in india; perhaps, it may even be maintainable if title to the property is not in dispute (see m.y.a.a. nachiappa chettiar v. m.y.a.a. muthu karuppan chettiar and others. a.i.r. 1946 mad 398. the position here is entirely different and no matter which way one looks at it the suit in respect of properties in jammu and kashmir is not maintainable. (12) in our opinion, the approach of neither party is correct. the solution to the problem is to be found by adopting an entirely different approach. (13) as we have noticed earlier, though the state of jammu and kashmir has a special status by virtue of the a provisions.....
Judgment:

Prakash Narain, A.C.J.

(1) This is a reference by a learned Single Judge siting on the Original Side to determine a pure question of law which has arisen in the suit and pertains to the jurisdiction of this court to entertain the suit' in respect of a part of the property involved which is situate in the State of Jammu and Kashmir.

(2) Dewan Dhan Pat Rai was possessed of considerable properties both moveable and immoveable. Some of the immoveable properties are situate in the State of Jammu and Kashmir. It is said that some of the moveable assets comprised of gold and silver jewellery etc. are also lying in the ancestral home of the parties which is situate in Jammu and Kashmir. Other immoveable properties are situate in Delhi and Jullundur. There are bank deposits and shares etc. which are also subject-matter of the suit. Dewan Dhan Pat Rai died in January, 1971. The plaintiff, Dewan lzzat Rai Nanda, and defendants 1, 2 and 3, respectively Dewan lqbal Nath Nanda, Dewan Prithvi Raj Nanda and Dewan Jaswant Rai Nanda, are the sons 'of Dewan Dhan Pat Rai. Defendant No. 4, Sirit. Kanta Dewan, is the widow of late Dewan Suraj Prakash Nanda, a pre-deceased son of Dewan Dhan Pat Rai. Defendants 5 and 6 are minor daughters of defedant No. 4. Defedant No. 7 is the minor married daughter of Dewan Suraj Prakash. Defedant' No. 8 is the married daughter of Dewan Dhan Pat Rai, a sister of the plaintiff and defendants 1 to 3. Defendants 9, 10 and Ii are the legal representaitves. of Smt. Suraj Kanta, another daughter of Dewan Dhan Pat Rai who is dead.

(3) Dewan lzzat Rai Nanda, plaintiff, has filed a suit in this court for partition of joint Hindu family properties left by Dewan Dhan Pat Rai and for accounts. According to the plaintiff Dewan Dhan Pat Rai and his sons constituted a joint Hindu family which family owned considerable. property, both moveable and immoveable and were being managed by Dewan Dhan Pat Rai as the Karta. It is alleged that after the death of Dewan Dhan Pat Rai, Dewan lqbal Nath Nanda, a resident of Jammu and Kashmir, has been managing the joint Hindu family properties and assets- Accounts are sought by the plaintiff against Dewan lqbal Nath Nanda, defendant No. 1.

(4) According to the plaintiff the Civil Courts at Delhi have jurisdiction to entertain and try the suit not only because some of the properties are in. Delhi but also because the joint Hindu family is alleged to have a family house situate at 13A/19, East Patel Nagar, New Delhi, in which the members of the family have been staying for long periods. Para 18, of the plaintiff which sets out how this court has jurisdiction to entertain and try the smt reads as under :

'THATthe joint Hindu family has since about 1951 a permanent abode at Delhi 15 13A119, East Patel Nagar, New Delhi, where the Karta and the other members of the family used to stay for long periods and been now members of the .joint Hindu family are residing. The death of the Karta and father Dewan Dhanpat' Rai took place at Delhi. He used to live for long periods at Delhi during his life time. The cause of action also arose at Delhi because a large number of immoveable properties belonging to the Joint Hindu Family, including the family residential house at 13A/19, East Patel Nagar, are situate there. Movable properties of the joint Hindu family comprise .of cash, securities, post office and bank deposits at Delhi. The general Power of Attorney authorising .defendant No. I to jointly manage the joint Hindu family properties with Brigad dier Prithvi Raj Dewan was executed and registered at Delhi. This Hon'ble Court has, thereforee, jurisdiction to try the suit.'

