Kunhalan Kutty v. Pathumma — 1969 DIGILAW 93 (KER)

JUDGMENT T.S. Krishnamoorthy Iyer, J. 1. This appeal is filed by the 5th respondent in I. A. 109 of 1966 filed in the Principal Munsiff s court, Manjeri for passing a final decree in O. S. 392 of 1938 pending before the Munsiff's court, Parappanangadi. O. S. 392 of 1938 was filed in the Parappanangadi Munsiff's court for partition and recovery of the share of the plaintiff and defendants 6 and 7 in the plaint items. A preliminary decree was passed by the Munsiff's court, Parappanangadi on 15-2-1940. The suit is still pending in that court. But the plaintiff filed I. A. 109 of 1966 for passing the final decree in the Manjeri Munsiff's court on 18-1-1966. The final decree and judgment from out of which the second appeal arises were passed by the Manjeri Munsiff's court. The appellant is the 12th defendant in the suit and as already stated 5th respondent in I. A. 109 of 1966. 2. Ex. P1 sale deed in favour of the 12th defendant in respect of B schedule items 1 and 2 and D Schedule items 1 to 6 was impeached on the ground that it would not bind the interest of the plaintiff and defendants 6 and 7 in these items because they were not represented in Ex. PI by their de jure guardian. The preliminary decree in allowing the shares due the to plaintiff and defendants 6 and 7 declared that Ex. P1 is not binding on their interests and allowed them to recover their shares in the properties comprised in Ex. P1 also on payment of the proportionate amount of sale consideration which was fixed at Rs. 975/- 3. The 12th defendant resisted I. A. 109/66 filed in the Manjeri Munsiff's Court on the grounds that it has no jurisdiction to deal with the final decree application, the application is barred by limitation, the suit has abated on account of the non impleading of the legal representatives of many of the defendants who are dead the plaintiff and defendants 6 and 7 are not entitled to mesne profits and that the 12th defendant should be paid the value of improvements effected in the properties. All the contentions were overruled concurrently both by the trial court as well as by the appellate court. The second appeal is directed against the decree and judgment of the appellate judge. 4. All the contentions were overruled concurrently both by the trial court as well as by the appellate court. The second appeal is directed against the decree and judgment of the appellate judge. 4. All the points found against by the lower courts were pressed before me by the learned counsel for the 12th defendant. The first question to be considered is whether the Manjeri Munsiff's court has jurisdiction to deal with I. A. 109 of 1966 and pass a final decree in the suit. This point was argued at considerable length by both sides. As a result of the readjustment of territorial jurisdiction of courts the plaint schedule properties were, subsequent to the passing of the preliminary decree, by the notification No. H. C. 8. 42444/58/Home (C) dated 22-12-1956 issued by the Government of Kerala transferred to the jurisdiction of the Manjeri Munsiff's court. The courts below have held that since the properties which are the subject matter of I. A. 109 of 1966 are within the territorial jurisdiction of the Munsiff's court Manjeri that court is competent to deal with the application. There is no dispute between the parties regarding the competency of the Munsiff's court, Parappanangadi to entertain the suit on the date of its filing and on the date of the passing of the preliminary decree. The question whether a court has got territorial jurisdiction to try a suit has to be decided on the date of its institution and not at any subsequent stage and when initially a court has the necessary territorial jurisdiction to entertain the suit the said jurisdiction of that court unless it is established that in the meantime that court was completely divested of its power to deal with that suit. The learned Munsiff would take a different view relying on the decision to the Patna High court in Dineshwari Kuer v Ram Narain Singh AIR 1936 Patna 546. The learned Munsiff would take a different view relying on the decision to the Patna High court in Dineshwari Kuer v Ram Narain Singh AIR 1936 Patna 546. Their Lordships observed: "Once a new court is established and the territorial limit of an existing court is curtailed by notification of Government, the latter court ceases to have jurisdiction over the area which is taken away from its jurisdiction and placed under the jurisdiction of the newly established court, Similarly, if an area is taken out of the jurisdiction of one existing court and placed under that of another, the former court ceases to have jurisdiction over the cases of the area so taken out of its jurisdiction and the pending cases automatically placed under the jurisdiction of the latter court. It is not enough that a court should have jurisdiction over any suit at the time of its institution but that its jurisdiction must continue till the case is finally disposed of, subject of course to any order of transfer which may be passed by a competent authority." 