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2014 DIGILAW 4186 (MAD)

Fathima Bathool v. M. M. Zulaiha

2014-11-11

M.SATHYANARAYANAN, SANJAY KISHAN KAUL

body2014
Judgment (M. Sathyanarayanan, J.) 1. The appellant in O.S.A.No.114 of 2013 is the applicant in A.No.3640 of 2012 in C.S.No.D21717 of 2012. The appellant in O.S.A.No.339 of 2013 are the respondents 2, 3, 5 and 6/defendants 2, 3, 5 and 6 in A.No.3640 of 2012 filed by the appellant in O.S.A.No.114 of 2013/applicant/plaintiff under Clause 12 of the Letters Patent, seeking leave to institute a Suit for Partition in respect of Item Nos.1 to 3 and 6 to 19 of the plaint schedule properties, which was partly allowed granting leave to institute a Suit except in respect of Item No.19 and aggrieved by the same, has filed this appeal. The appellants in O.S.A.No.339 of 2013/respondents 2, 3, 5 and 6 in O.S.A.No.114 of 2013/defendants 2, 3, 5 and 6, aggrieved by the order granting leave to institute a Suit with regard to Item Nos.1 to 18, had filed this writ appeal. 2. Since both the appeals arise out of the order dated 07.02.2013 made in A.No.3640 of 2012, they are taken up together and disposed of by this common judgment. 3. The first respondent in the application, namely Tmt. M.M.Zulaiha is the mother of the applicant/plaintiff and respondents 2 to 4/defendants 2 to 4. Fifth respondent is the wife of the second respondent. Sixth respondent is the wife of the third respondent. Late Mr.Abdul Kasim is the husband of the first defendant and father of the plaintiff/applicant and respondents 2 to 4. 4. The appellant in O.S.A.No.114 of 2013/applicant/plaintiff has filed the Suit on the Original Side of this Court praying for partition and separate possession of 55/240 share in Item Nos.1 to 4 and 6 to 19 of the plaint schedule properties, ¼th share in Item No.5, to pass final decree by dividing the suit properties by metes and bounds as per the preliminary decree and put the plaintiff in separate possession of the share allotted to her and for mesne profits and costs. The plaint schedule properties are 19 in number and Item Nos.4 to 5 are situated at Chennai. Item Nos.1, 2 and 6 to 16 are situated at Tuticorin Town and Item Nos.3, 17 and 18 are situated at Palayamkottai, Tirunelveli District and Item No.19 is situated at Kayalpattinam, Tuticorin District. 5. A perusal of the plaint would disclose the following facts: 5.1. Item Nos.1, 2 and 6 to 16 are situated at Tuticorin Town and Item Nos.3, 17 and 18 are situated at Palayamkottai, Tirunelveli District and Item No.19 is situated at Kayalpattinam, Tuticorin District. 5. A perusal of the plaint would disclose the following facts: 5.1. According to the appellant/applicant/plaintiff, she and defendant/respondents are the natives of Kayilpattinam, Tuticorin District and in that town, there is a custom of joint family prevalent among the Muslims and as per the custom, female heirs would have predominant role in all the affairs and even after their marriage, they would continue to live along with their parents and the husband would come and live with them in their paternal home. The properties would be purchased mainly in the name of the female members and they along with their husbands would look after the family business and the properties would be purchased in the name of any of their family members to suit their convenience. The male members would take care of the outside work and deal with the property matters of the female members and all the children would have equal right over the property and it would be the responsibility of the female members to maintain their parents till their demise and thus there is a strong fiduciary relationship between the male and female members of the family both in their personal and property matters and everyone of the family member would be the trustee of the other family member in the matter of holding of the properties. 5.2. It is further averred that the society is a male dominant one in the matter of properties and the same is the case of the applicant/plaintiff and all along her father and brothers had been in predominant fiduciary relationship over her and the plaintiff used to believe and entrust everything to them till the demise of her father, namely Mr.M.S.Abdul Kasim and all the title deeds in respect of the suit properties were in the custody of the plaintiff. In the year 1987, the applicant/plaintiff married one Mr.Mohamed Ibrahim and looked after the business of his father, who was doing business in natural stones and to look after the business operations at Chennai, she came to Chennai along with her husband and staying in the second floor of Item No.5 of the suit property and the room in the third floor of the house for office purposes. 