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Allahabad High Court
Shankar Dial vs Muhammad Mujtaba Khan And Ors. on 27 May, 1896
Equivalent citations: (1896) ILR 18 All 400
Author: B A Aikman
Bench: Banerji, Aikman


JUDGMENT

Banerji and Aikman, JJ.

1. This appeal arises out of a suit brought by Shankar Dial, the

appellant, who purchased from Musammat Afsari Begam, the wife of

Sadar-ud-din Khan, deceased, a portion of the dower debt alleged by her

to be due out of her husband’s estate, and her one-fourth share in that

estate as heir to her deceased husband, by a sale-deed, dated the 1st

of January 1893. He claimed Rs. 30,000 on account of dower, and he

further claimed a one-fourth share in certain movable and immovable

property alleged to have been left by the deceased Sadar-ud-din. The

lower Court dismissed the claim in regard to Rs. 25,000 out of the

amount of the dower claimed and decreed the rest of the claim. This

appeal has reference only to the dower debt.

2. On behalf of the respondents objections have been taken under

Section 561 of the Code of Civil Procedure, but the only objection

argued by Mr. Ghulam Mujtaba is that the Court below had no

jurisdiction to entertain the claim in so far as it related to the

dower debt. This objection was raised in the Court below, but was

overruled by that Court. The grounds on which the objection is founded

are, that the claim for dower is a claim based on a contract; that the

contract in this case was not entered into within the jurisdiction of

the Court of the Subordinate Judge of Bareilly; that it was not to be

performed within the limits of the jurisdiction of that Court; that the

defendants do not, and did not at the time of the institution of the

suit, actually and voluntarily reside or carry on business or

personally work for gain within the jurisdiction of that Court, and

that under Section 17 of the Code of Civil Procedure the suit could not

be instituted in the Court of the Subordinate Judge of Bareilly. The

Subordinate Judge was of opinion that the objection was untenable,

inasmuch as one of the defendants had a temporary residence in the

Bareilly district, and under Section 44 of the Code of Civil Procedure

the Court had granted leave to the plaintiff to unite different causes

of action in the same suit.

3. The learned Counsel who has appeared here for the appellant does

not support the decree of the Court below on the ground set forth in

the judgment of the learned Subordinate Judge. Indeed the ground cannot

be sustained. The authority of a Court to grant permission to a

plaintiff to unite different causes of action in the same suit

presupposes the existence of jurisdiction in the Court to entertain

suits founded on all those causes of action. The learned Counsel for

the appellant takes his stand on Clause (d) of Section 16 of the Code

of Civil Procedure. He argues that although the plaintiff might or

might not succeed in the claim advanced by him, his claim as put in the

plaint was one for the sale of the movable and immovable property of

Sadar-ud-din, deceased, in satisfaction of the dower debt, and was

therefore a suit for a declaration of right to or interest in immovable

property, within the meaning of the section mentioned above.

4. We are unable to accede to this contention. It is nowhere alleged

in the plaint that the plaintiff’s assignor had a charge for her dower

debt on any property of her husband, and the prayer in the plaint

amounted to no more than a mere claim to recover a money debt out of

the assets of a deceased debtor. The plaint contains no prayer for the

establishment and. enforcement of a charge. All that it asks for is

that a decree “may be passed against all movable and immovable

property, left by Sadar-ud-din Khan, deceased, and that the said amount

may be caused to be paid to the plaintiff by attachment and sale of the

said property.” As we understand the plaint, the prayer is simply for

the money claimed and for the recovery of that money by execution in

the ordinary course by attachment and sale of the property of the

deceased, and not to enforce the claim personally against the

defendants. In no sense can such a case be regarded as a suit for a

declaration of a right to or interest in immovable property within the

meaning of Clause (d) of Section 16 of the Code of Civil Procedure. In

our judgment the Subordinate Judge of Bareilly had no jurisdiction to

entertain the claim for the dower debt and on that ground the claim for

dower ought to have bean dismissed.

5. We allow the objection under Section 561 of the Code of Civil

Procedure and set aside so much of the decree of the Court below as

decrees to the plaintiff, Rs. 5,000 on account of the dower debt. The

result is that the appeal, which relates only to the dower debt, must

fail and it is hereby dismissed with costs. The objections under

Section 561 are allowed to the extent indicated above and quoad ultra

they are dismissed. The respondents will pay and receive costs

proportionate to their failure and success.


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