5. With great respect of their Lordships I am unable to agree with the statement of law very broadly stated by them. But that apart, in a later decision of the same High Court in Ishwar Mahto v Naipal Singh, AIR 1956 Patna 280, the above passage was dissented from. After quoting the above passage Ahmad J. observed: "I, with all respect to the learned judges who decided the case in 1936 Pat. 546 (AIR V.23), feel hesitant to accept the view that a mere notification issued by the State Government under S.13(1) and 14(1), Bengal, Agra and Assam Civil courts Act 1887, altering the local limits of the jurisdiction of a Civil Court can result in the old court losing its jurisdiction even on matters already then pending before it" 6. It is unfortunate that the dissent about the decision in Dineshawari Kuer v Ram Narain Singh AIR 1936 Patna 546, was not brought to the notice of the learned Munsiff. It is unfortunate that the dissent about the decision in Dineshawari Kuer v Ram Narain Singh AIR 1936 Patna 546, was not brought to the notice of the learned Munsiff. Their Lordships of the Supreme Court who had occasion to deal with the question in Ramanna v Nallaparaju, AIR 1956 SC 87 , observed:- "And it is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject matter thereof being transferred subsequently to the jurisdiction of another court". It therefore follows that the Munsiff's court, Parappanangadi retains jurisdiction to pass the final decree in O. S. 392 of 1938 on its file. 7. O.20, R.18 C. P. C. dealing with the decree in suit for partition of property or separate possession of a share therein leads:- "Where the court passes a decree for the partition of property or for the separate possession of a share therein, the court may if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of several parties interested in the property and giving such further directions as may be required." 8. The above rule makes it clear that it is not obligatory for a court to pass a preliminary decree in a suit for partition. It is also necessary to note that the rule does not insist on the filing of an application for passing a final decree. The position is well settled that the passing of a preliminary decree does not finally dispose of the suit and the suit must be deemed to be pending until the final decree is passed. It has been stated by their Lordships of the Privy council in Lachmi Narayan v. Balamakund AIR 1924 PC 198 , that after a preliminary decree in a partition suit was passed it is not competent to the court to dismiss the suit subsequently. (The filing of an application for passing a final decree in a suit where a preliminary decree has been passed under O.20, R.18 C. P. C. is therefore intended merely as a reminder to the court where the suit is pending to post the case for taking further steps necessary for the passing of a final decree. Can such an application be made to the Manjeri court where the suit is not pending ? Can such an application be made to the Manjeri court where the suit is not pending ? The effect of filing the application I in the Manjeri Munsiff's court is to request that court to continue a suit pending in the Munsiff's court Parappanangadi and finally dispose of the same by passing a final decree. The jurisdiction of a court to pass a final decree will depend upon the pendency of the suit and not whether the court has territorial jurisdiction over the subject matter of the application for passing the final decree. The courts below concerned themselves more about the jurisdiction of the court to deal with I. A. 109 of 1966 and not with the jurisdiction of a court to pass a final decree in a suit pending in another court. 9. The question to be dealt with in my view is therefore direct and simple, viz. what is the jurisdiction of the Munsiff's court, Manjeri to deal with a suit which is pending in the Parappanangadi Munsiff's court. The cause title in I. A. 109 of 1966 filed in the Munsiff's court, Manjeri is in these terms: "Manjeri Munsiff's court. O. S. 392 of 1938 in the Parappanangadi Munsiff's court. I. A. No. 109 of 1966" The reason given in the application for filing the same in the Manjeri Munsiff's court is because of the location of the properties to be partitioned in the territorial jurisdiction of the court. The courts below have not stated that the Munsiff's court Parappanangadi, has no jurisdiction to dispose of I. A. 109 of 1966, when it was filed in the Munsiff's court, Manjeri. It is not possible for both courts to deal with the application unless it be if the pendency of suit is not the criterion - that the properties farming the subject matter of the application are within the territorial jurisdiction of both the courts: 10. In J. Namboodiripad v. Chandrasekharan Nair 1964 KLT 690 the question discussed was whether a court which passed a decree for sale of immovable property lost its jurisdiction to sell the same in execution because of subsequent transfer of that property to the territorial jurisdiction of another court. In J. Namboodiripad v. Chandrasekharan Nair 1964 KLT 690 the question discussed was whether a court which passed a decree for sale of immovable property lost its jurisdiction to