5.3. The applicant/plaint would further state that the defendants 2 and 3 had only occasionally participated in the business of their father and they are just collecting rents and utilizing the same for their own needs. The father of the applicant/plaintiff out of the income generated from family business as well his children, began to purchase various properties and for convenience sake, properties were registered in the name of different persons in the family and irrespective of the same, the properties were held in a fiduciary capacity to other family members and treated as family properties and everyone stood as trustee for their family members and the properties were managed by all and used by all. 5.4. The applicant/plaintiff would further state that except Item No.5 of the suit properties, all other items are purchased by her father, brothers and sisters out of the income generated from the family business, though the properties were registered in the name of different family members and it was done out of convenience and on the belief and confidence. Item Nos.13 to 17 of the suit properties were registered in the name of the first defendant and Item Nos.11 and 12 were registered in the name of the father of the applicant/plaintiff and Item Nos.3 and 18 were registered in the name of the father of the applicant/plaintiff and respondents 1 to 4. In the sale deed, Item No.1 of the suit properties, the name of the fifth defendant finds place and similarly in the sale deed pertains to Item No.2 of the suit properties, the name of the sixth defendant finds place and Item No.9 was registered in the name of the plaintiff and the defendants 1 and 4/respondents 1 and 4. Item No.10 was registered in the name of father of the applicant/plaintiff, Mr.M.S.Abdul Kasim and the defendants 2 and 3. Item No.10 was registered in the name of father of the applicant/plaintiff, Mr.M.S.Abdul Kasim and the defendants 2 and 3. Item No.19 was registered in the name of one Mr.M.S.Mohamed Ibrahim, who is the husband of the applicant/plaintiff and also in the name of the defendants 2 and 3 and later on, the interest of Mr.M.S.Mohamed Ibrahim was given up by a formal sale deed. 5.5. It is the specific case of the plaintiff that Item Nos.1 to 4 and 6 to 18 of the plaint schedule properties were also purchased by her father out of income earned from the family business of the plaintiff. Insofar as Item No.5 is concerned, it is the claim of the applicant/plaintiff that it was originally purchased by her grandmother by means of registered sale deed dated 07.03.1969 and she had put up superstructure in the year 1971 and during January 1989, out of her natural love and affection, she had orally gifted (HIBA) to the applicant/plaintiff and to the respondents 2 to 4/defendants 2 to 4 and during April 1989, she gave an affidavit evidencing the oral gift. 5.6. The applicant/plaintiff would state that the respondents 2 to 4/defendants 2 to 4 have joined together to defeat her claim and after the demise of her father, the second respondent forcibly occupied the room in Item No.5 of the suit properties and also plotted out Item No.19 of the suit properties, which is admeasuring 3.56 acres situated at Kayalpattinam, Tuticorin District and started proclaiming that he and his brothers are the sole owners and attempting to sell them and that apart, the second respondent/second defendant is now collecting major portion of the rents. Therefore, the plaintiff came forward to file the above said Suit for partition, separate possession and other reliefs. 6. Since the respondents 1, 2 and 5 are residents of Kayalpattinam and respondents 3, 4 and 6 are residing outside the Chennai City and further that except two items of suit properties, other items are situated at Tuticorin and Tirunelveli Districts, the applicant/plaintiff filed A.No.3640/2012 under Clause 12 of the Letters Patent, praying for leave to institute a suit for partition on the file of this Court. In the affidavit filed in support of the said application, it is averred among other things that since Item Nos.4 and 5 are situate in Chennai City, this Court is having jurisdiction to entertain the Suit and further the defendants are residing outside the territorial jurisdiction of this Court, leave is necessary. 