Aravinda Raja vs D. Aravindakshan and Another

P. Bhavadasan, J.—The plaintiff in OS 1065 of 2007 before the Sub Court, Ernakulam, who suffered an order to have the plaint returned to him under O.7 R. 10(a) for presentation before the proper Court, is the appellant. Sri. Aravindakshan and Sudha Syamala had two sons, Aravinda Rana and Aravinda Raja. Aravinda Rana predeceased his parents and left behind his wife Deepa and son Adithya Rana. Sudha Syamala is also no more.

It appears that Sri. Aravindakshan gifted two items of property to the plaintiff in the suit as per gift deed No. 25/2007 dated 05/01/2007 of Paravur Sub Registry. One of the items of the property had an extent of 2.80 Ares in Sy. No. 310/12 situated in Kottappuram Village, Kollam Taluk. The second item had an extent of 4.96 Ares comprised in Sy. No. 145/13A of Edappally South Village, Ernakulam. In pursuance to the gift, it is alleged that the properties were taken possession by the donee and he has effected mutation. Ever since then, the properties have been treated as his own by the donee.

According to the plaintiff, it came to his knowledge and notice that later Sri. D. Aravindakshan, the defendant in the suit, had executed document No. 1047/2007 cancelling gift deed No. 25/2007 in favour of the plaintiff in the suit. According to the plaintiff, the said cancellation had no effect in law and does not bind him at all. Since it casts a cloud on his title, it needs to be set aside. He therefore laid the suit for the following reliefs:

a. To have Deed No. 1047/2007 dated 16/05/2007 of Paravur Sub Registry adjudged void and cancelled.

b. To pass a decree for perpetual injunction against the defendant restraining him from dealing with the scheduled properties in any manner whatsoever on the basis of Deed No. 1047/2007 dated 16/05/2007 of Paravur Sub Registry.

Since one of the properties covered by the cancellation deed is in Ernakulam, the suit was laid before the Sub Court, Ernakulam.

In the suit, the defendant, Aravindakshan, entered appearance and filed his written statement. Initially, he did not raise a question regarding the territorial jurisdiction of the Ernakulam Sub Court to try the suit. Issues were raised on 18/06/2008 and the balance court - fee was paid by the plaintiff. The defendant had filed IA 280 of 2008 under O.18 R. 16 of the CPC for his examination at his residence by a commission. That was allowed and the evidence of Aravindakshan was also taken as DW 1 on 29/06/2008. According to the plaintiff, thereafter Aravindakshan filed three interlocutory applications, namely, IA Nos. 7241 of 2008, 7242 of 2008 and 7243 of 2008. IA 7241 of 2008 was to consider and decide the question regarding the territorial jurisdiction of the Ernakulam Sub Court to entertain the suit. IA 7242 of 2008 was for raising an additional issue regarding jurisdiction. It so happened that the IAs were allowed even though counter affidavits were filed by the plaintiff. Later on Aravindakshan died and second additional defendant was brought on the party array. The second defendant being a minor, he was represented by his mother, who had remarried and had another child in that wedlock. At the instance of the defendants, IA challenging the jurisdiction of the Ernakulam Sub Court to try the case was posted for hearing.

The main contention of the defendant seems to be that the suit is one under S. 31 of the Specific Relief Act and it has nothing to do with the property. It was contended on behalf of the defendant that the cancellation deed was executed and registered in the Paravur Sub Registry office, therefore the suit being one for cancellation of the deed, has to be filed in a Court at Kollam.

The Court below accepted the contention raised by the second defendant and directed return of the plaint.

Learned counsel for the appellant challenges the above order pointing out that the Court below had not adverted to the law or the facts of the case in the proper perspective and that has resulted in miscarriage of justice. The Court below ought to have noted that two other suits pending before the Courts in Kollam were transferred to the Ernakulam Sub Court to be tried along with this suit pending in that Court, since the issues involved were the same and the decision in one suit could have impact on the other. Learned counsel also pointed out that the additional defendant himself had filed a suit before the Ernakulam Sub Court in relation to the properties covered by the gift deed in favour of the plaintiff. Learned counsel went on to contend that the reasons given for directing return of plaint cannot be justified in law and the law applied is incorrect. Learned counsel drew the attention of this Court to S. 16 and S. 17 of the CPC and pointed out that the suit as instituted is perfectly maintainable before the Sub Court, Ernakulam.

