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Nittala Achayya (Dead) and ors. Vs. Nittala Yellamma, Lately a Minor but Now Declared a Major and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1923Mad109; (1922)43MLJ615
AppellantNittala Achayya (Dead) and ors.
RespondentNittala Yellamma, Lately a Minor but Now Declared a Major and ors.
Cases ReferredCourt of Godavary. In Hajee Iamail Hadjee Hubbeeb v. Hadji Mahomed Hadjee Joosub
Excerpt:
- - that is another result that will flow from applying clause (d) which cannot easily be accepted unless the language of the provision clearly compels us to do so. the present suit is clearly one falling under section 39 of the specific relief act (i of 1877) as illustration (b) to the section shows. his allegation of interest and the threat to his rights involved in the setting up of a forged will by the widow are thus according to the definition clearly parts of his cause of action and as he claims the same interest in the godavary properties as in the rest of the properties, part of his cause of action, viz. 48. i fail to see, then, why if the document affects the right of a person to a property situated at any place, the cause of action does not arise in that place......estate on the widow's death if he survives her. such an interest has been recognised as giving a right of suit for a declaration. his allegation of interest and the threat to his rights involved in the setting up of a forged will by the widow are thus according to the definition clearly parts of his cause of action and as he claims the same interest in the godavary properties as in the rest of the properties, part of his cause of action, viz., that with reference to godavary properties, must be held to have arisen in godavary, just in the same way, as part of the cause of action viz., that with reference to the kistna properties, has arisen in kistna. on this view the godavary court had jurisdiction equally with the kistna court to try this suit under section 20, clause (6) c.p.c. this.....
Judgment:

Krishnan, J.

1. The question for our decision in this case is whether the lower court was right in holding that it had no jurisdiction to try the present suit.

2. The suit is one brought by the plaintiff as one of the two nearest reversioners to the estate of a deceased Hindu for a declaration that the will set up by his widow as having been executed by him and as giving her absolute rights in his properties is a forgery and is void against him and for obtaining its cancellation. The suit was filed originally in the District Court of Godavari and was transferrd by the District Judge to the Temporary Subordinate Judge of Rajahmundry for disposal. That judge has held applying Section 20, C.P.C., that the cause of action arose wholly within the jurisdiction of the District Court of Kistna and that as the parties were all admittedly resident within that jurisdiction that Court alone could try the case and has directed the plaint to be returned to the plaintiff to be presented to the proper court.

3. Now it is conceded by the respondents that though the bulk of the properties dealt with by the will lie in Kistna District some moveable and immoveable properties are in the Godavari District. The Subordinate Judge has held that that fact did not affect the question of jurisdiction but it is argued before us that he is wrong on that point. It is contended that Section 16. Clause (d), C.P.C. applies to the case and gives jurisdiction to the Godavari Court as some of the immoveables included in the will are within that court's jurisdiction and though the Kistna Court has also jurisdiction, Section 17 C.P.C. gives the choice of the tribunal to the plaintiff. Clause (d) refers to suits 'for the determination of any other right to or interest in immoveable property.' It seems to me difficult to apply that description to the present suit for there us no prayer in the plaint for the determination of any such rights. All that it asks for is a declaration and the cancellation of the will on the ground that it is a forgery. For Clause (d) to apply to the suit must be expressly for the purpose indicated in it. It is not enough in my view, for the clause to apply, to say that the relief granted in the suit would indirectly affect rights in immoveable property but the suit itself must be for the purpose of determining such rights. No doubt as a result of setting aside the will in the present case the reversioner's rights in the estate will be safeguarded but there is no prayer for declaring what those rights are and over what properties they exist. In fact in the present case the Court need not trouble itself to enquire what the properties are which are dealt with by the will so long as it is clear that plaintiff has a sufficient interest in them to be able to maintain the suit for its cancellation.

4. If we apply Clause (d) to a suit such as this to set aside a will as a forgery merely because it happens to deal with immoveables, and as we have to apply a different rule under Section 20, C.P.C. to similar suits about other wills which do not happen to dispose of immoveable properties we introduce a difference between two similar classes of cases which I think it is desirable to avoid. Furthermore if Clause (d) is to be applied the suit can be brought only in the place where the immoveable property is situate and nowhere else, as Section 16 makes it imperative that the suit shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. The application of Section 20, C.P.C. will be excluded as that section is 'subject to limitation aforesaid' and as a result it would follow that the suit could not be instituted where the parties reside or where the will is alleged to have been executed or is sought to be enforced or where the bulk of the property is situate if moveable, unless these places coincide with the place where the immoveable property is. That is another result that will flow from applying Clause (d) which cannot easily be accepted unless the language of the provision clearly compels us to do so.