7. The fourth respondent has filed a counter affidavit on her behalf and also on behalf of the first respondent. The second respondent has also filed a counter affidavit on his behalf and on behalf of the respondents 3 and 5, stating among other things that except two items of the suit properties, other properties are situated outside the territorial jurisdiction of this Court and also denied the stand taken by the applicant/plaintiff as regards her right over the suit properties. The second respondent, in his counter affidavit, would also state that after filing of the application seeking leave to file the suit, the applicant/plaintiff distributed public notices in his native place at Kayalpattinam, after Friday Jumma prayer, alleging that the respondents 2 and 3 is selling Item No.19 of the plaint schedule properties and she is having interest over the property. 8. The learned Judge after taking note of the averments made in the plaint, contents of the application and counter affidavits, has held that the original documents pertain to Item No.19 of the plaint schedule properties was in the possession of the applicant/plaintiff till the demise of her father and the said sale would have taken place on 21.07.2009 and also prima facie found that the said item of the suit property was purchased out of the sale proceeds of the gold jewels belonging to the applicant/plaintiff. The learned Judge further found that Document No.24 also strengthen the submission made on behalf of the applicant that Item No.19 of the suit property was independently dealt by Mr.M.S.Mohamed Ibrahim through his legal heirs and as much as the individual property of defendants 2 and 3 and having satisfied with the reasons, granted leave to the applicant/plaintiff in respect of Item Nos.1 to 8 except item No.19 and aggrieved by the said order, the applicant/plaintiff as well as the respondents 2, 3, 5 and 6, had filed these appeals. 9. 9. Mr.A.Sirajudeen, learned counsel appearing for the appellant in O.S.A.No.114 of 2013/applicant/plaintiff would contend that except Item Nos.4 and 5, the remaining items of the plaint schedule properties are situated at Tuticorin and Tirunelveli District respectively and having granted leave for those properties, ought to have granted leave in respect of Item No.19 of the suit properties also, which is situated at Kayalpattinam. Insofar as Item No.19 of the suit properties, it is the submission of the learned counsel appearing for the appellant that the reasons assigned by the learned Judge for not granting leave in respect of Item No.19, on the face of it, is unsustainable for the reason that at the time of purchase, the second respondent was aged about 25 years and the third respondent was aged about 18 years and therefore, they would not have contributed anything and the business was jointly carried out by her father, her husband's family and other family members and therefore, not granted leave in respect of Item No.19 of the suit properties and prays for interference. 10. Mr.M.Imthias, learned counsel appearing for the appellants in O.S.A.No.339 of 2013/respondents 2, 3, 5 and 6 in O.S.A.No.411/2013 would contend that except Item Nos.4 and 5 of the suit properties, admittedly all the remaining suit properties are situated far away at Tuticorin and Tirunelveli Districts and moreover except plaintiff, all other respondents/defendants are residing outside the jurisdiction of this Court and the learned Judge ought to have adopted the same analogy for remaining items of the suit properties also and in any event, if the trial of the suit is to take place at Chennai, it would definitely cause grave hardship and that the first defendant and mother of the applicant/plaintiff, being aged lady, suffering due to various ailments, she will not be in a position to come to Chennai to give evidence and hence, prays for setting aside the impugned order. 11. This Court paid its best attention to the rival submissions and also perused the materials available on record in the form of typed set of documents. 12. 11. This Court paid its best attention to the rival submissions and also perused the materials available on record in the form of typed set of documents. 12. This Court, pending of the appeal, has mooted a suggestion with regard to referring the dispute to arbitration and considering the relationship between the parties, directed the appellant and the first respondent, being daughter and mother, remain personally present in Court on 23.09.2014 at 4.00 p.m in the Chamber of the Hon'ble Chief Justice of this Court and on that day, the mother, namely Mrs.M.M.Zulaiha was not present and further time was sought to get further instructions and therefore, it was adjourned to 03.11.2014 and on that day, the learned counsel appearing for the appellants in O.S.A.No.339 of 2013/respondents 2, 3, 5 and 6 in O.S.A.No.114/2013 submitted that they were unsuccessful in settling the dispute or referring the dispute to arbitration. This Court, having noted that parties have concluded the submissions on 04.09.2014 and upon hearing the further submissions, has reserved orders on 03.11.2014. 