Dinshaw D. Davar, Kt., J.
1. Haji Oomer Ebrahim, a Cutchi Memon, died about twenty-eight years ago leaving him surviving his widow Zulekabai the plaintiff herein, two sons named Elias and Oomer, and a daughter named Asibai also called Amibai. At the time of his death, he was possessed of two immoveable' properties situated at Mauritius. Two years after the death of Haji Oomer, his son Elias died and the other son Oomer died in 1899. They were both minors and unmarried at the time of their death. Oomer's daughter Asibai was married to Kaderdina alias Kadu Vyedina, a brother of the defendants herein. Asibai died on the 31st of January 1909 childless and intestate and Kaderdina died on the 26th of December 1908. The plaintiff claims that on the deaths of both her sons she became entitled to the Mauritius properties ' for a Hindu mother's interest therein.' She has filed this suit praying, amongst other things, ' that the defendants may be ordered to deliver to the plaintiff forthwith the title-deeds of the Mauritius properties.'
2. All the three defendants have filed their written statements. The first defendant did not appear at the hearing. The third defendant appeared in person. Evidently they have left the fight in the hands of the second defendant who is admittedly in possession of the title-deeds relating to the Mauritius properties. All the written statements run on very much the same lines except for one or two small differences in details. I propose to confine my attention to the second defendant's written statement. With regard to the Mauritius properties he denies that the plaintiff took a Hindu mother's interest therein. He says that succession to those properties is governed not by Hindu law but by Mahomedan law, and contends that on the death of Haji Oomer, the Mauritius properties devolved on his heirs, namely, his widow, his two sons and his daughter, and that on the respective deaths of those two sons, the widow and the daughter of Haji Oomer got by inheritance additions to their original shares in the said properties. He further sets up an agreement between the plaintiff and her daughter Amibai whereby the plaintiff agreed to sell her interest in the Mauritius properties to her daughter Amibai for Rs. 1062. As one of the heirs of Amibai he says he is ready and willing to pay to the plaintiff Rs. 1062 and counterclaims that on payment of this sum to the plaintiff she may be ordered to execute the necessary conveyance. He has added two of his remaining brothers as parties to the counterclaim.
3. On behalf of the second defendant the first two issues raised by the learned Advocate General are ;-
(1) Whether if this suit be regarded as suit for land this Court has jurisdiction to entertain it as the land in question is situated at Mauritius ; and
(2) Whether if it be not so regarded the suit is maintainable to far as it claims possession of title-deeds of the said land.
4. As these issues raised purely a question of law they were first argued before me and I reserved judgment. The question involved in the trial of these issues is: Is this a 'suit for land or other immoveable property ' in so far as it prays that the defendants may be ordered to deliver up the title-deeds of the Mauritius properties to the plaintiff? Clause 12 of the Amended Letters Patent deals with the Ordinary Original Civil Jurisdiction of this Court. It enacts that: 'The High Court of Judicature at Bombay, 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 within the local limits of the Ordinary Original Civil Jurisdiction of the said High Court.'
5. In this suit there is no question that the immoveable properties are situated beyond the local limits of the Ordinary Original Civil Jurisdiction of this Court. The main contention of the learned Counsel for the plaintiff is that this is not a suit for land or other immoveable property within the language and meaning of Clause 12. It is true that the plaint asks for no direct relief so far as the properties themselves are concerned, but is that enough to establish that this suit is not for land or other immoveable property? It is transparent on the reading of the plaint that the learned Counsel who drew the plaint was conscious of the difficulty of including the relief in respect of these properties in a suit in the Bombay High Court and he has, therefore, very adroitly left out the proper and necessary prayers which would, and ought to, have been there in order, if possible, to steer clear of the question of jurisdiction. Para. 10 of the plaint specifically states that:-
The defendants have set up the false case that the said properties at Mauritius belonged absolutely to the said Asibai. The plaintiff discovered that the said Kadoo Vyedina when he went to Mauritius had appointed one Mokhi Moosa to recover the rents in future on her own account and had put forward his wife as the owner of the said Mauritius properties.
