Kerala HC: Sub Court Chavakkad Had Jurisdiction to Partition Mumbai Flat Along With Kerala Properties

The Kerala High Court dismissed a challenge to a partition decree over a Mumbai residential flat, holding that the Sub Court, Chavakkad had territorial jurisdiction because most other properties in the suit lay within its limits, and that a nominee of a cooperative society cannot claim absolute ownership over the legal heirs of a deceased member.

A Division Bench of the High Court of Kerala at Ernakulam, comprising Justice Sathish Ninan and Justice P. Krishna Kumar, on 25 May 2026 dismissed Regular First Appeal No. 149 of 2016, filed by the second defendant in a family partition suit. The appeal challenged a preliminary decree passed by the Sub Court, Chavakkad on 13 August 2015 in O.S. No. 694 of 2013. The decree declared that the plaintiffs together, and each of the defendants, were entitled to one-sixth shares each in the suit properties, including a residential flat at Mumbai that had originally belonged to one Velayudhan, who died on 21 March 1986. The bench rejected every ground raised by the appellant — territorial jurisdiction, the effect of a cooperative society nomination, and the bar under the Kerala Co-operative Societies Act — and left only the question of equitable allotment of the Mumbai flat to be considered by the trial court in final decree proceedings.

The Family and the Disputed Mumbai Flat

Velayudhan and his wife Ammu had six children: Rajendran and defendants 1 to 5. Velayudhan died on 21 March 1986 and Ammu died on 5 January 2002. Rajendran died on 3 June 2003, and his legal heirs filed the partition suit. The suit covered several items of property, but the present appeal was confined to plaint ‘F’ schedule item No. 1 — a residential flat at Mumbai.

The second defendant, P.V. Surendran, is a resident of Mumbai. He contended that Velayudhan had made a nomination in his favour with the cooperative housing society, and that the shares were accordingly transferred to him, making him the absolute owner. He also argued that the Sub Court, Chavakkad had no territorial jurisdiction to entertain a suit concerning a property situated in Mumbai.

Territorial Jurisdiction: Section 16 and Section 17 of the CPC

The appellant's counsel argued that Section 16(b) of the Code of Civil Procedure requires a suit for partition to be filed at the place where the immovable property is situated. Since the flat was at Mumbai, the Sub Court, Chavakkad could not have entertained the suit. He further argued that Section 120 of the CPC exempts the application of Section 17 to High Courts having original civil jurisdiction, and that Rule 12 of the Bombay High Court Rules confers original jurisdiction over immovable properties within the local limits of that court. Therefore, Section 17 could not be invoked to bring the Mumbai flat within the jurisdiction of the Chavakkad court.

The bench rejected this. It noted that almost all the other items sought to be partitioned were situated within the territorial jurisdiction of the trial court. Section 17 of the CPC permits a suit concerning immovable properties situated within the jurisdiction of different courts to be instituted in any court within whose jurisdiction any portion of the property is situated. The bench relied on the Supreme Court's judgment in Shivnarayan (D) By Lrs. v. Maniklal (D) Thr. Lrs. and Others [(2020) 11 SCC 629], which had itself explained the interplay between Sections 16 and 17. That judgment held that Section 17 is an exception to the general rule in Section 16, and that a suit in respect of properties situated in the jurisdiction of different courts may be instituted in any court within whose local limits any portion of the property or one or more properties may be situated, provided the suit is based on the same cause of action.

The bench held that the mere existence of one item out of several items, or even a portion of any item, within the territorial limits of the trial court was sufficient to confer jurisdiction. The argument based on Section 120 of the CPC and the Bombay High Court Rules was dismissed as misconceived: Section 120 applies only to suits before the High Court, not to suits before a subordinate civil court.

Why the Appellant Could Not Raise Jurisdiction for the First Time in Appeal

The bench went further and held that the contention regarding lack of territorial jurisdiction was not even available to the appellant at the appellate stage. Section 21(1) of the CPC prohibits raising such a contention for the first time before the appellate court if it was not raised before the trial court at the earliest opportunity. The bench also referred to Section 99 of the CPC, which provides that a decree shall not be reversed in appeal on account of any error, defect, or irregularity that does not affect the merits of the case or the jurisdiction of the court, clarifying that the term “jurisdiction” in Section 99 does not include territorial jurisdiction.

The appellant had also sought to distinguish Shivnarayan in his favour, arguing that the Supreme Court had there held a suit not maintainable where the cause of action for properties at different places was entirely different with different sets of defendants. The bench acknowledged this aspect of Shivnarayan but held it had no application to the present facts. In Shivnarayan, the cause of action relating to the Indore property and the Bombay property were entirely different, with different defendants for each. Here, the property sought to be partitioned was the legacy of the same deceased couple, Velayudhan and Ammu, and all parties to the suit were their legal heirs. The cause of action was common across all the suit properties.

Nomination With the Cooperative Society Does Not Defeat Legal Heirs

The second defendant's claim to absolute ownership rested on the nomination made by Velayudhan in his favour with the housing society, pursuant to which the shares were transferred to him and the apartment was registered in his name. The bench rejected this squarely, relying on the Supreme Court's decision in Indrani Wahi v. Registrar of Co-operative Societies and Others [(2016) 6 SCC 440]. That judgment reiterated that a nominee is only “the hand to receive” on behalf of all the heirs entitled to the assets under the law of succession, and that nomination with a society does not affect the rights of the legal heirs. The bench held that the transfer of the apartment to the second defendant's name on the basis of the nomination was of no avail, and the property enured to the legal heirs and was liable to be partitioned.

Bar Under the Kerala Co-operative Societies Act

The appellant also argued that the civil suit was not maintainable by virtue of Section 100 read with Section 69 of the Kerala Co-operative Societies Act. Section 100 bars civil court jurisdiction in respect of matters for which provision is made in the Act. Section 69 provides a mechanism for settlement of disputes within a society or between its members or persons claiming through deceased members.

The bench examined the definition of “dispute” under Section 2(i) of the Act, which requires the matter to touch the business, constitution, establishments, or management of the society. The appellant's counsel relied on a Bombay High Court judgment in Arun Wamanrao Shinde v. Prakash Bhagwan Dalvi and Others [AIR 1991 Bom. 128], where a dispute between a member and his assignee regarding membership was held to touch the business of the society, making a civil suit not maintainable.

The bench declined to follow that view. The suit before it was one for partition of the assets of a deceased member. The dispute was strictly between the legal heirs regarding their inter se entitlement and related to their title. It had nothing to do with the business of the society. The bench held it was not a “dispute” within the meaning of the Co-operative Societies Act, and the bar under Section 100 did not apply.

Equitable Allotment Left to Final Decree Proceedings

The appellant made a separate plea in equity: he is a resident of Mumbai, the others are not, and he had taken all steps pursuant to the nomination, expended amounts, and got the apartment registered in his name. He argued that the apartment should therefore be allotted to him in the final decree. The bench noted that this submission had some appeal, but declined to decide it at the appellate stage. It left the plea of equity open to be considered by the trial court in the final decree proceedings, expressing no reason to assume the trial court would not consider it.

Outcome

The Division Bench dismissed R.F.A. No. 149 of 2016 with no order as to costs. The preliminary decree of the Sub Court, Chavakkad dated 13 August 2015, declaring each of the six legal heirs entitled to a one-sixth share in the suit properties including the Mumbai flat, was upheld. The question of equitable allotment of the Mumbai flat to the second defendant was left open for the trial court to consider in the final decree proceedings.