Per contra, learned counsel appearing for the respondents contended that the Court below has applied the law correctly and has come to the right conclusion. According to learned counsel, the suit does not involve determination of any right regarding any immovable property, but is only concerned with the cancellation of the cancellation deed said to have been executed by D. Aravindakshan. Therefore, according to learned counsel, S. 16 and S. 17 have no application and it is S.- 20(c) of CPC which applies. In support of his contention, learned counsel relied on the decision reported in The Malabar Industrial Company Ltd. Vs. A. John Anthraper, .

We are afraid we cannot agree with the contention taken by the respondents- in this appeal. To appreciate this issue, some facts may be necessary. Two suits in relation to the very same properties involved in the present suit had been filed before the Munsiff''s Court at Trivandrum and the Munsiff''s Court at Paravur. OS 222 of 2009 was filed before the Munsiff''s Court, Trivandrum and OS 40 of 2009 before the Munsiff''s Court, Paravur. According to the plaintiff in OS 1065 of 2007, those suits were based on a fabricated joint will said to have been executed by the late parents of the plaintiff in the suit. So also the second defendant had filed OS 218 of 2009 before the Ernakulam Sub Court challenging the validity of the gift in favour of the plaintiff in the suit. On a motion by the plaintiff by way of Tr. P (C) 83 of 2009, he sought transfer of the other two suits to Ernakulam Sub Court for joint trial with OS 1065 of 2007. The Division Bench of this Court, after elaborately considering the matter, directed transfer of the case pending before the Munsiff''s Court, Trivandrum and Paravur to Sub Court, Ernakulam, where OS 1065 of 2007 was pending.

The Court below seems to have been greatly impressed by the fact that the suit falls under S. 31(2) of the Specific Relief Act. According to the Court below, since the cancellation deed was executed within the jurisdiction of the Paravur Sub Registry office and since the Court at Ernakulam cannot issue a direction to that Sub Registry Office, the suit should have been filed before the Courts at Kollam. The reasoning, to say the least, is perverse.

Obviously, the Court below has not adverted to the reliefs sought for in the suit, which has already been extracted. As rightly pointed out by the learned counsel for the appellant, one fails to understand as to how the Court below could have said that no right in relation to a property is the subject matter of adjudication in the suit. In saying so, the Court below has omitted to note the second relief prayed for in the suit. Moreover, it cannot be disputed that the effect of cancelling the gift deed is that the property to which the plaintiff till then had title becomes defective.

S. 16 and S. 17 of the CPC reads as follows:

Suits to be instituted where subject - matter situate.- Subject to the pecuniary or other limitations prescribed by any law, suits--

(a) for the recovery of immovable property with or without rent or profits.

(b) for the partition of immovable property.

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property.

(d) for the determination of any other right to or interest in immovable property.

(e) for compensation for wrong to immovable property.

(f) for the recovery of movable property actually under distraint or attachment shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:

Provided that the suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Suits for immovable property situate within jurisdiction of different Courts.- Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts.

the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate:

Provided that, in respect of the value of the subject - matter of the suit, the entire claim is cognizable by such Court.

S. 20(c) reads as follows:

Other suits to be instituted where defendants resides or cause of action arises.-Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(c) the cause of action, wholly or in part, arises.

In the decision reported in Malabar Industrial Co. Ltd.''s case (supra), a totally different issue was considered. The issue considered there was regarding the question of application of S. 16 proviso. In the said suit, though a right to immovable property was involved, it was seen that the decree that could be passed in the suit could be enforced by the personal obedience. It was held that it is not necessary that the suit should be laid in the place where the property was situated. It is not possible to understand how the principle laid down in the said decision can have any application to the present case.

S. 31 of the Specific Relief Act reads as follows:

When cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury may sue to have it adjudged void or voidable; and the Court may, in its discretion so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

On going through S. 31, it is not possible to understand the logic behind the decision of the Court below that by virtue of S. 31(2) it could not be said that the Sub Court at Ernakulam can have jurisdiction to try the suit. It is extremely difficult to understand appellants to the respondent. We are informed that the entire amount is in deposit before the Court below, in these circumstances we do not think it necessary to interfere with the alternative direction to pay the present approximate value of 30 sovereigns of gold ornaments i.e., Rs. 3,60,000/- with interest and cost.