5. All difficulty is avoided if we restrict Clause (d) to suits brought for the purpose of determining rights similar to the rights dealt with in Clauses (a) to (c) as the language plainly shows. The present suit is clearly one falling under Section 39 of the Specific Relief Act (I of 1877) as illustration (b) to the section shows. For such a suit, it seems to me, the proper section applicable is Section 20 C.P.C. That gives three alternatives for deciding the place of suing. Clauses (a) and (b) however cannot be relied on in the present case to give jurisdiction to the Godavari Court for none of the defendants resides or carries on business or works for gain in Godavari. Clause (c) however is relied on for the purpose. That clause gives jurisdiction to the court within whose local limits the whole or any part of the cause of action for the particular suit arises. The meaning of the words 'cause of action' in this clause has been considered in several cases and they have been held to mean the whole bundle of material facts which it is necessary for a plaintiff to allege and prove to obtain the relief he claims in the suit. See Manepalli Mangamma v. Manepalli Sathiraju : (1916)31MLJ816 and Maistry Rajabhai Narain v. Haji Karim Mamood : (1918)35MLJ189 . Now in a suit to set aside a will the plaintiff must allege that he has an interest in one or more of the properties dealt with in it to enable him to maintain a suit for its cancellation. Under Section 39 of the Specific Relief Act plaintiff must allege that if the instrument challenged is left outstanding it will cause him serious injury; and to be able to allege that, he must have an interest in the property, which will be jeopardized if the will is not cancelled. What the plaintiff in the present suit has stated is that he is one of two nearest reversioners to the estate or in other words he will be entitled to succeed to a share in the whole estate on the widow's death if he survives her. Such an interest has been recognised as giving a right of suit for a declaration. His allegation of interest and the threat to his rights involved in the setting up of a forged will by the widow are thus according to the definition clearly parts of his cause of action and as he claims the same interest in the Godavary properties as in the rest of the properties, part of his cause of action, viz., that with reference to Godavary properties, must be held to have arisen in Godavary, just in the same way, as part of the cause of action viz., that with reference to the Kistna properties, has arisen in Kistna. On this view the Godavary court had jurisdiction equally with the Kistna Court to try this suit under Section 20, Clause (6) C.P.C. This is a case which more than one court has jurisdiction to try and the choice of the tribunal was in the first instance in the plaintiff. But if an application had been made under Section 22 C.P.C. this Court could have considered in which of those courts it would be more convenient to have the suit tried; but no such application has been made and it is not necessary to express any opinion on the point at present.

6. For the above reasons the order of the Sub Judge is set aside and he is directed to take the plaint on his file again and to dispose of the suit according to law. The costs up to date will abide and follow the result.

Venkatasubba Rao, J.

1. In the plaint it is stated that the husband of the 1st defendant died at Tanuku in the Kistna District, that his paternal uncle and father concocted a will which purported to have been executed by him at Mandapaka, also in the district of Kistna, that the said will was presented by the 1st defendant for registration to the Sub-Registrar of Tanuku who refused to register it, but that on appeal to the District Registrar, Kistna, he ordered its registration. The properties affected by the will are situated in the district of Kistna excepting three items of land in the taluk of Razole in the Godavary District. The cause of action is alleged in the plaint to have arisen within the jurisdiction of the Godavary Court on the ground that the said three items of land are situated in the District of Godavary, The plaintiff as the nearest male reversioner entitled to the estate after the death of the 1st and the 3rd defendants, the wife and the mother respectively of the deceased person, has filed this suit for a declaration that the will is a forgery and does not affect his rights in the property. The suit was filed in the District Court of Godavary and was transferred to the Court of the Temporary Subordinate Judge of Rajahmundry.

2. The Sub-Judge held that the suit could not be regarded as one for determination of any right to or interest in immoveable property, falling within Section 16 Clause (d) C.P.C. that no part of the cause of action arose within the jurisdiction of the District Court under Section 20 Clasue (c) and he accordingly returned the plaint for presentation to the proper court.

