1. This is a suit to recover a sum of Rs. 6,492 being part of the, proceeds of the sale of a dwelling house at Bhawalpore in the Punjab. The premises in suit are situate in the Native State of Bhawalpore, and are not within the jurisdiction of the High Court at Fort William in Bengal.
2. The plaintiffs' cause of action is set out in paras. 9-12 of the plaint.
Para. 9. - The plaintiffs and the defendant9 as members of an undivided Hindu family governed by the Mitakshara School of Hindu Law hid been in joint possession and enjoyment amongst others of the said ancestral house and premises in Bhawalpore, having inherited the same from their common ancestor the said Sundar Shah Rathi as stated above, till the same with all additions and alterations and improvements made thereupon with the advance of time were disposed of about three years ago as stated below.
Para. 10. - About three years ago the defendant Chaganlal acting for himself and as the constituted attorney of the other defendants sold and conveyed the said ancestral house and premises with the said additions, alterations and improvements thereupon part by part to diverse parties in the months of March and April 1920.
Para. 11, - The said sales were all effected by the defendants without the consent or knowledge of the plaintiffs or of any of them and he realised therefrom in all the sum of Rs. 19,476.
Para. 12. - The plaintiffs have been advised and they believe and submit that they are entitled to one-third of the whole of the said sum of Rs. 19,476, that is to say the sum of Rs. 6,492.
3. The relief claimed is:
1. Leave under Clause 12, Letters Patent (1865), of the High Court at Fort William in Bengal.
2. Decree for the said sum of Rs. 6,492 with such interest thereon as this Court may be pleased to allow.
3. If necessary, an account, and other incidental relief.
4. The defence of Chaganlal and Kanahyalal, the first and third defendants, is that the plaintiffs and the defendants are members of a joint Hindu family; that they did not sell the right, title or interest of the plaintiffs in the premises in suit, and that any interest that the plaintiffs may have possessed in the said premises has been lost by adverse possession. Sohanlal, the second defendant, by way of defence stated that the family except in respect of the said house at Bhawalpore was not joint and undivided; that the defendant Chaganlal had sold the premises in suit, and that Sohanlal had received Rs. 2,000 in respect of his share of the sale proceeds.
5. Rukmini and Mathurabai, the fourth and fifth defendants, stated in their defence that they were the widows of two of the members of the said family, and that the members of the family for a long time had been living separately, but that there had not been a partition of the joint ancestral property. They stated further that they had received from the defendant Chaganlal Rs. 1,500, part of a sum of Rs. 3,500, which was their share of the sale proceeds of the property in suit; and they denied that the plaintiffs were entitled to any portion of the sale proceeds that had been received by them. The defendants Chaganlal, Sohanlal, and Kanahyalal also denied that the Calcutta High Court had jurisdiction to try the suit.
6. The first question that arises is whether, having regard to the pleadings, this Court possesses jurisdiction to try the issues that fall for determination.
7. Under Clause 12, Letters Patent (1865):
The High Court of Judicature at Port William in Bengal, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description, if, in the case of suits for land or other immovable property such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained in part, within the local limits of the ordinary original civil jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain within, such limits.
8. Leave under Clause 12, Letters Patent, was granted on the 23rd March 1923. In the plaint the defendants, Chaganlal and Sohanlal, are described as residing in the town of Calcutta, while the other three defendants are described as being beyond the jurisdiction of the Court.
