JUDGMENT
Fawcett, J.
1. This issue comprises two main questions,
(i) Whether, as ruled in Holkar v. Dadabhai Cursetji Ashburner (1890) I.L.R. 14 Bom. 353 this Court, has, under Clause 12 of its Letters Patent, jurisdiction in personam in regard to lands outside the original jurisdiction of this Court; and (ii) If so, whether this suit is one in which such jurisdiction can properly be exercised.
2. In regard to the first point I think the answer should be in the affirmative, for the following reasons:–
(a) The decision in Holkar v. Dadabhai is one that prima facie binds me sitting as a Judge on the Original Side of this Court, and unless it is shown to have been over-ruled, or shaken to an extent that ought to prevent me from following it, I am bound by that decision. In Sundara Bai Sahiba v. Tirumal Rao Sahib (1909) I.L.R. 33 Mad. 131 it is said that the authority of this decision and of Sorabji v. Rattonji (1898) I.L.R. 22 Bom. 701 is considerably shaken, if they are not over-ruled by the later decision in Vaghoji v. Camaji (1904) I.L.B. 29 Bom. 249 : s.c. 6 Bom. L.R. 958.) But there are really five distinct questions involved in these cases, viz.
1. Whether a suit ‘for laud’ within the meaning of this Clause 12 is confined to a suit for the recovery or delivery of laud. So far as Holkar v. Dadabhai might be said to support this view, it is no doubt shaken by Vaghoji v. Camaji; but Jenkins C.J. points out at pp. 254-5 that really the decision in Holkar’s case is not based on any such view.
2. Whether a suit ‘for land’ extends to a suit where the purpose is to obtain a declaration of title to foreign land. This is decided in the affirmative in Vaghoji v. Camaji, but is not dealt with in the other two cases.
3. Whether the High Court of Bombay has all the powers of a Court of Equity in England for exercising jurisdiction in, personam in regard to land outside the jurisdiction. This was directly decided in the affirmative in Holkar’s case, and Jenkins C.J. in Vaghoji v. Camaji takes that decision as binding (see at page 255): so the two previous Bombay decisions are certainly not over-ruled or shaken, so far as they proceed on deciding that question in the affirmative.
4. If so, whether such jurisdiction exists, even though the defendant does not reside or carry on business or personally work for gain in Bombay. This is impliedly decided in the affirmative by Holkar’s case, for the defendant there did not reside or trade or carry on business in Bombay (see at pages 354-5), though no reference to this point is made in the judgment; it is also decided affirmatively in Sorabji v. Rattonji, but merely on the basis of previous binding authority. The point is not referred to in Vaghoji v. Camaji, so these decisions cannot be said to be affected by that case. 2. They are no doubt affected by the criticism that a Court of Equity in Engaland does not ordinarily exercise such jurisdiction in personam, except against persons residing or carrying on business within its jurisdiction. There are, however, exceptions such as one referred to in Jenney v. Mackintosh (1886) 33 Ch. D. 595 and Duder v. Amsterdamsch Trustees Kantoor [1902] 2 Ch. 132, compare Dicey’s Conflict of Laws, 3rd Edition, page 226, foot-note (g), and Rule 60, pages 250-278.
In the unreported case of Venkatrao Sethupathy v. Khimji Assur Virji (1916) 26 Bom. L.R. 535 the Court of Appeal has held that such jurisdiction does exist, not only in cases where the defendants or some of them reside permanently within the jurisdiction but in cases where, according to the provisions of the Letters Patent, they have been lawfully caused to appear upon summons and where the cause of action or part of it has arisen in Bombay. It is, however, open to question whether this does not go further than the corresponding law in England which seems to allow of such extended jurisdiction outside the Court’s territorial jurisdiction only when there is already one defendant who resides or carries on business in England: of Dicey’s Conflict of Laws, 3rd Edn., Exception 7 at p. 265.
5. Whether such jurisdiction can be exercised to the extent of passing a decree which may affect the possession or control of the foreign land, e. g., by ordering a mortgage-debt to be realised by sale of the land. This is answered in the affirmative by the decision in Holkar’s and Sorabji’s cases; but the question is not directly dealt with in Vaghoji v. Camaji though some remarks in the judgment as to the limitation on the jurisdiction exercised by a Court of Equity in England (at pages 256-7) may be said to weaken the authority of those decisions. On the other hand the judgment in Venkatrao Sethupathy v. Khimji Assur Virji holds that such a suit is not a suit for land.
