Case Note & Summary
The plaintiff, Jaspal Sawhney, filed a petition seeking leave under Clause XII of the Letters Patent, 1865 to file a suit (L) No. 494 of 2014 against his father Joginder Sawhney (defendant no.1) and brother Nirpal Kohli (defendant no.2) for partition of the estate of his deceased father Kirpal Singh Sawhney. The plaintiff claimed a 1/3rd share in the estate, which included immovable properties in Mumbai, agricultural land in Muru-Janjira, Raigad, and a flat in Gurgaon, Haryana. The defendants opposed the grant of leave, arguing that the immovable property at Gurgaon was outside the court's jurisdiction. The court considered the averments that defendant no.1 resided in Mumbai, most assets were in Mumbai, and part of the cause of action arose in Mumbai. The court held that under Clause XII, if part of the cause of action arises within the jurisdiction, the court can grant leave to sue even if some immovable property is outside. The court found that the plaintiff had made out a prima facie case and granted leave, directing the suit to proceed.
Headnote
A) Civil Procedure - Jurisdiction - Clause XII Letters Patent, 1865 - Leave to Sue - Plaintiff sought leave to file suit for partition of estate including immovable property at Gurgaon, outside Bombay High Court's jurisdiction - Court held that since part of cause of action arose in Mumbai and defendant no.1 resided in Mumbai, leave could be granted - Held that Clause XII allows suit where part of cause of action arises within jurisdiction, even if immovable property is outside (Paras 1-15).
Issue of Consideration
Whether leave under Clause XII of the Letters Patent, 1865 should be granted to file a suit for partition and declaration of share in immovable properties situated partly outside the ordinary original civil jurisdiction of the Bombay High Court.
Final Decision
Petition allowed. Leave granted under Clause XII of Letters Patent, 1865 to file Suit (L) No. 494 of 2014. No order as to costs.
Law Points
- Clause XII Letters Patent 1865
- cause of action
- jurisdiction
- immovable property outside jurisdiction
- part of cause of action within jurisdiction
Case Details
2014 LawText (BOM) (08) 85
PETITION NO. 152 OF 2014 IN SUIT (L) NO. 494 OF 2014
Mr.V.R.Dhond, Senior Advocate, i/b. Dalal & Co. for the Plaintiff; Mr.D.D.Madon, Senior Advocate, a/w. Mr.Cyrus Ardhesir, Mr.Atul Daga, i/b. Subhash Pradhan & Co. for Defendant nos. 1 and 2.
Joginder Sawhney and Nirpal Kohli
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Nature of Litigation
Petition for leave under Clause XII of Letters Patent, 1865 to file a suit for partition and declaration of share in estate.
Remedy Sought
Plaintiff sought leave to file suit for declaration of 1/3rd share in deceased father's estate and partition of immovable and movable properties.
Filing Reason
Plaintiff claimed 1/3rd share in estate of deceased father Kirpal Singh Sawhney; defendants opposed jurisdiction as one immovable property (flat in Gurgaon) was outside Bombay High Court's ordinary original civil jurisdiction.
Issues
Whether leave under Clause XII of Letters Patent, 1865 should be granted when part of cause of action arises within jurisdiction but some immovable property is outside.
Submissions/Arguments
Plaintiff argued that part of cause of action arose in Mumbai, defendant no.1 resided in Mumbai, and most assets were in Mumbai, so leave should be granted.
Defendants opposed leave, contending that the immovable property at Gurgaon was outside the court's jurisdiction and thus the suit could not be entertained.
Ratio Decidendi
Under Clause XII of the Letters Patent, 1865, if a part of the cause of action arises within the ordinary original civil jurisdiction of the High Court, the court may grant leave to file a suit even if some immovable property is situated outside such jurisdiction. The court must be satisfied that a material part of the cause of action has arisen within its jurisdiction.
Judgment Excerpts
Petitioner (original plaintiff) has prayed for leave under clause XII of the Letters Patent, 1865 to file the suit (L) No.494 of 2014 against the defendants in this court.
In paragraph (20) of the plaint, it is averred by the plaintiff that the defendant no.1 resides in Mumbai. Most of the assets of the deceased are in Mumbai.
Procedural History
Plaintiff filed Petition No. 152 of 2014 seeking leave under Clause XII of Letters Patent, 1865 to file Suit (L) No. 494 of 2014. Defendants opposed. The court heard arguments and granted leave on 11th August 2014.
Acts & Sections
- Letters Patent, 1865: Clause XII