13. The question arises for consideration in these appeals is whether the leave granted to the applicant/plaintiff in respect of Item Nos.1 to 18 is liable to be revoked? 14. Admittedly, except Item Nos.4 and 5, remaining 17 items of the suit properties are situate at Tuticorin and Tirunelvei Districts respectively. It is the submission of the learned counsel appearing for the appellant in O.S.A.No.114/2013/applicant/plaintiff that since Item Nos.4 and 5 are situated at Chennai and as per the memo of valuation, the said properties are valued at Rs.27,50,000/- and Rs.50,00,000/- respectively and further that the respondents 3, 4 and 6 are residing just outside the jurisdiction of this Court and that the second respondent is also issued with a family card with address at Chennai and so also his wife/fifth respondent, there cannot be any difficulty or impediment on their part to defend the suit effectively. 15. 15. Per contra, the learned counsel appearing for the appellants in O.S.A.No.339/2013 would contend that the first defendant is the mother of the applicant/plaintiff and respondents 2 to 4 and she is old aged and suffering due to various ailments and she cannot travel to Chennai in the event of the suit bring tried at Chennai and further that except two items, remaining items of the suit properties are at Tuticorin and Tirunelveli Districts respectively, it will be easier to try and agitate the suit either at Tirunelveli or Tuticorin and further that most of the witnesses are hailing from that places only and hence, prayed for interference. 16. It is relevant to extract Clause 12 of the Letters Patent: “12. Original Jurisdiction as to Suits: And We do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court; or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of property sued for does not exceed hundred rupees.” 17. In Vol XXXIV, 1931 The Bombay Law Reporter 236 in Devidatt Ramniranjandas v. Shriram Narayandas, the scope of Clause 12 of the Letters Patent was considered in detail. As per the above said judgment, under Clause 12 of the Letters Patent, the High Court, in exercise of its ordinary original civil jurisdiction shall be empowered to receive, try and determine suits of every description if (apart from the provisions as to suits relating to immovable property) the cause of action shall have arisen either wholly or in case the leave of the Court shall have been obtained, in part, within the local limits of the ordinary original jurisdiction. Thus, as per Clause 12 of the Letters Patent in a case in which cause of action has arisen in part only within the local limits of the original jurisdiction, it is a condition precedent to the maintenance of the Suit that the leave of the Court should have been first obtained and the condition of obtaining leave is an essential qualification of the suit. 18. In Parameswari Veluchamy and others v. T.R.Jayaraman and others [ 2002 (1) CTC 134 (DB)], the facts of the case would disclose that the appellant/plaintiff instituted a suit for partition and also contended that the Will as well as the Gift made by their father cannot be genuine. The defendants in the suit as also two of the three plaintiffs reside outside the jurisdiction of the Court and therefore, leave was sought to institute a suit under Clause 12 of the Letters Patent on the file of the ordinary original jurisdiction of this Court. The plaintiff obtained ex-parte leave and filed the Suit and the defendants had entered appearance and filed written statement and applied for revocation of leave by filing applications and the applications for revocation of leave were ordered. The leave was revoked primarily on the ground of consideration of convenience and having regard to the location of the properties that except 3 items being situated outside Chennai and that all the defendants reside outside Chennai and the documents relating to the properties being maintained outside Chennai and the witnesses had also living outside Chennai, the Division Bench of this Court, after taking into consideration a catena of decision, has held as follows: “20. The suit brought by the plaintiffs though it is in part a suit for land situated within the jurisdiction of this Court, is