Therefore it seems to me that the decision in Holkar’s case is not affected by Vaghoji v. Camaji except in regard to points (1) and (5) and that it is confirmed in regard to point (3), which is the main question now before me. Nor, for the reasons given in my interlocutory judgment No. 1, do I think that the Bombay decisions have been over-ruled by the Privy Council in Harendra Lal Roy Chowdhuri v. Hari Dassi Debi (1914) L.B. 41 I.A. 110 : s.c. 16 Bom. L.R. 400.
(b) On the contrary it seems clear that there are two cases where such jurisdiction in personam has been exercised by the Madras and Calcutta High Courts respectively, and the Privy Council have held that the High Courts had jurisdiction to do so. In Nistarini Dassi v. Nundo Lall Bose (1899) I.L.R. 26 Cal. 891, 921-2 the Judge pointed out that in regard to the lands in suit he was exercising this jurisdiction in personam, and in the same case on appeal to the Privy Council Benode Behary Bose v. Nistarini Dassi (1905) I.L.R. 33 Cal. 180, P.C., at page 191, the Privy Council approved of this, saying:–
The High Court of Calcutta, in its Ordinary Jurisdiction, had a right to order administration of this estate, and, as ancillary to such an order, to set aside deeds obtained by the fraud of the executor. Nor does the circumstance that a decree had been granted by the Court of the 24-Pergunnahs making a fraudulert award an order of Court protect that decree from the jurisdiction of the Calcutta Court, when redressing that fraud. In like manner, their Lordships consider the Calcutta High Court entitled, for the due administration of the estate, to set aside leases of land outside the territorial limits of their jurisdiction, those leases having been made as an incident of the same fraud.
Similarly in another administration suit, Srnivasa Moorthy v. Venkata Varada Ayyangar (1906) I.L.R. 29 Mad. 239, 241 the judgment of Subramania Ayyar J. shows that similar jurisdiction in personam was exercised by the Madras High Court in regard to laud outside Madras, and the High Court’s jurisdiction was confirmed as “too plain for argument” by the Privy Council in the same case on appeal: Srinivasa Moorthy v. Venkata Varada Aiyangar (1911) I.L.R. 34 Mad. 257, p. c. I may further refer to the remarks of Sir Arnold White C.J. in his judgment in Srinivasa Moorthy v. Venkata, Varada Ayyangar (1906) I.L.R. 29 Mad. 239, 246 that the law of England may be looked to for the purpose of ascertaining the intention of the legislature in enacting Clause 12 of the Letters Patent, which support the decision in Holkar v. Dadabhai.
(c) A point to be remembered is that Clause 12 of the Letters Patent is similar in language to Section 5 of the first Civil Procedure Code of 1859, and the close connection between the two is pointed out by Jenkins C.J. in Sudamdih Coal Co. Ld. v. Empire Coal Co. Ld. (1915) I.L.R. 42 Cal. 942, 951. The provisions of this Section 5 were changed in the next Code of Civil Procedure, Act X of 1877, Section 16 of which was enacted in almost the same terms as the present Section 16 of the Code of 1908. This in effect gives a definition of the expression ‘suits for land’, but contains a proviso which substantially allows the jurisdiction in personam in regard to foreign lands, such as is referred to in Holkar v. Dadabhai. It was with reference to Section 5 of the Code of 1859 that it was ruled in Yenkoba Balshet Kasar v. Rambhaji valad Arjun (1872) 9 B.H.C.R. 12 and in John, Young v. Mangalapilly Ramaiya (l866) 3 M H.C.R. 125 that such jurisdiction in personam, could be exercised by a moffussil Court, and the legislature has clearly endorsed that view. As pointed out in the arguments of Latham, Advocate-General, in Holkar v. Dadabhai (at page 356), this Court has always since Yenkoba, v. Rambhaji exercised this jurisdiction in personam; and it would be a strange anomaly if the High Court is deprived of the power of exercising this valuable form of equitable jurisdiction, in consequence of strict construction of the words ‘suits for land’ in Clause 12 of the Letters Patent, while a motlussil Subordinate Judge’s Court is allowed to exercise such jurisdiction. (Compare Kashinath v. Anant (1899) I.L.R. 24 Bom. 407 : 2 Bom. L.R. 47 and Durga Das v. Jai Narain (1917) I.L.R. 41 All. 513. It seems to me that the effect of the decision in Holkar v. Dadabhai and the settled practice of this Court in regard to that jurisdiction is to add a proviso to Clause 12, similar to that contained in Section 16 of the Civil Procedure Code of 1908.
