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.
