When Does a Partition Suit Need Leave Under Clause XII

Vikrant D. Shetty

Mar 29

10 min read

Updated: Aug 26

The Bombay High Court held on February 23, 2026 that a suit for partition of properties situated partly within and partly outside its territorial jurisdiction is a suit for land, and that prior leave under Clause XII of the Letters Patent must be obtained before such a suit is instituted, failing which the plaint is liable to rejection under Order VII Rule 11 of the Code of Civil Procedure, 1908. Justice Firdosh P. Pooniwalla held that this leave is a condition precedent that cannot be obtained after institution, and that a suit cannot be salvaged by restricting it to properties within jurisdiction because partial partition is not permissible.

When Does a Partition Suit Need Leave Under Clause XII

Facts of the Case

The Plaintiff instituted a suit seeking, inter alia, a declaration that certain properties were ancestral properties left behind by her deceased father and that she was entitled to a 1/7th share therein. The Plaintiff also sought partition of the suit properties by metes and bounds and delivery of her share. She further sought declarations that several agreements entered into by certain defendants with third parties were not binding on her, along with consequential reliefs including deposit of sale proceeds corresponding to her alleged share.

The properties forming the subject matter of the suit comprised a mix of movable and immovable assets, including land situated at Dindoshi in Mumbai, agricultural land in Wardha, property in Gujarat, residential flats in Bandra, as well as bank accounts, deposits, and movable assets.

The Applicants, who were original Defendant Nos. 1, 3 and 4, filed an Interim Application under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of the plaint on the ground that the suit was barred by law. The principal contention was that the suit was a suit for land and involved immovable properties situated partly outside the territorial jurisdiction of the Bombay High Court, and that no leave under Clause XII of the Letters Patent had been obtained prior to institution of the suit.

Submissions

On behalf of the Applicants, Mr. Mayur Khandeparkar submitted that the present suit was in substance a suit for partition of immovable properties and therefore constituted a suit for land. He submitted that since several of the properties were situated outside the territorial jurisdiction of the Bombay High Court, the suit could not have been instituted without obtaining prior leave under Clause XII of the Letters Patent. Counsel further argued that such leave must be obtained prior to institution and cannot be granted subsequently. Reliance was placed on precedents including the decisions in Shiv Bhagwan Moti Ram Saraoji and Vishram Parbat HUF as well as the Supreme Court judgment in Adcon Electronics Pvt. Ltd.

Mr. Vishwajit Sawant, learned Senior Counsel appearing for Defendant No. 7, supported these submissions and argued that even if some properties were within jurisdiction, leave under Clause XII was still mandatory where part of the immovable property lay outside jurisdiction.

In response, Mr. Rohan Cama, learned counsel for the Plaintiff, opposed the application and contended that the plaint could not be rejected under Order VII Rule 11 of the CPC unless the entire suit was barred by law. He argued that several reliefs pertained exclusively to properties within the jurisdiction of the Court, particularly the Malad property, and that at least those reliefs were maintainable.

Mr. Cama further submitted that the present suit was not a suit for land. According to him, the primary relief was a declaration of share in the estate and partition thereof, not adjudication of title or possession of land. He argued that any issue relating to land was incidental, and that the Plaintiff might ultimately receive her share in monetary terms. This, he said, negated any requirement to treat the suit as one for land.

It was also submitted that where all defendants reside within the jurisdiction of the Court, Clause XII permits institution of the suit without leave, provided the suit is not one for land. He further argued that failure to obtain leave would, at best, restrict the Court from granting relief in respect of properties outside jurisdiction, but would not render the entire plaint liable to rejection.

In rejoinder, Mr. Anil Anturkar, learned Senior Counsel for the Applicants, submitted that the reliefs clearly included partition and delivery of possession, thereby making the suit a suit for land. He contended that in the absence of leave, none of the reliefs could be granted, and that permitting the suit to proceed only for certain properties would amount to partial partition, which is impermissible.

Ratio / Judgment

The Court held that the suit, which sought partition of immovable properties and delivery of the Plaintiff’s share, was unequivocally a suit for land. Relying on binding precedent, including the Division Bench judgment in Shiv Bhagwan and the Supreme Court decision in Adcon Electronics, the Court reiterated that a suit involving adjudication of rights in immovable property or seeking possession thereof falls squarely within the category of a suit for land.