(d) It is not necessary for me to consider whether a suit to enforce a charge on immoveable property cannot be said to be one within this personal jurisdiction, inasmuch as in such a case the relief sought cannot be completely obtained by personal obedience of a defendant residing or currying on business in the jurisdiction, but in the last resort entails a sale of the land in order to enforce the charge. Nor need I enter into the wider question (5) that I have mentioned in the para (a) of this judgment. The only relief affecting the land which is sought in this suit is the declaration of a charge upon it and it seems to me obvious that such a declaration is, at the worst, on the same footing as an injunction which can undoubtedly be issued in the exercise of this personal jurisdiction. If an injunction can be issued against the defendants restraining them from dealing with or disposing of the land in such a way an to obstruct or defeat this particular charge, a fortiori a declaration is a form of relief which can be given in exercise of this jurisdiction in personam. It may be pointed out that one result of such a declaration would be to put the plaintiff in the position of a secured creditor as against the defendant No. 1 Company, should it become insolvent or be wound up, and that is a right which might be of very considerable importance to him in Bombay as against the liquidator who would have jurisdiction in regard to this land although it is outside Bombay. (Compare the proviso to Section 17 of the Presidency Towns’ Insolvency Act, 1909). Even if, as ruled in Webb v. Macpherson (1903) I.L.R. 31 Cal. 57, 72, p. c. the plaintiff has a statutory charge upon the land different from the equitable vendor’s lien given by the English Law, still he would have the advantage of having had his right to this charge adjudicated upon by a competent Court in a suit to which the Company is a party. This in effect will simply declare an obligation of the kind referred to in ss. 91 and 95 of the Indian Trusts Act, 1882, and is one which undoubtedly could be given by a Court of Equity in England. If I am wrong, then the question still remains whether I am not bound by the decisions in Holkar’s and Sorabji’s cases, as well as the unreported judgment of this High Court in Venkatrao Sethupathy v. Khimji, Asuur Virji which has already been referred to.
(e) No doubt defendant No. 3 is not alleged to reside or carry on business in Bombay, but he is not concerned with the relief sought in regard to the land, which now is held by the defendant No. 1 Company. Consequently the question (4) of those mentioned in para (a) does not arise. In any case admittedly he was a mere nominee of the defendant No. 2 a firm, and the relief (if any) given would not affect him. Even if the suit did involve the grant of relief against him, I should, I think, be bound by Holkar’s and Sorabji’s cases, which are not affected on this point by Vaghoji v. Camaji.
(f) I would add that the view I now take is not, I think, inconsistent with that taken by me in Yeshvadabai v. Janardhan the land is situated in Bombay, a suit to declare a charge on it can be a suit ‘for land’ within the meaning of Clause 12 of the Letters Patent, so as to give this Court jurisdiction over the suit which it otherwise might not have (as in that case and in Sundara Bai Sahiba v. Tirumal Rao Sahib (1909) I.L.R. 33 Mad. 131, 133 But when the land is situated outside the territorial limits of this Court’s jurisdiction, then the words ‘suits for land’ in Clause 12 must be read subject to the qualification or proviso that this Court has a jurisdiction in personam similar to that exercised by a Court of Equity in England, and by a moffussil Court under the proviso to Section 16 of the Civil Procedure Code of 1908. If this distinction is borne in mind, it seems to me that much of the difficulties and of the apparent inconsistencies that surround rulings regarding the words ‘suits for land’ in Clause 12 disappears. I recognise that the addition of such a qualification or proviso is outside the ordinary canons of interpretation of a statute or other enactment like Clause 12 of the Letters Patent, but it is a modification of the language to meet the intention of the statute-or at any rate what is said by authority binding upon me to have been its intention which is of the kind referred to in Chapter IX of Maxwell on the Interpretation of Statutes, 3rd Edition, pages 319-22. And it has behind it the authority of being a received construction in this High Court for a large number of years, and of confirmation by the legislature in regard to the similar provisions of Section 5 of the Civil Procedure Code of 1859, as compared with the provisions of Section 16 of the subsequent Codes. Clause 12 is put in very condensed language and it has been expanded in another way, viz., the received construction as to its being read as if the part now under construction ran as follows:–” (a) In the case of suits for land or other immoveable property, such land or property shall be situated wholly, or in case the leave of the Court shall have been first obtained, in part within the local limits of the ordinary original jurisdiction of the said High Court.” See Balaram v. Ramchandra (1898) I. L. R. 22 Bom. 229 and Govindlal v. Bansilal . This exemplifies how it may be legitimate to amplify the words of Clause 12 in the way I seek to do.