6. This establishes that Asibai in her lifetime claimed to be the owner of these properties. Asibai and her husband went to Mauritius in 1906. Plaintiff herself went to Mecca in 1907. According to her own statement in her plaint she had been trying to recover the accumulated rent which her daughter and son-in-law recovered at Mauritius and the title-deeds which were in their possession ever since her return from Mecca. She has not been in possession of these properties or in the enjoyment of the rents and profits thereof any how since 1906. Under these circumstances what would one expect in a plaint drawn in the ordinary way? Even an inexperienced draftsman could not omit to pray first that it may be declared that plaintiff is the owner of the properties in question, that she has a Hindu mother's estate in the said properties, that the defendants have no interest in the same, and that she is entitled to receive the rents and profits thereof. The next prayer would be that the defendants may be ordered to hand over possession of the properties to the plaintiff and account to her for the rents and profits received and recovered by them and then would follow the prayer for handing over the title-deeds of the said properties to the plaintiff. The prayer for title-deeds would be merely ancillary to the main prayers for declaration of ownership and for possession of the properties. Prayers such as I have set out would necessarily have been in the plaint if the property in question had been within the jurisdiction of this Court. The plaint is drawn by a member of the Bar whose experience in drafting pleadings is second to none in Bombay, and it appears to me that the learned draftsman has deliberately omitted them in order to steer clear of the difficulties consequent on the properties being outside the jurisdiction of the Court. However that may be, in order to ascertain the true nature of the suit, the Court is bound to look further than the four corners of the plaint. Does a suit fall out of the category of a ''suit for land or other immoveable property' because the plaint is so drawn as to enable the plaintiff to say : ' I am not suing for the recovery of the land-I am only asking for the delivery to me of title-deeds relating to that land' The defendants say ' plaintiff is not the owner. She had a very small share which she has agreed to sell to the party through whom we claim. We are prepared to carry out the agreement and she is not entitled to the possession or custody of the title-deeds.' I cannot decide the question as to who is entitled to the possession of those title-deeds without deciding to whom the properties at the date of the suit belonged. This necessarily involves the investigation of the title to those properties amongst rival claimants. Before I could order the defendants to deliver up the title-deeds to the plaintiffs, I must hold that the devolution of the properties at Mauritius is governed by Hindu law as the plaintiff asserts and not by Mahomedan law as the defendants contend and ascertain who is now entitled to the ownership and possession thereof. I was told that a Commission had been issued in this suit and the Commission evidence leads to a third alternative that the devolution of immoveable property in Mauritius takes place according to French Civil Law. Does the clause of the Charter which governs and settles the Ordinary Original Civil Jurisdiction permit of my going into these questions when the lands lie in a Foreign country ?
7. There has been very considerable conflict of opinion as to the meaning and construction of the words 'suits for land and other immoveable property.' The Calcutta and other High Courts have taken very different views to those taken by the Bombay High Court till the year 1905. The Bombay High Court in its Ordinary Original Civil Jurisdiction has given to the words in Clause 12 of the Letters Patent a very limited and restricted meaning and has for many years entertained suits of all kinds relating to land only stopping short where the suit related directly and specifically to the recovery or disposal of immoveable property outside its jurisdiction. For this we have the high authority of the judgment of Sir Charles Sargent, Chief Justice, who, sitting with Mr. Justice Scott, held in the case of Holkar v. Dadabhai Cursetji ILR (1890) 14 Bom. 353, that the Court had jurisdiction to try a suit for specific performance of an agreement relating to land situated outside the Ordinary Original Civil Jurisdiction of this Court. We have decisions very much to the same effect in earlier cases but the judgment of Sir Charles Sargent settled the practice of entertaining suits for a variety of purposes relating to land outside the Ordinary Original Civil Jurisdiction of this Court and this case was followed by Mr. Justice Strachey in Sorabji v. Rattonji ILR (1898) 22 Bom. 701 though not without great doubt and hesitation, in a suit for foreclosure of land outside the jurisdiction of the Court. Although the Calcutta and Madras High Courts took different views, the decision of Sir Charles Sargent was followed by our Courts till we come to the judgment of Sir Lawrence Jenkins in Vaghoji v. Camaji ILR (1904) 29 Bom. 249. In that case the Chief Justice, Sir Lawrence Jenkins, in a considered judgment, sitting with Mr. Justice Batchelor, has reviewed all the authorities and pronounced judgment by which, in the words of Sir R. S. Benson, Chief Justice, Madras, in Sundara, Bai Sahiba, v. Tirumal Rao Sahib ILR (1909) Mad. 131, the authority of the decision in Holkar v. Dadabhai ' is considerably shaken if not overruled '.