9. After the suit had been called for hearing learned Counsel stated that the plaintiffs were prepared to abandon their claim against the defendants other than Chaganlal and Sohanlal, and as against defendants 3 to 5 the suit was dismissed with costs the defendants Chaganlal and Sohanlal contend that in tho3e circumstances this Court has no jurisdiction to try the issues that arise, upon two grounds (i) : that the suit is a "suit for land" within Clause 12, Letters Patent (1865); (ii) that at the commencement of the suit all the defendants did not dwell, carry on business, or personally work for "gain" within the local limits of the ordinary "original ,civil jurisdiction" of the Court, as required under the provisions of Clause 12, Letters Patent. It becomes necessary, therefore, to ascertain and determine the meaning of the words "suits for land" as used in Clause 12, Letters Patent. The term is ambiguous, and in Venkoba Balshet v. Rambhaji  9 B.H.C. 12 the Bombay High Court held that:
We think that this is not a suit for land within the meaning of Section 5, Act 8, 1859. Comparing that section with Sections 223 and 224 of the Code, we think that a suit for land is a suit which asks for delivery of the land to the plaintiff.
10. This construction of the term appears to have found favour with the Bombay High Court in Yaswantrao Holkar v. Dadabhai  14 Bom. 353, and also with Sanderson, C.J., in the case of Nagendra Nath Chowdhuri v. Eraligool Co. Ld. A.I.R. 1922 Cal. 443. But Holkar's case (1890) 14 Bom. 353 has recently been overruled by a Full Bench of the Bombay High Court in India Spinning and Weaving Co. Ld. v. The Climax Industrial Syndicate A.I.R. 1926 Bom. 1, and, having regard to the ratio of the doctrine to be found in the jurisprudence of all civilized countries that questions relating to the title to the ownership or possession of immovable property should be determined not only by the lex situs but also in foro situs. I am of opinion that this narrow construction is not correct, and that the term "suits for land or other immovable property" is not limited to suits in which the plaintiff seeks to recover possession of land or other immovable property. The sanction of the doctrine is to be found in international comity, and
the principle itself arises from the conception of international law known as eminent domain, by which is meant that the proprietary right of every sovereign state is not only absolute within its territorial limits, so as to exclude that of other nations, but also paramount with respect to the members of the state itself, so as to include the right, in case of necessity or for public safety, of disposing of all the property of every kind, within the same limits:
(Poote's Private International Law, p. 223).
The defendant's judge,
11. Wrote Vattel:
is the judge of the place where the defendant has his settled abode or the judge of the place where the defendant is when any sudden difficulty arises provided it does not relate to an estate in land or to a right annexed to such an estate. In such a case, as property of this kind is to be held according to the laws of the country where it is situated and as the right of granting it is vested in the rule of the country, controversies relating to such property can only be decided is the state in which it depends. B. 2, Ch. 8, Section 103.
12. Story lays down that:
In respect to immovable property every attempt of any foreign tribunal to found a jurisdiction over it must, from the very nature of the case, be utterly nugatory and its decree must be for ever incapable of execution in rem. We have seen indeed that by the Roman law a suit might in many cases be brought either where the property was situate or where the party had his domicile. This might well be done within any of the vast domains over which the Roman Empire extended; for the judgments of its tribunals would be everywhere respected and obeyed. But among the independent nations of modern times there would be insuperable difficulties in such a course. And henne, even in countries acknowledging the Roman law, it has become a very general principle that suits in rem should be brought where the property is situate : and this principle is applied with almost universal approbation in regard to immovable property. The same rule is applied to mixed actions and to all suits which touch the realty; Conflict of Laws, Section 511.
13. The learned author says that
the inconveniences of an opposite course would be innumerable and would subject immovable property to the most distressing conflicts arising from opposing titles and compel every nation to administer almost all other laws except its own in the ordinary administration of justice. S, 555 : see also Dicey's Conflict of Laws, 4th edition, p. 33; Wheatson's International Law (1901), p. 260; Westlake's Private International Law, 7th edition, p. 315.