(5) Defendants I and 3 in their written statements have raised a preliminary objection that this court has no jurisdiction regarding the properties .situate in Jammu and Kashmir. As the efforts at reconciliation failed and the matter was of serious importance, the issue regarding maintainabiliry of the suit vis-a-vis properties situate in Jammu and Kashmir has been referred to the larger Bench. That is how the matter is before us.

(6) Normally, in suits for partition it is the provisions of Sections 16 and 17 of the Code of Civil Procedure 1908 which will be attracted. Section 16 lays down that subject to the pecuniary or other limitations prescribed by any law, suits, inter alia, for the partition of immoveable property and suits for determination Of any other right to or interest 'immovable property are to be instituted in the court within the local limits of whose jurisdiction the property is situate. The proviso to Section 16, however, makes an exception and provides that a suit to obtain a relief, inter alia, respecting immovable property held by a defendant may also be instituted in a court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business, or personally words turn gain if the relief can be entirely obtained through his. personal obedience. There is an Explanationn 'under the pproviso to Section 16 of the Code which clarifies that the property referred to in the section means property situate in India. Thus, where by personal obedience to a decree, relief with regard to a property can be obtained, it can be institute even in a place where the property is not situate so long as the property is situate in India. Section 17 of the Code lays down that where properties are situate within the territorial jurisdiction of various courts, a suit may be instituted in any court within the local limits of whose jurisdiction any property or portion of the property is situate

(7) If the matter had rested merely on the application of the Code of Civil Procedure, 1908 to the present suit there would have been no difficulty because on a combined reading of Sections 16 and 17 of the Code the suit would be held to be maintainable at Delhi. The problem arises because of the definition of the word 'India' as given in sub-section (7B) of Section 2 of the Code. This .subsection reads as under :

'India' excepting in sections 1, 29, 44, 44A, 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir.'

Further, the Code of Civil Procedure, 1908 extends to the whole of India except the State of Jammu and Kashmir and the State of Nagaland and the tribal areas. This, presumably, is on account of a special status granted to the State of Jammu and Kashmir by Article 370 of the Constitution of India.

(8) The objection of defedants I and 3 to the maintainability of the suit filed by. the plaintiff vis-a-vis properties situate in the State of Jammu and Kashmir is that as far as such suits are concerned, the State of Jammu and Kashmir has to be regarded as foreign territory and not part and parcel of India. thereforee, the courts in India will have no jurisdiction to entertain the suit in respect of property situate in foreign land. It is urged that as far as suits pertaining to properties situate in the State of Jammu and Kashmir are concerned, the State of Jammu and Kashmir is in the same position as. any other foreign country like United Kingdom or Germany. Reference is also made to the situation obtaining in India prior to the promulgation of the Constitution when suits in-respect of properties situate in the erstwhile Princely States of India could not be entertained by civil courts situate in what was known as British India. The contention, thereforee, is that Section 17 of the Code is of no avail as a combined reading of Sections 16 and 17 of the Code would show that they are not attracted so far as suits in resped of properties situate in foreign territories are concerned To this objection the reply on behalf of the plaintiff is that even if Sections 16 and 17 of the Code are not attracted, the principles of Private International Law should be appplied and it should be held that the suit as filed is maintainable. Some assistance is sought from Section 20(c) of the Code and it is urged that if apart of the cause of action arises in Delhi then merely because is the State of Jammu and Kashmir is not part of 'India' within the meaning of the Code it should not be held to debar the suit vis-a-vis properties situate in Jammu and Kashmir. What is urged is that the principles of effectiveness or submission warrant assumption of jurisdiction by this court.

(9) It is common case that Section 16 and 17 of the Code in terms do not apply to the present suit. thereforee, what has to be seen is whether either by applying the principles of effectiveness and Submission or any other principle it can be held that the suit as failed is entertainable as a whole by this court.

