Bombay High Court Holds Partition Suit Involving Properties Within and Outside Jurisdiction Requires Prior Leave Under Clause XII

Introduction

In an Interim Application under Order VII Rule 11 of the Code of Civil Procedure, 1908, the Hon'ble Bombay High Court examined whether a partition suit involving properties both inside and outside of jurisdiction could proceed without leave under Clause XII of the Letters Patent in a judgment dated February 23, 2026, delivered by Justice Firdosh P. Pooniwalla. The Court ruled that even a suit for partition of ancestral properties is a "suit for land," that in cases where a portion of the property is outside the jurisdiction, prior leave is required, and that if such leave is not obtained, the entire plaint may be rejected.

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. In addition, the Plaintiff sought declarations that various 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. It was further submitted 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, and not adjudication of title or possession of land. He argued that any issue relating to land was incidental and that the Plaintiff may ultimately receive her share in monetary terms, thereby negating any requirement of treating 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. It was 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, clarifying that such 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 underscores 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 due to the bar on partial partition. Consequently, the plaint was rejected in its entirety under Order VII Rule 11 of the CPC, reinforcing the strict procedural requirements governing jurisdiction in suits for land.