sell the same in execution because of subsequent transfer of that property to the territorial jurisdiction of another court. Velu Pillai, J. held that notwithstanding the re allotment of the property to the jurisdiction of the Trivandrum court from the Nedumangad court which passed the decree the jurisdiction of the latter court to sell the property in execution is not in any way affected. If the Parappanangadi Munsiff's court has not lost its jurisdiction to deal with the suit for passing the final decree what is the principle for upholding the jurisdiction of the Manjeri Munsiff's court to pass the final decree in O. S. 392 of 1938 pending in the Munsiff's court, Parappanangadi. No principle of law was brought to my notice. In view of the location of the property covered by the decree within the territorial jurisdiction of another court the court which passed the decree can transfer the execution application to that court for the sale of the property covered by the decree. But that does not mean that the court which passed the decree has lost its jurisdiction or competency to sell the property. In this connection let me consider these suits which were pending disposal in the Munsiff s court, Parappanangadi but the subject matter of which was transferred to the jurisdiction of the Munsiff's court. Manjeri because of the Government notification in question. Will it be possible for the parties in those suits to file application for further steps or for orders for appointment of receiver, injunction attachment etc. in the Munsiff's court, Manjeri. The counsel for the plaintiff did not demur to the proposition that those applications and any further steps necessary for the final disposal of the suit have only to be taken in the Parappanangadi Munsiff's court. I do not find any difference in principle in cases in which preliminary decrees have been passed by the Parappanangadi court even prior to the notification and suits are pending for passing final decrees. I do not find any difference in principle in cases in which preliminary decrees have been passed by the Parappanangadi court even prior to the notification and suits are pending for passing final decrees. I have therefore no hesitation to hold that the Parappanangadi Munsiff's court alone has jurisdiction to pass the final decree in O. S. 392 of 1938 on its file and I. A. 109 of 1966 should have been filed in that court. The Manjeri Munsiff's court has no jurisdiction to deal with I. A. 109 of 1966 and pass a final decree in the suit. 11. The learned counsel for the plaintiff then submitted relying on S.150 C. P. C. that in view of the Government notification referred to, there has been a transfer of business from the Munsiff's court, Parappanangadi to the Munsiff's court, Manjeri and therefore the latter court has jurisdiction to pass the final decree in the suit. S.150 C. P. C. reads: "Save as otherwise, provided, where the business of any count is transferred to any other court, the court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this code upon the court from which the business was so transferred" 12. In my view, the above provision cannot be of any assistance to the plaintiff. The result of alteration of the territorial jurisdiction of the Parappanangadi Munsiff's court by the notification referred to and placing the same within the jurisdiction of the Manjeri Munsiff's court will not be a transfer of the business of the former court to the latter court. A mere transfer of jurisdiction over certain properties of a court to another court will not be a transfer of business within the meaning of S.150 C. P. C. On the other hand, if a particular court is abolished and the territorial jurisdiction of that court is transferred to either one court or to different courts there will be a transfer of business of that court within the meaning of S.150 C. P. C. Despite the readjustment of territorial jurisdiction the Parappanangadi Munsiff's court has been disposing of suits whose subject matter were transferred to the Munsiff's court, Manjeri. The effect of the notification is only that all original suits or proceedings relating to properties transferred to the territorial jurisdiction of the Munsiff's court Manjeri have to be instituted in that court. I am aware of the decision in Abraham v. Kalloor Desiga Bank Ltd. 1952 KLT 294 where a Division Bench of the Travancore Cochin High Court in dealing with S.114 of the Travancore C. P. C. which corresponds with S.150 of the C. P. C. observed: "By the transfer of territorial jurisdiction from one court to another all the powers of the first court are automatically transferred to the transferee court. The provisions of S.114 (Travancore C.P.C. which corresponds to S.150 of the Indian C.P.C.) are mandatory in this respect. It is laid down in that section that where the business of any court is transferred to any other court, the latter court shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under the Code upon the court from which the business is so transferred. When a portion of the territorial jurisdiction of the Changanacherry Munsiff's court was transferred to the Thiruvella Munsiff's court, the business of the Changanacherry Munsiff's court, pertaining to such territorial jurisdiction has become transferred to the Thiruvella Munsiff's court." 