The Court emphasised that the prayers in the plaint included partition by metes and bounds and handing over of the Plaintiff’s share, which necessarily involved determination of rights in immovable property and delivery of possession. On this basis, the Court rejected the Plaintiff’s contention that the suit was not one for land.

Having held that the suit was a suit for land, the Court examined whether leave under Clause XII of the Letters Patent was required. The Court noted that part of the immovable properties were situated outside the territorial jurisdiction of the Bombay High Court.

The Court held that in such cases, it is well settled that leave under Clause XII must be obtained prior to institution of the suit. The Court relied on established jurisprudence to hold that where land is situated partly within and partly outside jurisdiction, the Court can entertain the suit only if such leave is obtained.

The Court rejected the argument that residence of the defendants within jurisdiction would dispense with the requirement of leave. It clarified that this consideration applies only to suits other than suits for land.

The Court further held that leave under Clause XII is a condition precedent and must be obtained before institution of the suit. Relying on the decision in Quadricon Pvt. Ltd., the Court held that such leave cannot be granted after the plaint has been filed and admitted.

Accordingly, the absence of prior leave was held to be a fatal defect.

Conclusion

The Bombay High Court reaffirmed that a partition suit involving immovable properties is a suit for land and that prior leave under Clause XII of the Letters Patent is mandatory where part of the property lies outside jurisdiction. The judgment makes clear that failure to obtain such leave is not a curable defect, and that the suit cannot be salvaged by restricting it to properties within jurisdiction because of the bar on partial partition. The plaint was accordingly rejected in its entirety under Order VII Rule 11 of the CPC. The ruling shows how strict the procedural requirements governing jurisdiction are in suits for land.

Frequently Asked Questions

What is a suit for land under the Letters Patent?

A suit for land is a category recognised under the Letters Patent of the Bombay, Calcutta, and Madras High Courts covering suits that seek adjudication of title to, or possession of, immovable property. Courts treat suits for partition, ejectment, and declaration of ownership over land as suits for land, which triggers special jurisdictional requirements, including the need for leave under Clause XII when the property lies outside the court's ordinary original civil jurisdiction.

What is Clause XII leave and when is it required?

Clause XII of the Letters Patent requires a plaintiff to obtain the High Court's prior leave before instituting a suit for land where the immovable property is situated wholly or partly outside the territorial limits of the court's ordinary original civil jurisdiction. Without this leave, the court lacks jurisdiction to entertain the suit, and the plaint is liable to rejection.

Can Clause XII leave be obtained after a suit for land has already been filed?

No. The Bombay High Court has held that leave under Clause XII is a condition precedent to institution of the suit, not a defect that can be cured afterward. If a plaintiff files a suit for land involving property outside jurisdiction without first obtaining leave, the absence of leave is treated as a fatal, non-curable defect, and the plaint is liable to rejection under Order VII Rule 11 of the Code of Civil Procedure, 1908.

Can a plaintiff avoid the leave requirement by seeking partition of only some properties?

No. Courts have held that a partition suit cannot be salvaged by restricting relief to the properties located within jurisdiction, because Indian law does not permit partial partition of a joint family or ancestral estate. Since all the properties in the suit form part of a single partition claim, the requirement for Clause XII leave applies to the suit as a whole, not property by property.

Does it matter if all the defendants in a partition suit reside within the court's jurisdiction?

The residence of the defendants within the court's territorial jurisdiction does not dispense with the requirement for Clause XII leave once the suit is characterised as a suit for land. That residence-based exception under the Letters Patent applies only to suits other than suits for land, so a partition suit involving property outside jurisdiction still requires leave regardless of where the defendants live.

What happens to a plaint rejected under Order VII Rule 11 for want of Clause XII leave?

A plaint rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 for failure to obtain Clause XII leave is treated as never having been validly instituted for the properties concerned. The plaintiff is generally left to file a fresh suit, if still within limitation, after first obtaining the required leave from the High Court before institution.

Does Clause XII apply only to the Bombay High Court?