(10) The normal rule of the maintainability of a suit is set out in Section 16 of the Code and rightly so. The court would like to deal only with those properties over which it has territorial jurisdiction. Incorporating the equitable doctrine in the statute to the effect that equity acts in personam, the proviso to Section 16 of the Code permits suits being filed even in a court in which the property is not situate provided the defendant actually and voluntarily resides or carries on business or person a!ly works for gain in the territory or place where the suit is filed because the court looks to the fulfillment of its decree to the person of the defendant. The provisions of the proviso, however, arc applicable only to the properties within the territories of India as defined by the Code. This equitable doctrine is evolved as a doctrine of Private International Law because a court does not entertain a suit in respect of a property not situate within its jurisdiction if its decree or process cannot be enforced in personam, as the courts do not pass infructuous decrees. As was. said by Lord Selborne in Ewing v. Orr Ewing 1883 (9) A C 34 :

'THECourts of Equity in England are, and always have been, courts of conscience, operating in personam and not in rem; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and. trusts as to subjects which were not either locally or ratione domicilli within their jurisdiction. They have done so us to land, in England, in Ireland, in the Colonies, in foreign countries.'

it has been consistently held by courts in this country that the jurisdiction of the courts has to be governed by the same principle except so far as they may be at variance with the legislative enactments (See I.L.R. 24 Bom 401 . The courts of Equity, however, exercise jurisdiction in personam only in cases of contracts, for example, contracts for sale of land, mortgage or fore closure or redemption of mortgage, cases of fraud as well as land where land has been acquired by fraud of parties residing within the territorial jurisdiction of the court and' the oases of trust to enforce an express trust affecting land outside the territorial jurisdiction of the court. Suits 'directly involving title to property, such as suits for the recovery, partition or damages passed in respect of immoveable property situate outside the territorial, jurisdiction of the court, have, however, not been entertained. Indeed, there have been innumerable cases in the past where courts in India have had to pronounce upon maintainability of the suit in respect of properties situate in the erstwhile Princely States. The consistent view that has always been taken is that the suits would not be maintainable incourts in British India as the Princely States were foreign territories and as far as Princely States were concerned, British India was foreign territory. It is not necessary to refer to the-large number of cases to which our attention has been invited because the point is well-settled.

(11) Mr. P. C. Khanna, learned counsel for the plaintiff, has strenously urged that the position of the erstwhile Princely States vis-a-vis British India was entirely different from the position of the State of Jammu and Kashmir vis-a-vis 'India' as defined by Article I of the Constitution of India. It is not disputed, and indeed it cannot be disputed that the State of Jaramu and Kashmir is an integral pan of the territory of the Union which is described in the. Constitution as India, that is Bharat. The difficulty arises on account of the Code of Civil Procedure, 1908 not being appplicable to the State of Jammu and Kashmir and the historical background of that State becoming part and parcel of India. On a combined reading of the provisions of Article 370 and other relevant Articles of our Constitution and the provisions of the Constitution of the State of Jammu and Kashmir as well as the Code of Civil Procedure 1920 A.D.1977 of the State of Jammu and Kashmir, hereinafter referred to as the J.&K.; Code the problem is not so unsurmountable as the defendants contend. Mr. Khanna urges that if the State of Jammu and Kashmir is foreign territory in the sense that the erstwhile Princely States of India were qua British India, the principle of executability of a decree should really govern the case in deciding the maintainability of the suit. He invites our attention to Section 44 of the J. & K. Code which lays down that the Government of the State of Jammu and Kashmir by notification in the Governement Gazette declare that decrees of any Civil or Revenue Court situate in India beyond the Limits of the Jammu and Kashmir State or of any Court established or continued by the authority of the Central Government of India outside India or any class of such decrees may be excluded in the State of Jammu and Kashmir as if the same had been passed by the courts of the State. It is urged that as decrees passed by civil Courts in India are executable in the State of Jammu and Kashmir, thereforee one of the tests of Private International law of enforceability is satisfied and, thereforee, the courts in India applying the said equitable doctrine should hold the suit for partition of joint Hindu family property situate both in India and the State of Jammu and Kashmir maintainable in India. On the other side it is contended that the argument, though attractive, cannot be accepted because in view of the provisions of Section 16 of the Code a decree passed by the courts in India in respect of properties situate in the State of Jammu and Kashmir will be regarded as a nullity and may be held in executable because of that reason by a court in the State of Jammu and Kashmir despite Section 44 of the J. & K. Code. There is no allegation that defendant No. I either voluntarily resides or carries on business or works for gain within the territories of India as defined by the Code: suit would be maintainable in India for accounts if the defendant resides in India; perhaps, it may even be maintainable if title to the property is not in dispute (See M.Y.A.A. Nachiappa Chettiar v. M.Y.A.A. Muthu Karuppan Chettiar and others. A.I.R. 1946 Mad 398. The position here is entirely different and no matter which way one looks at it the suit in respect of properties in Jammu and Kashmir is not maintainable.

