BHUPENDRA DAMJIBHAI TANK v. RENU BALWANT MARU
Rejection of Partition Plaint under Order VII Rule 11 for Failure to Obtain Mandatory Prior Leave under Clause XII of Letters Patent for Properties Situated Outside Territorial Jurisdiction.
Court: Bombay High Court
Citation: 2026:BHC-OS:4864
Decision Date: 23-02-2026
List of Laws
Code of Civil Procedure, 1908; Clause XII of the Letters Patent of the High Court of Bombay; Hindu Succession Law - Partition; Suit for Land - Jurisdictional Principles
- Facts: The Plaintiff filed a suit for partition and separate possession of various ancestral movable and immovable properties left by her deceased father. The schedule of properties included assets situated within the territorial jurisdiction of the Bombay High Court (at Malad and Bandra) and properties situated outside its jurisdiction (in Nagpur, Maharashtra, and Bhavnagar, Gujarat). The Defendants filed an interim application seeking rejection of the plaint on the ground that the suit was a "suit for land" and the Plaintiff had failed to obtain prior leave of the Court under Clause XII of the Letters Patent, which is a mandatory requirement when a portion of the subject-matter land is situated outside the Court's local limits.
- Procedural Posture: The matter came before the High Court of Judicature at Bombay (Ordinary Original Civil Jurisdiction) by way of an Interim Application filed by Defendant Nos. 1, 3, and 4 under Order VII Rule 11 of the Code of Civil Procedure, 1908.
- Issue: Whether a suit for partition of immovable properties constitutes a "suit for land" under Clause XII of the Letters Patent; whether leave of the Court is a condition precedent for such a suit when properties are situated both within and outside the jurisdiction; and whether the failure to obtain such leave necessitates the rejection of the entire plaint.
- Holding: Yes, the suit was rejected. The Court held that a suit for partition of immovable property is a "suit for land" and obtaining leave under Clause XII of the Letters Patent is a mandatory condition precedent. In the absence of such leave, the Court lacks jurisdiction over properties outside its limits, and since a suit for partial partition is not maintainable in law, the entire plaint must be rejected.
- Reasoning: The Court relied on the Division Bench judgment in "Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass", which established that partition suits involving immovable property are "suits for land". Under Clause XII of the Letters Patent, if the entire land is not situated within the jurisdiction, leave must be obtained before the institution of the suit. This leave is a condition precedent and cannot be granted post-facto. Although some properties were within the jurisdiction, the Court observed that a suit for partition must include all joint properties. Since the Court could not exercise jurisdiction over the outside properties due to the lack of leave, entertaining the suit for only the remaining properties would result in a "suit for partial partition", which is legally impermissible. Consequently, the defect of jurisdiction for a part of the claim, coupled with the rule against partial partition, rendered the entire suit barred by law under Order VII Rule 11.
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