13. With great respect to their Lordships I do not agree with their reasoning or the conclusion. On the other hand, a Special Bench of the Madras High Court pointed out in Ramier v Muthu Krishna AIR 1932 Madras 418, that unless the language of a High court notification effecting the change of venue is plain a notification effecting a change of jurisdiction for the future cannot be interpreted as effecting a transfer of past business under S.150, C.P. C. In Muthkumara , Pillai v Thirunarayana Pillai, AIR 1932 Madras 260, a single Judge of the Madras High Court pointed out that S.150 C.P.C. is intended to apply not merely to cases where there is a judicial transfer of specific business but is in terms wide enough to authorise the court to which the area has been transferred including a fortiori the business not directly depending on territorial jurisdiction to entertain at first instance any application which might have been made to the court which passed the decree. In the case before the learned judge the court which passed the decree was abolished and the execution petition was filed in the court to which the business of the court abolished was transferred. It is therefore a clear case to which" S.150 C. P. C. will apply and the case is distinguishable on facts. The decision in Ramier v. Muthu Krishna AIR 1932 Madras 418, has been followed in Venkamamidi Balakrishnayya v Nannapaneni Linga Rao AIR 1943 Madras 449. To the same effect is the decision of B. K. Mukherjea and Biswas, JJ. in Masrab Khan v. Debnath Mali AIR 1942 Calcutta 321 It is also necessary to mentioned that there are earlier decisions of the Calcutta High Court taking a different view. Though this conflict of opinion was noted by their Lordships of the Supreme Court in Ramanna v. Nallaparaju AIR 1956 SC 87 , it was not resolved. In my opinion the interpretation of S.150 C. P. C. is correctly stated in Rameir v Muthu Krishna AIR 1932 Madras 418, and Masrab Khan v. Debnath Mali AIR 1942 Calcutta 321 and has to be accepted. 14. In dealing with the scope of S.150, C. P. C. a full bench of the Punjab High Court in Mehar Singh v. Kasturi Ram AIR 1962 Punjab 394, pointed out thus: "The Government notification under which boundaries have been altered is not before us. It was urged on behalf of the decree holder that where territories are altered in the present case it must be assumed that the business of that court is also transferred to the court to which the territory has been attached. I am unable to accept this contention. It is impossible to hold that the transfer of territories is proof per se of the transfer of business of the courts concerned vide inter alia AIR 1932 Mad 418 (SB) It is a question of fact in each case whether at the time of transfer of territories the business of the courts has or has not been transferred" I am therefore of the view that there has not been any transfer of business of the Parapanangadi Munsiff's court even with reference to the area transferred to the Manjeri Munsiff's court. Even if the question were to turn on an interpretation of the notification it cannot be contended that there has been any transfer of business from the Parapanaugadi court to the Manjeri court. The said notification reads thus: "In exercise of the powers conferred by S.5 and 10 of the Madras Civil Courts Act 1873 (Act III of 1873) the High court of Kerala hereby directs that with effect from the 1st day of January 1957, the Dist. Munsiff's courts specified in column (2) of the Schedule hereto attached, of the (Judicial) Districts specified in column (1) thereof, shall be held at the place specified in column (3) and shall have jurisdiction over the local limits specified in column (4)" 15. The above notification therefore cannot assist the plaintiff. 16. It was then submitted on behalf of the plaintiff that the final decree is not in any way vitiated on account of any total lack of inherent jurisdiction in the Munsiif's Court, Manjeri to pass the same as the subject matter are on the relevant date within the territorial jurisdiction of that court. According to the learned counsel there is only an irregular assumption of jurisdiction by the Manjeri Court and the 12th defendant must be deemed to have waived the defect of jurisdiction. In my view there cannot be any scope for such an argument if it is borne in mind that the jurisdiction to be considered is the one to pass the final decree in a suit pending in another court. But since the learned counsel relied on the decisions in Venkammamidi Balakrishnayya v. Nanapaneni Linga Rao AIR 1943 Madras 449, and Ramanna v Nallaparaju AIR 1956 SC 87 , for the proposition he advanced I shall therefore not leave this part of the case without examining them. 17. In Venkamamidi Balakrishnayya v Nannapaneni Linga Rao AIR 1943 Madras 449 a final decree for sale was passed on 3rd October 1927 by the Subordinate Judge of Bapatla. The territorial jurisdiction in respect of the properties included in the decree was transferred to the new