(12) In our opinion, the approach of neither party is correct. The solution to the problem is to be found by adopting an entirely different approach.

(13) As we have noticed earlier, though the State of Jammu and Kashmir has a special status by virtue of the A provisions of the Constitution, it is an integral part of India What exactly is the position of the State of Jammu and Kashmir has been dilated upon by a Bench of the High Court of Jammu and Kashmir in Maghar Singh and others v. Principal Secretary, Jammu and Kashmir Government. A.I.R. 1953 J.& K. 25. We may with advantage read the relevant portions of that judgment. The point for determination in the appeals before that High Court was whether the Jammu and Kashmir Big Landed Estates (Abolition) Act was ultra virus the powers of Yuvraj Karan Singh who had made that Act in exercise of the power vested in him under Section 5 of the Jammu and Kashmir Constitution Act read with the proclamation issued by the Maharaja of Jammu and Kashmir published in the Gazette. It was held that the State Constitution Act was clearly saved under clause 8 of the Instrument of Accession and remained materially unaffected by Article 370 of the Indian Constitution. It was further held that Article 385 of the Constitution does not in terms apply to the State of Jammu and Kashmir and that under Article 370 only such provisions of the Constitution could be declared by the President in consultation with the State Government to apply to the State of Jammu and Kashmir as related to matters specified in the Instrument of Accession. It was further held that the Yuvaraj was not a delegate of the Maharaja and had full power to legislate. It was in this context of examining the position of the State of Jammu and Kashmir vis-a-vis India of which the State of Jammu and Kashmir was an integral part, that it was observed as under :

'Acarcful examination of this article would, show that it in no way altered the basis of relationship between the State and the Union of India. The residuary sovereignty of the State and the powers of its Ruler in matters other than those specified in the Instrument of Accession remained unaffected. The purpose for which Art. 370 was incorporated in the Indian Constitution is clear from the language of the article itself. This is also apparent from the speechcsmade by the prominent members of the Government of India who were responsible turn drafting this article and piloting it through the Constituent Assembly. On 12-10-1949 this is what the later Sardar Patel, Deputy Leader of the Congress Party, Deputy Prime Minister and the Minister of States said in the Constituent Assembly on this subject : In view of the special problem with which the Jammu and Kashmir Government is faced, we have made special provision for the continuance of the relationship of the State with the Union on the existing basis. In relation to the State of Jammu and Kashmir in short the effect of this article to use the words of the late Mr. Gopalaswami Ayyangar is that the Union Legislature will get jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the concurrence of the Government of State which is of course subject to the ratification by the State Constituent Assembly and the State would continue to be govoerned in residuary field by its own laws and by its own Constitution.'

It was in the light of the constitutional background that the Code has not been made applicable to the State of Jammu and Kashmir. It follows, thereforee, that as far as the courts in India, as defined by the Code, are concerned, the same could be regarded as foreign courts in the State of Jammu and Kashmir :andvice-versa. Mr. B.N. Nayyar appearing for defendant No. I strongly relics on this aspect to contend that the suit be held as not main- tamable vis-a-vis properties in the State of Jammu and Kashmir. But as we have observed, the perspective has to be different and this would be clear when we examine some of the provisions of the J. & K. Code.