14. As I apprehend the matter the framers of the Letters Patent, 1865, when prescribing the local limits of the High Courts in India, intended to apply the rule that his followed ex comitate in other countries. In my opinion the terms "suits for land or other immovable property" in Clause 12, Letters Patent, means suits in which, having regard to the issues raised in the pleadings, the decree or order will affect directly the proprietary or possessory title to land or other immovable property : Delhi and London Bank v. Wordie  1 Cal. 249, Kellie v. Fraser  2 Cal. 445, Sreenath Roy v. Cally Doss Ghose  5 Cal. 82, Land Mortgage Bank v. Sudurudeen Ahmed  19 Cal. 358, Ebrahim Ismail Timol v. Provas Chander Mitter  36 Cal. 59, Lodna Colliery Co. v. Bipin Bihari Bose  39 Cal. 739, Sudamdih Coal Co. v. Empire Coal Co.  42 Cal. 942, Harendra Lal Roy Chowdhuri v. Hari Dasi Devi A.I.R. 1914 P.C. 67, Abdul Karim v. Badrudeen  28 Mad. 216, Sundara Bai v. Tirumal Rao  33 Mad. 131, Vaghoji Kuverji v. Camaji Bomanji  29 Bom. 249, India Spinning and Weaving Co. v. Climax Industrial Syndicate A.I.R. 1926 Bom. 1, In Re Hawthorne (1883) 23 Ch.D. 743, The British South Africa Co. v. Campanhia De Mocambique  A.C. 602, Deschamps v. Miller  1 Ch. 856.
15. Thus construed, the restriction upon the local jurisdiction of the Indian Courts effected under Clause 12, Letters Patent, conforms to the rule that is observed ex comitate by other civilized countries, and is in consonance with what I conceive to be the better opinion of the Courts in India. Further, if the words "suits for land or other immovable property" bear the meaning that I have attributed to them, a simple testis provided for determining in any particular case whether the Court possesses jurisdiction to try the suit. For instance, judged by this test, a suit brought to recover damages for trespass to land beyond the jurisdiction of the Court will or will not be a suit for land according to the issues that fall to be determined. If, having regard to the pleadings, no issue is raised as to the title of the plaintiff, and the issue to be tried is merely whether the factum of the trespass by the defendant has been proved, then, if the defendant is within the jurisdiction, the Court will hear the suit, for the suit is not a suit for land. On the other hand, if the right of the plaintiff to be in possession of the land is in issue, the Court will have no jurisdiction to try the suit, for the decree will affect directly the title to the land. In British South Africa Co. v. Campanhia De Mocambique  1 Cal. 249, Lord Herschell, C.J., observed that
he was not satisfied that either Lord Mansfield or Story would have regarded an action of trespass to land as a suit for personal damages only, if the title to the land were in issue, and in order to determine whether there was a right to damages it was necessary for the Court to adjudicate upon the conflicting claims of the parties to real estate. In both the cases before Lord Mansfield, as I understand them, no question of title to real property was in issue.
16. Again, if a suit is brought for the administration of a trust which inter alia relates to immovable property situate outside the jurisdiction of the Court, and the only relief sought is that the trustee should be ordered duly to carry out the trust, the suit is not a suit for land. But if the relief claimed is not confined to an order for the enforcement of the trust, and the applicant claims, e.g., a declaration of his right to the possession of trust properties situate outside the jurisdiction, then, in my opinion, the suit would be a suit for land, and the Court would have no jurisdiction to entertain it. Nistarini Dassi v. Nundo Lall Bose  26 Cal. 891, Haralall Banerjee v. Nitambini Debi  29 Cal. 315, Abdul Karim v. Badrudeen  28 Mad. 216. I am, of course, aware that
whilst Courts of equity have never claimed to act directly upon land situate abroad, they have purported to act upon the conscience of persons living Hare. In Lord Crawstown v. Johnston  1 Cowp. 161 Sir R.A.P. Arden, Master of the Rolls, said : "Archer v. Preston, Lord Arglasse v. Muschamp, and Lord Kildare v. Eustace, clearly show that with regard to any contract made, or equity between persons in this country, respecting lands in a foreign country, particularly in the British Dominions, this Court will hold, the same jurisdiction as if they were situate in England:" per Lord Herschell in British South Africa Co. v. Campanhia De Mocambique  A.C. 602, Norris v. Chambres  3 D.G.F. & J. 583, Ewing v. Orr Ewing  9 A.C. 34, In Re Hawthorne (1883) 23 Ch.D. 743, Dumder v. Armsterdamsch Trustees Kantoor  2 Ch. 132, India Spinning and Weaving Co. v. Climax Industrial Syndicate A.I.R. 1926 Bom. 1.