primarily a suit for a share in the properties which are situated outside the jurisdiction of the Court, all the defendants being residents outside and carrying on business outside the jurisdiction of this Court. The suit is not similar to one wherein a person entitled to a share in the joint family property can bring a suit in this Court for a share in the joint family property by saying that some of the joint family properties are situated within the jurisdiction of this Court. According to the plaintiffs own case there is no coparcenary property. According to the plaintiffs own case there is no coparcenary property. In the plaint there is no averment regarding the properties in Madras mentioned in the plaint schedule by whom it was acquired, when it was acquired, mode of acquisition, consideration paid therefor etc. No document in relation to these properties was filed with the plaint. On the other hand the documents produced by the plaintiffs clearly show that those three items were purchased by some of the defendants nearly two decades after the demise of their father in whose estate the plaintiffs claim a share. 21. Moreover, consideration of convenience are very germane while determining the question of grant, refusal or revocation of leave. Almost all the properties, the documents relating thereto and the witnesses who have knowledge of the same are outside the city of Madras.” Ultimately, the Division Bench of this Court dismissed the appeal, confirming the order revoking the leave granted. 19. A learned Judge of this Court in the decision in South Indian Bank Ltd., v. M.M.T.C. Ltd., [(2007 ) 5 MLJ 303] has taken into consideration the above cited decision as well as the decisions rendered by the Hon'ble Supreme Court of India and in para 22 held as follows: “22. There are two strong reasons, in addition to what is stated above, for me to revoke the leave and they are as follows: (a) In an application for leave to sue, the Court is concerned about its own jurisdiction to entertain the suit. At that stage, the Court is obliged to address itself to the question of jurisdiction, only with reference to the averments contained in the plaint, the cause of action pleaded, the valuation and reliefs prayed for. If the plaintiff herein had not impleaded the defendants 2 to 4 and if he had not sought for any decree against the defendants 2 to 3 even in the first instance, the plaintiff need not have sought leave at all to institute the suit, since Clause 12 would have come into play in all force. The plaintiff was constrained to seek leave, de hors the fact that the first defendant Bank has an Office here, only because of the impleadment of the defendants 2 to 4 and the relief sought for against them. The plaintiff was constrained to seek leave, de hors the fact that the first defendant Bank has an Office here, only because of the impleadment of the defendants 2 to 4 and the relief sought for against them. Therefore, the plaint, as it originally was, at the time of seeking leave to sue, will have to be looked into for the purpose of deciding the question as to whether the leave should be revoked or not. If the plaint as on the date of its institution is examined, it contained a prayer for relief against three out of four defendants, who are residents of Coimbatore and against whom, no part of the cause of action arose at Chennai. Therefore, the question of jurisdiction cannot now be decided post facto, after permitting the plaintiff to delete the defendants 2 to 4 and to give up the claim made against them. In other words, the contention now raised with regard Clause 12, does not have legs to stand on its own, in the light of the plaint as it was originally made. It is only because of this that the plaintiff has come up with a pair of crutches in the form of the applications for giving up the defendants 2 to 4, so as to make the contention stand up. b. It is not in every case that this Court is bound to grant leave. The Court should also taken note of “Forum Convenience” as between the parties to the litigation. If, irrespective of the place where the entire cause of action arose, a suit can be instituted against a person in any place where he has business establishments, it would lead to disastrous consequences. The first defendant Bank has branches all over India. The present suit, if the contention of the learned counsel for the plaintiff is accepted, could be instituted in any Court from Kashmir to Kanyakumari, wherever the first defendant has a branch, despite the entire cause of action for the suit arising only at Coimbatore. It is only in order to avoid such unintended consequences that the Court is empowered to refuse leave, even if it has jurisdiction to try a suit. This is how the concept of forum convenience developed.” 