subordinate Judge's court started at Tenali effect from 1st August 1930. The execution petition was filed in the sub court, Tenali. The learned judges held that the Tenali sub court could not execute the decree unless it was transferred to that court for execution under S.39 C. P. C. by the Bapatla sub court. The execution petition was filed in the sub court, Tenali. The learned judges held that the Tenali sub court could not execute the decree unless it was transferred to that court for execution under S.39 C. P. C. by the Bapatla sub court. Since the defendant did not raise any objection to jurisdiction at the early stage, the learned judges found on an interpretation of S.39 C. P. C. that it is only a case of mere irregular exercise of jurisdiction and the defendant must be deemed to have waived the same. Krishnaswami Ayyangar J. observed:- "There can be no doubt that after the transfer of territorial jurisdiction to the Tenali sub court, it is that court that had the jurisdiction over the properties. S.39 which empowers the court which passed the decree to send it for execution to another court, states that this procedure may be adopted if the decree directs the sale or delivery of immovable property outside the local limits of the jurisdiction of the court which passed it, that is to, say, the transfer of the decree for execution to another court is permitted if court in which the property directed to be sold or delivered is situate within the territorial jurisdiction of that other court. We consider that the true effect of S.39 is to recognise the transferee court as having inherent jurisdiction, to sell or deliver properties situate within its territorial limits, but only that the jurisdiction is to be invoked by the machinery provided by the section. From this it follows that the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction by the Tenali Sub court when proceedings were commenced in it, but that objection not having been taken in the first instance, the judgment debtor (the appellant) must be held to have waived it" In Ramanna v Nallaparaju AIR 1956 SC 87 , the facts are almost similar and Venkitarama Ayyar J. followed the decision in Venkamamidi Balakrishnayya v Nannapaneni Linga Rao AIR 1943 Madras 449, observed: "....... the present case is governed by the principle laid down in ..... ." Balakrishnayya v. Linga Rao AIR 1943 Madras 449. the present case is governed by the principle laid down in ..... ." Balakrishnayya v. Linga Rao AIR 1943 Madras 449. It was held therein that the court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings." The submission of the learned counsel for the plaintiff relying on the above decisions was that since the properties forming the subject matter of I. A. 109 of 1966 were within the jurisdiction of Manjeri Munsiff's court there was no inherent want of jurisdiction in that court and therefore the final decree and judgment are vitiated only by an irregular assumption of jurisdiction. In my view, the submission of the learned counsel has no merit, and cannot be accepted. The question to be decided in the second appeal is not whether the Munsiff's court, Manjeri has jurisdiction to deal with I. A. 109 of 1966 but whether it has power to pass a final decree in the suit pending in the Parappanangadi Munsiff's court. If the code has prescribed for the filing of an application for passing the final decree then the principles of the decisions based on S.39 of the C. P. C. can be invoked and I. A. 109 of 1966 can be sustained on the ground that the properties to be divided are within the jurisdiction of the Manjeri court. If at least it is possible to treat I. A. 109/66 as an original proceeding independent of the suit in the munsiff's court, Parappanangadi, it can be held that the Manjeri court acted with jurisdiction in passing the final decree. So long as there is no order transferring O. S. 392 of 1938 from the file of the Munsiff's court, Parappanangadi, to that of the Munsiff's court, Manjeri, the former court alone has the power to pass the final decree. There are not even circumstances to imply an order of transfer. I am therefore of the view that the final judgment and decree are entirely without jurisdiction. There are not even circumstances to imply an order of transfer. I am therefore of the view that the final judgment and decree are entirely without jurisdiction. Even if it is held that there was only irregular assumption of jurisdiction by the Manjeri court in passing the final decree, the decision in Venkamamidi Balakrishnayya v Nannapaneni Linga Rao AIR 1943 Madras, 449 and Ramanna v Nallaparaju AIR 1956 SC 87 , cannot help the plaintiff as the question of jurisdiction was raised by the 12th defendant in the trial court at the earliest stage and also in the lower appellate court. But the plaintiff was persistent in continuing the application in the Manjeri Munsiff's court. It is therefore not necessary to consider the other points raised. 18. In these circumstances, I set aside the decision of the courts below and allow the appeal dismissing I.A. 109 of 1966 in O. S. 392 of 1938. But I direct the parties to bear their costs throughout.