17. I am not disposed to limit the jurisdiction of the High Courts. On the contrary I conceive it to be my duty to maintain, and, whenever it is meet so to do, to enlarge, the authority of the Court. Est boni judicis ampliare juris dictionem. In my opinion, both in India and in England the High Courts, for the purpose of doing equity, possess jurisdiction to pas3 decrees in personam which may affect immovable property situate beyond the jurisdiction of the Court. But while this jurisdiction in equity is to be exercised at the discretion of the Court, the Court will act in compliance with limitations upon its discretion which have long been established. In Deschamps v. Miller  9 B.H.C. 12 Parker, J., observed that
the general rule is that the Court will not adjudicate on questions relating to the title to, or the right, to the possession of, immovable property out of the jurisdiction. There are, no doubt, exceptions to the rule, but, without attempting to give an exhaustive statement of those exceptions, I think it will be found that they all depend on the existence between the parties to the suit of some personal obligation arising out of contract, or implied contract, fiduciary relationship, or fraud, or other conduct which in the view of a Court of equity in this country would b3 unconscionable, and do not depend for their existence on the law of the locus of the immovable property. Thus, in cases of trusts, specific performance of contracts, foreclosure or redemption of mortgages, or in the case of land obtained by the defendant by fraud or other such unconscionable conduct as I have referred to, the Court may very well assume jurisdiction. But where there is no conduct, no fiduciary relationship and no fraud or unconscionable conduct giving rise to a personal obligation between the parties, and the whole question is whether or not according to the law of the locus the claim of title set up by one party, whether a legal or equitable claim in the sense of these words as used in English law, would be preferred to the claim of another party, I do not think the Court ought to entertain jurisdiction to decide the matter.
18. In Vaghoji v. Camaji  14 Bom. 353, Jenkins, C.J., observed that
a Court of equity in England only assumed jurisdiction in relation to land abroad, whereas between the litigants or their predecessors some privity or relation was established on the ground of contract, trust or fraud, but in no case of which I am aware has the Court of equity entertained a suit, even if the defendant was within the limits of its jurisdiction, where the purpose was to obtain a declaration of title to foreign land : see also the instructive judgment of Ray, J., in Be Hawthorne (1883) 23 Ch.D. 743.
19. Moreover, the Court will not pass a decree in personam which indirectly affects, foreign land unless the decree can effectively be enforced by the personal obedience of the defendant within the jurisdiction. It will not pass a decree that will operate in the Courts loci situs, merely as a brutum fulmen : Norris v. Chambres  3 D.G.F. & J. 583, Exp. Pollard (1839) Mont. & C. 239.
I am not aware
observed Kay, J.,
of any case where a contested claim depending upon the title to immovables in a foreign country strictly so called, being no part of the British dominions or possessions, has been allowed to be litigated in this country simply because the plaintiff and the defendant happened to be here : Re Hawthrone.(1883) 23 Ch.D. 743.
20. In the British South Africa Co.'s case (1893) A.C. 602 Lord Herschell, L.C., stated that
there appear to me, I confess, to be solid reasons why the Courts of this country should, in common with those of most other nations, have refused to adjudicate upon claims of title to foreign land in proceedings founded on an alleged invasion of the proprietary rights attached to it, and to award damages founded on that adjudication, and his lordship added that it is quite, true that, in the exercise of the undoubted jurisdiction of the Courts, it may become necessary incidentally to investigate and determine the title to foreign lands; but it does not seam to me to follow that because such a question may incidentally arise and fall to be adjudicated upon, the Courts possess, or that it is expedient that they should exercise, jurisdiction to try an action founded on a disputed claim of title to foreign lands.