(14) SUB-SECTION (5) of Section 2 of the J. & K. Code defines the term 'foreign Court' as a court situate beyond the limits of India which has no authority in India and is not established or continued by the Central Government of India. thereforee, as far as the State of Jammu and Kashmir is concerned, the courts in the rest of India are not foreign courts. Section 29 of the J. & K. Code provides that if a summons or other process is received for service by a Court in the Jammu and Kashmir State from a Court situate in a State of India, such Court shall upon receipt thereof, proceed as if it has been issued by such Court and shall then return the summons or other process to the Court of issue together with the record (it any) of its proceedings with regard thereto. Section 44 of the J. & K. Code postulates execution of decrees passed by Courts in other States in India by the Courts in the State of Jammu and. Kashmir in the, same manner as decrees of Civil Courts passed in any of the other States of India are executable under Section 44 of the Code. The equitable doctrine practiced by courts in England would not in terms be applicable when we are concerned with courts in the State of Jammu and Kashmir and courts in the other States of India. The State of Jammu and .Kashmir is certainly not foreign territory. Only a different Code of Cilvil Procedure is in force there. Merely because a different Code of Civil Procedure is inforce in the State of Jammu and Kashmir does not mean that a decree passed hy courts in any other State. of India would be a nullity. The suit may not. be maintainable under Section 16 of the Code but the decree of the court passed by a court in a State other than Jammu and Kashmir is executable in A the State of Jammu and Kashmir. Perhaps, it was the views expressed in the decisions rendered by various High Courts and even by the Privy Council in the pre-Constitution are that prompted the Legislature in the State of Jammu and Kashmir to clarify that decrees of Indian courts are not decrees of foreign courts by defining what is a foreign court. If the courts in the States of India are not foreign courts according to the J. & K. Code and admittedly the State of Jammu and Kashmir is an integral part of India, we do not see why the equitable doctrine of effectiveness cannot be invoked. Indeed, it would be a negation of the judicial process and the concept of the integrity of India to adopt the principle enunciated in the decided cases, when British India and the erstwhile Princely States of India were foreign territories vis-a-vis each other. It cannot be disputed that the suit is maintainable, at least qua properties situate within the Union Territory of Delhi and Jullundur. It would be encouraging multiplicity of litigation if the plaintiff had to file a suit for partition with regard to properties in the State of Jammu and Kashmir separately restricted to properties other than those situate in Delhi and Jullundur. Apart from the fact that there may be a conflict of decision if such two suits are filed, One has to keep in view the fact that ultimately appeals from the suit filed in Delhi and the suit filed in the State of Jammu and Kashmir may land up in the Supreme Court which has jurisdiction over the courts of entire country including the State of Jammu and Kashmir.

(15) Although strictly speaking Sections 16 and 17 of the Code are not attracted, as observed by us earlier, and the doctrine enunciated by Courts of Equity in England in terms is not .applicable, in the circumstances of the case the peculiar situation obtaining in our country, we have to evolve a new equitable doctrine and that is that the principles of Sections 16 and 17 of the Code would b.e attracted in view of the provisions of the J. & K. Code. and that the principle of enforceability or executability warrants holding that the suit as filed is maintainable.

(16) There is one other way in which we may look at the problem and that is that as far as the properties in Delhi and Jullundur are concerned, defendant No. I would have to submit to the jurisdiction of this court. Once he has submitted to the jurisdiction of this court even decrees passed with regard to properties situate in Jammu and Kashm ir can be personally enforced against him. Indeed, it is not disputed that as far as the suit for accounts is concerned, it is maintainable. Accountability will bs with regard to the entire property held to be joint Hindu family property. That may include the property in the State of Jammu and Kashmir. thereforee, it would be inadvisable to restrict the suit and hold that relief in respect of properties situate in Jammu and Kashmir can only be granted to the extent of accountability and not otherwise. Law must be so enforced as to reduce the litigation and not encourage multiplicity thereof. Once defendant No. I submits to the juridicition of this court or is required to submit to the jurisdiction of this court for part of the property, he cannot be allowed to contend that vis-a-vis properties situate in Jammu and Kashmir this court has no jurisdiction. The courts in the State of Jammu and Kashmir and any other States of India are courts of the Indian Union and merely because different Codes apply cannot persuade us to hold that we should treat the courts in the state of Jammu and Kashmir to be foreign courts or vice versa to fit in with the rule enunciated by earlier decided cases.

(17) Our opinion, thereforee, is and we hold that this court has territorial jurisdiction to entertain and decide the present suit in respect of properties situate in the State of Jammu and Kashmir also.

(18) The matter should now go back to the Original Side for further proceedings. The cases in this reference will abide the costs in the suit.


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