20. It is only in order to avoid such unintended consequences that the Court is empowered to refuse leave, even if it has jurisdiction to try a suit. This is how the concept of forum convenience developed.” 20. In the considered opinion of the Court, the judgment rendered by the Division Bench of this Court reported in [ 2002 (1) CTC 134 ] is squarely applicable to the facts of this case. The relevant paragraphs of the plaint extracted in the earlier paragraphs would disclose that the applicant/plaintiff primarily proceeds on the footing that the cause of action of the suit primarily arose at Chennai on account of the location of Item Nos.4 and 5 of the suit properties and that the remaining item properties were acquired out of the income earned out of business done by the father of the applicant/plaintiff. In para 17 of the plaint, which deals with cause of action, the applicant/plaintiff has averred as follows: “17. The cause of action for the suit arose partly in Chennai where item 4 and 5 of the suit properties are situated which are within the jurisdiction of this Hon'ble Court and on and from 1st Jan, 2012 when the plaintiff has been demanding the defendants to partition the suit properties and on 20th Apr, 2012 when the defendants 2 and 3 had executed a deed of gift in respect of a portion of the item 19 of the suit properties and thus the suit is within the period of limitation.” 21. Even as per the plaint averments, except Item Nos.4 and 5 of the plaint schedule properties, remaining sale deeds are executed at the respective jurisdictional Sub-Registrar Offices and moreover the respondents 1, 2 and 5 are residing at Kayalpattinam and the respondents 3, 4 and 6 are residing outside the jurisdiction of this Court i.e., on the outskirts of Chennai. In view of the fact that 17 items of the suit properties out of 19 items are situated at Tuticorin and Tirunelveli Districts respectively, which are far away from Chennai and the witnesses, who have spoken about the contents of the document, had knowledge with regard to the oral gift made by the applicant/plaintiff, hail from those places, the applicant/plaintiff ought to have instituted the suit either at Tuticorin, where major portion of the suit properties are situated. It is to be pointed out at this juncture that the public notice issued by Plaintiff warning the public not to purchase the properties, she has given her address at Door No.64, Ambala Main Kagar Street, Kayalpattinam. Even if the suit is decreed and after passing of final decree, further proceedings have to take place at Kayalpattinam and Palayamkottai and on that ground also, the suit is to be laid there only. 22. The learned counsel appearing for the appellant in O.S.A.No.114 of 2013/applicant/plaintiff, during the course of arguments, made a submission that Item No.19 of the suit properties admeasuring 3.56 acres situated at Kayalpattinam has been divided into many plots and very many sale deeds have been executed in favour of the purchasers of individual plots and on that ground also, the Suit is to be instituted at Tuticorin. The learned counsel appearing for the appellant in O.S.A.No.114/2013 made a faint attempt by submitting that except Item Nos.4 and 5, which are valuable properties situated at Chennai, other properties only have a marginal value. However the memo of valuation enclosed at para 18 of the plaint would disclose that other items of the suit properties are also valued on the higher side for the purpose of Court fee, especially Item No.19, which is valued at Rs.2,40,00,000/-and 55/240 share of the property works out to Rs.55,00,000/- and therefore, on that ground also, leave granted to institute the suit is liable to be revoked. 23. In the result, O.S.A.Nos.339 of 2013 is allowed and the fair and decreetal order dated 07.02.2013 made in A.No.3640/2012 in C.S.No.D21717 of 2012 is set aside and the leave granted to institute the suit on the file of this Court, is revoked. The Registry is directed to return the plaint along with annexures to the learned counsel appearing for the appellant in O.S.A.No.114 of 2013/applicant/plaintiff within a period of six weeks from the date on which copy of the order is made ready. The appellant in O.S.A.No.114 of 2013 is granted four weeks time thereafter, to present the plaint before the proper forum at Tuticorin. Consequently, O.S.A.No.114 of 2013 is dismissed. No costs.