3. The only relief prayed for in this suit is that it may be declared that the will is a forgery and is inoperative. It cannot therefore be said that the suit falls within Section 16 Clause (d) C.P.C. and the Sub-Judge was right in, holding that the suit is not one for the determination of any right to or interest in immoveable property.

4. The question however, Has the cause of action arisen wholly or in part within the jurisdiction of the Godavary Court, is more difficult to decide. No authority has been cited to us bearing on the subject but on a careful consideration it seems to me that a part of the cause of action has in this case arisen within the jurisdiction of the Court in question. The cause of action has been held to mean every fact or the bundle of facts which it is necessary for the plaintiff to prove before he can succeed in his suit. It is not limited to the infraction of the right but it is this plus the right resident in the plaintiff. To take an example, in the case of contract, the cause of action means both the making of a the contract and its breach. In a suit for a legacy against an administrator, the grant of administration, for a reward for apprehension and conviction of a thief, the conviction, on a life policy, the death of the assured, are parts of the respective causes of action. (See Woodroffe and Ameer Ali's C.P.C. Second Edition page 183).

5. The reasoning that will apply to the case of a will of this character will be the same as that applicable to a document alleged to have been brought about by the exercise of undue influence or fraud. At the place where the document or the will is executed, a part of the cause of action certainly arises. It is equally clear that where the whole or a part of the fraud or undue influence is practised or exercised the cause of action also arises. If the document is sought to be used to the detriment of a person at a particular place, the cause of action doubtless arises also at that place, Banke Behari Lal v. Pokhe Ram I.L.R. (1901) All. 48. I fail to see, then, why if the document affects the right of a person to a property situated at any place, the cause of action does not arise in that place. The mere existence of the instrument apart from any specific act of the person who relies on the document, prejudicially affects the right of the plaintiff to the property. If the instrument is left outstanding it constitutes a menace to his right in regard to the property which is within any particular area; it is not merely when the defendant seeks to enforce his rights under the instrument that harm results to the plaintiff. As I observed above, it cannot be denied that the cause of action arises at a place where the document is sought to be enforced independent 6f the circumstance of its having been executed or the fraud having been practised at an altogether different place. But why should that act on the part of the defendant be essential to the cause of action arising within that place, if as a matter of fact, there is within it some property which the document affects and to which the plaintiff is entitled? There is no reason to limit the term 'cause of action' as used in Section 20 of the Code to contracts; it applies to all suits of whatever nature subject to the limitations in the preceding sections, in the present case one of the material facts to be proved to entitle the plaintiff to succeed, is that he is interested in the properties within the jurisdiction of the Court of Godavary. In Hajee Iamail Hadjee Hubbeeb v. Hadji Mahomed Hadjee Joosub 13 B.L.R. 91 S.C a suit to set aside a release in Calcutta of the plaintiff's interest of certain property in Bombay) Couch, C.J. made the following observations in the course of his judgment.

The fraudulent representation which led to the execution of the release, may have been made, and the release may have been executed here; but the cause of action in this case consists of more than that. It includes the effect of the release upon the plaintiff's share of the property; if there had been no property, the execution of the release would not have injured the plaintiff in any way. In order to constitute a cause of action, there must be an injury to him from the operation of the release. Then where did the release take effect? Where was it operative? The property was in Bombay.

It was held that a part of the cause of action arose in the place where the property was situate and the release took effect. I respectfully adopt the argument contained in the passage quoted above.

6. To hold otherwise would lead to an anomaly. If a document is executed at place A and if the whole property affected by the document is situated at place B why should the plaintiff not have a right to seek relief at the place where the property is situated, that is, where his rights are affected'? If a person is a resident of and owns property at Madras and if a stranger claiming right to that property executes a document at Allahabad disposing of the property it seems unreasonable to hold that a part of the cause of action does not arise within Madras but that the aggrieved person must institute a suit only at Allahabad where there is not a particle of property belonging to him, although in a suit to set aside such a document the most essential facts which give the plaintiff a right to relief are the existence of the property and his interest in it. In the view I have taken there is no difference between moveable and immoveable property in regard to the application of the section in question. If the property in this suit within the District Court of Godavary happened to be a sum of money instead of three items of land my decision would still be the same.

For these reasons I agree in the order proposed by my learned brother.


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