21. In considering whether the present, suit is a suit for land within Clause 12, Letters Patent, I have endeavoured to bear in mind the doctrine enunciated in the authorities to which I have referred, and, as I apprehend the matter, the construction that I have placed upon the term "suits for land or other immovable property" in Clause 12, Letters Patent, conforms alike to the principle underlying the decisions of the Courts and to the rule of international law that finds its sanction in the comity of nations. Now, applying the test that I have laid down to the issues raised in this case I am clearly of opinion that the present suit is not a suit for land. The claim is to a share of the proceeds resulting from the sale of the ancestral dwelling-house at Bhawalpore; and, having regard to the pleadings, no issue arises that can affect the title to the land and premises that have been sold. The title of the purchaser is not challenged. In this suit the plaintiffs, do not seek to set aside the sale; on the contrary, both the plaintiffs and the defendants approbate the sale, and claim their share of the proceeds. The real issue to be determined in this dispute 13 not with respect to the title to the ancestral dwelling-house, but whether the plaintiffs at all material times were members of the joint undivided family to which the dwelling-house and premises in suit belonged. For these reasons, in my opinion, the suit is not "a suit for land or other immovable property" within Clause 12, Letters Patent.
22. The defendants further contend that as it is conceded that no part of the cause of action arises within the local limits of the ordinary original civil jurisdiction of the Court, the Court has no jurisdiction to entertain the suit, because three of the defendants at the time of the commencement of the suit did not "dwell, or carry on business, or personally work for gain within such limit." In the plaint defendant 3 is described as residing at Chinsurah in the district of Hoogly, and defendants, 4 and 5, as residing at Bikaneer; both places being situate beyond the local limits of the ordinary original civil jurisdiction of the Calcutta High Court. This contention must prevail, for, in my opinion, in these circumstances the issue as to the jurisdiction of the Court is concluded against the plaintiffs by the ruling of this Court in Hadjee Ismail Hadjee v. Hadjee Mahomed Hadjee  13 B.L.R. 91. That case was decided in 1874 and so far as I have been able to ascertain, the correctness of the decision has never been doubted during the 53 years that have passed since the judgment was delivered. Mr. Sircar frankly and properly admitted that the plaintiffs could not reasonably contend that, inasmuch as the suit had been dismissed against the three defendants who reside beyond the jurisdiction of the Court, the suit must be deemed to have commenced from the date when the only defendants remaining on the record were described as residing within the jurisdiction. Learned Counsel for the plaintiffs, however, contended that as defendants 1 and 2 were, at all material times, amenable to the jurisdiction of the Court it was not open to either of those defendants to raise the defence that because they had been joined as defendants with some other persons who are not subject to the jurisdiction of the Court, the Court has no jurisdiction to entertain the suit. In Hadjee's case (1874) 13 B.L.R. 91 the same contention was raised and prevailed before the trial judge, but it was not accepted by the Court on appeal. In that case, as in the present case, the defendants who were residing beyond the jurisdiction were interested in the issues that fell for determination, and the Court (Couch, C.J., and Pontifex, J.,) decided that the suit could not be treated as a suit brought solely against the defendants who were within the jurisdiction, and further held that
to say that it is sufficient for one defendant to dwell or carry on business within the jurisdiction would be to insert something into this clause which is not there. It would be saying if any of the defendants or any defendant dwells or carries on business within the limits. It being necessary to give to the word "defendant" such a meaning as to include more than one, for the purpose of applying it to suits where there are several defendants, I think we ought also to hold that the dwelling or carrying on business must be of all the defendants. The expression is used not as indicating an individual defendant in a suit, but the party defendants to the suit which may be one person or several.
23. In those circumstances the Court ordered that the plaint be taken off the file of the Court, I am bound by the decision in Hadjee's case (1874) 13 B.L.R. 91 and I order that the suit be dismissed, and the defendant's costs of, and incidental to, these proceedings be paid by the plaintiffs.