Clause XII, or its equivalent, appears in the Letters Patent of each of the chartered High Courts established under the Letters Patent system, including Bombay, Calcutta, and Madras, and governs when a suit for land involving property outside the court's ordinary original civil jurisdiction requires prior leave. The specific clause numbering and wording can differ slightly between the charters of each High Court.

What kinds of relief, besides partition, can turn a suit into a suit for land?

Beyond partition, reliefs seeking possession of immovable property, a declaration of title to land, an injunction restraining interference with land, or specific performance of an agreement to sell immovable property have all been treated by courts as bringing a suit within the suit for land category, triggering the same jurisdictional requirements under the Letters Patent.

Does a partition suit stop being a 'suit for land' merely because the plaintiff might eventually be paid the value of her share in money rather than receive physical property?

No. The Bombay High Court rejected exactly this argument, holding that the character of a suit is fixed by the reliefs actually pleaded in the plaint, not by how the claim might eventually be satisfied. Where the plaintiff seeks partition by metes and bounds and delivery of her share, the suit is a suit for land because it necessarily involves adjudication of rights in immovable property and delivery of possession, regardless of counsel's submission that the plaintiff might ultimately receive a monetary equivalent. A court will not look past the pleaded reliefs to speculate about how the decree might later be satisfied.

Is an order rejecting a plaint under Order VII Rule 11 of the CPC for want of Clause XII leave appealable?

Yes. An order rejecting a plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 is deemed a decree under Section 2(2) of the CPC, and a decree is ordinarily appealable under Section 96 read with Order XLIII Rule 1(a). A plaintiff aggrieved by rejection for want of Clause XII leave can therefore file a first appeal rather than being confined to filing a fresh suit, although in practice obtaining the required leave and filing afresh is often the more direct route once the appellate court's view on the leave requirement itself is unlikely to change.

What precedent did the Bombay High Court rely on for holding that a suit seeking partition and delivery of possession falls within the 'suit for land' category?

The Court relied on binding precedent including the Division Bench decision in Shiv Bhagwan Moti Ram Saraoji and the Supreme Court's decision in Adcon Electronics Pvt. Ltd., both of which establish that a suit involving adjudication of rights in immovable property, or seeking possession of it, falls squarely within the suit for land category recognised under the Letters Patent. Counsel for the Applicants also cited Vishram Parbat HUF in support of the same proposition. These authorities collectively confirm that pleading partition and delivery of possession, rather than a bare money claim, is what triggers the suit for land classification.

Can movable assets such as bank accounts and deposits be included in a partition suit that is otherwise treated as a suit for land because of the immovable property involved?

Yes. The suit in this case covered a mix of immovable property, including land at Dindoshi, agricultural land in Wardha, property in Gujarat, and residential flats in Bandra, together with movable assets such as bank accounts and deposits. The presence of movable assets alongside the property claims did not change the suit's classification as a suit for land, since that classification turns on whether the reliefs claimed include partition or possession of immovable property. Once any substantial relief concerning land is pleaded, the suit for land requirement and the Clause XII leave obligation attach to the suit as a whole.

Why did the Court reject the argument that a plaint can only be rejected under Order VII Rule 11 when the entire suit, not just some reliefs, is barred by law?

Counsel for the Plaintiff argued that reliefs concerning the Malad property, which lay within the Bombay High Court's jurisdiction, remained maintainable even without Clause XII leave. The Court rejected this because Indian law does not permit partial partition of a joint estate, so the reliefs concerning properties within and outside jurisdiction could not be separated from each other. Since the core relief of partition necessarily covered all the properties together, the absence of leave for the properties outside jurisdiction meant the entire suit, not merely some reliefs, was barred by law and liable to rejection in full.

Which Bombay High Court judge decided this ruling on Clause XII leave in partition suits, and when?

Justice Firdosh P. Pooniwalla of the Bombay High Court decided this ruling on February 23, 2026, on an Interim Application filed by the original Defendant Nos. 1, 3 and 4 under Order VII Rule 11 of the Code of Civil Procedure, 1908, seeking rejection of the plaint. The Court held that the partition suit was a suit for land requiring prior leave under Clause XII of the Letters Patent, and that the absence of such leave, where properties lay partly outside the Court's territorial jurisdiction, was a fatal, non-curable defect warranting rejection of the plaint in its entirety.