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Pranlal Tribhuwandas Vs. Goculdas Damodar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 2426 of 1924
Judge
Reported inAIR1925Bom333; (1925)27BOMLR570
AppellantPranlal Tribhuwandas
RespondentGoculdas Damodar
Excerpt:
.....property outside jurisdiction-suit to determine who is a prior mortgagee, as between different mortgagee-jurisdiction.;the high court of bombay has no jurisdiction to grant a declaration as to who out of two or more competing mortgagees is a prior mortgagee, when the property mortgaged is situated outside the jurisdiction of the court.;holkar v. dadabhai cursetji ashburner (1890) i.l.r. 14 bom. 3533 - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application..........by scott c.j, to the effect that a suit in which a mortgagee seeks to have land sold is not a suit for land. i find it difficult to understand this dictum. an interest in land is a land and a suit in which an interest in land is realised must be a suit for land.11. again it is contended that if there is jurisdiction as in holkav v. dadabhai against the first defendant, it stands to reason that there must be jurisdiction against the second defendant who derives his interest from him. but a mortgage not in the english form does not even create privity of estate (see thethalan v. the eralpad rajah, calicut i.l.r. (1917) mad. 1111) but it is not privity of estate that equity is concerned with but privity of contract or notice. there can be and is no such privity between the plaintiff.....
Judgment:

Pratt, J.

1. In this suit plaintiff sues as mortgagee of certain property in Dutch belonging to the first defendant. The mortgage was made in Bombay on November 20, 1923, by deposit of title deeds.

2. He has joined in that suit the second defendant on the ground that the second defendant falsely alleges that he is now in possession as prior mortgagee of the properties and denies the plaintiffs right to a charge on the said properties. Plaintiff accordingly prays not only for a decree for the sale of the properties but also for a declaration of his charge as against the second defendant.

3. The suit as between the plaintiff and the first defendant was decided by a consent decree taken on August 19. 1924, where-by a decree for sale was made on behalf of the plaintiff, with however this reservation as regards the second defendant, that that decree was to be without prejudice to the rights of the plaintiff and the second defendant, and the suit was adjourned in order that the rights of the plaintiff and the second defendant should be determined.

4. The second defendant claims a prior charge on the properties by a mortgage of May 1923. By a prayer in the original written statement he prayed for a declaration of the enforcement of that charge, but that written statement was amended on November 11, 1924, and by the amendment the second defendant pleaded that the Court had no jurisdiction to make a declaration of plaintiff's charge as against him and all the other pleas in his written statement were subject to that objection. The point which has now been argued before me is as to whether I have jurisdiction in this suit to make a declaration that the mortgage alleged to have been created by the first defendant in favour of the plaintiff was not subject to the prior charge by the first defendant in favour of the second defendant in May 1923.

5. Now in the suit against defendant No. 1 jurisdiction was assumed following the rule in Holkar v. Dadabhai Cursetji Ashburner I.L.R. (1890) 14 Bom 353 that the provision of clause 12 of the Letters Patent as to 'suits for land' does not override the equitable jurisdiction assumed by English Courts in such case. My own view, however, is that Hclkar v. Dadabhai Cursetji Ashburner is not good law and that Holkar v. Dadabhai has been in fact overruled by the Privy Council in Harendra Lal Roy Chowdhuri v. Hari Dasi Debi 16 Bom. L.R. 400; but as the contrary has been held by two other Judges of this Court and as Holkar v. Dadabhai has been upheld and followed in a decision of the Appeal Court in Venkatraa Sethupathy v. Khimji Assur Virji (1916) 26 Bom. L.R. 535subsequent to the Privy Council decision, I have to treat Holkar v. Dadabhai as being still good law.

6. The question then, remains whether it necessarily follows that I have jurisdiction to give plaintiff' declaration that he seeks as against the second defendant, I think not. Such a declaration is not within the equitable jurisdiction that is assumed in English Courts in such cases, and which was the basis of the decision in Holkar v. Dadabhai. That equitable jurisdiction was explained in Norris v. Chambres (18151) 29, Beav. 246 and its limits stated in Deschamps v. Miller [1908] 1 Ch. 856. That equitable jurisdiction has also been very well summarised by Sir Lawrence Jenkins in Vaghoji v. Camaji I.L.R (1904) . 24 Bom. 249 6 Bom. L.R. 958. The learned Judge there says (p 2 56):-

An examination of the authorities appears to me to establish the proposition that a Court of Equity in England only assumed jurisdiction in relation to land abroad, where as 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 1' 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.

7. It seems to the to be clear that there is no Such privity between the plaintiff and second defendant and that Vaghoji v. Camaji is an express decision of this Court that I have no jurisdiction to give a declaration that has been asked for. Also in Norvis v. Chainbres the Court refused to declare a lien on foreign land.

8. Then the Advocate General contends that the charge which defendant No. 2 has was created in Bombay. But that is a consideration which seems to me irrelevant It would only be material if the suit were between the first and second defendants.

9. A reference has also been made to Order XXIV, Rule 1, and it is said that plaintiff could not have filed this suit without making-as required by that rule-every person interested in the mortgage, parties to the suit. But that rule is a rule of procedure and not a rule that can be invoked in order to extend jurisdiction, The object of the rule is that the rights of all parties interested in the mortgage should be determined in one suit and a multiplicity of suits avoided, That cannot apply whore the Court has no jurisdiction to adjudicate on the rights. It is true that in the case of Sorabji v. Rattonji I.L.R (1898) . 22 Bom. 701, where a foreclosure suit was brought by the mortgagee in respect of land outside the original civil jurisdiction of this Court, an order was made to join as a party the prior mortgagee Jivraj Ludha, but it does not appear from the judgment in that case that the point of jurisdiction was taken or that there was any conflict in that case between Jivraj Ludha the prior mortgagee and the puisne mortgagee, who brought the foreclosure suit, or that a declaration against Jivraj Ludha was sought.

10. The Advocate General also refers to a dictum in Venkatrao Sethupathy v. Khimji Assur Virji (1916) 26 Bom. L.R. 535 stated above by Scott C.J, to the effect that a suit in which a mortgagee seeks to have land sold is not a suit for land. I find it difficult to understand this dictum. An interest in land is a land and a suit in which an interest in land is realised must be a suit for land.

11. Again it is contended that if there is jurisdiction as in Holkav v. Dadabhai against the first defendant, it stands to reason that there must be jurisdiction against the second defendant who derives his interest from him. But a mortgage not in the English form does not even create privity of estate (see Thethalan v. The Eralpad Rajah, Calicut I.L.R. (1917) Mad. 1111) but it is not privity of estate that equity is concerned with but privity of contract or notice. There can be and is no such privity between the plaintiff and the second defendant

12. It is true that the effect of my decision will lead to an anomaly, for whereas according to Holkar v. Dadabhai, each of the mortgagees may file a suit against the mortgagor and have their rights as between each of them and the mortgagor determined in a suit in this Court, while the respective interests of the mortgagees inter se cannot be so determined. This, however, is the necessary effect of the judgment in Holkar v. Dadabhai and until that judgment is reversed by the decision of a full bench, that anomaly must persist.

13. I, therefore, decide the issue No. 1 in the negative.

14. The suit is accordingly dismissed with costs as against the second defendant.


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