8. I think it would be here useful to consider some of the leading cases on this subject decided by the other High Courts. In The Delhi awl London Bank v. Wordie ILR (1876) Cal. 249, the Chief Justice, Sir Richard Garth, after discussing several English cases as to the jurisdiction of Equity Courts, makes some observations which are very pertinent to the question I am now considering. He says :-
But those oases are all more-or less distinguishable from the present, which depends not so much upon the jurisdiction generally exercised by Courts of Equity, as upon whether this suit is brought substantially ' for land'; that is, for the purpose of acquiring title to, control over, land within the meaning of a particular clause in the Charter ; and, we think, having regard to what is the real object of the suit, and to what are the rights and contentions of the respective parties, it is impossible to say that this is not substantially a suit for land.
9. In Hara Lall Banerjee v. Nitambini Debi ILR(1901) Cal. 315, which was a suit for construction of a will and the administration of the testator's estate and wherein possession of properties outside the limits of the Ordinary Original Civil Jurisdiction of the Calcutta High Court was one of the prayers, it was held that that was a suit for land within the meaning of Clause 12 of the Letters Patent and the suit was dismissed.
10. Ebrahim Ismail Timol v. Provas Chander Mitter ILR (1908) Cal. 59 was a case wherein the plaintiff sought to recover rents and profits pending termination of the lease of land beyond the jurisdiction of the Court. The learned Judge hearing the suit, in the course of his judgment at p. 65, makes these observations:-
What the plaintiff is seeking to do is to do something, which will directly affect the property, namely, to obtain possession of it by receipt of rent. Under these circumstances I hold that this is a suit for land outside the jurisdiction of this Court and consequently that it cannot be brought as far as prayers 3 and 4 are concerned.
11. In Nalum Likshimikantham v. Krishnasawmy Mudaliar ILR (1903) Mad. 157 Mr. Justice Moore goes further and says :-
I would indeed be prepared to go further and to hold that the phrase'Suit for land or other immoveable property' as used in Clause 12 of the Letters Patent includes all suits mentioned in Clauses (a), (b), (c), (d), (e) and (f) in Section 16 of the present Code of Civil Procedure.
12. In the case of Sundara Bai Sahiba v. Tirnmal Rao Sahib ILR (1909) Mad. 131, to which I have already referred above, the Chief Justice and Mr. Justice Sankaran Nair held that a suit for maintenance by a widow praying that it may be a charge on a specified immoveable property would be a suit for that immoveable property as the decree would operate directly on the land.
13. The decision of our Court in Vaghoji v. Camaji ILR (1904) 29 Bom. 249 is in harmony with the decisions of the Calcutta and Madras Courts to which I have referred, and whether it overrules the decision in Holkar v. Dadabhai or merely distinguishes the case which Sir Lawrence Jenkins had in hand from that case, it is not for me to say, but it lays down in very clear and explicit language that the words ' suit for land ' do not mean only suits for the recovery of land. Whatever may have been the doubts and difficulties in other cases it seems to me, however, quite clear that this suit, so far as it relates to the title-deeds of the Mauritius properties, though ostensibly a suit for the recovery of the title-deeds alone, is not only substantially a suit for land but is in effect and in reality a suit for establishing title to that land and the recovery of the possession of that land.
14. The third issue raised by the Advocate General is whether in any event the plaintiff is entitled to possession of the title-deeds as against the second defendant. If I find on the first two issues in favour of the plaintiff I would have to enter into an enquiry as to what law governs the devolution of immoveable property of a Cutchi Memon, situated in Mauritius, whether the title-deeds changed hands in 1906 under the circumstances alleged by the plaintiff or by virtue of the agreement set up by the defendants, who is the present owner of these properties and who is interested in the rents and profits thereof and who is entitled to the present possession of the said properties. Under the guise of a claim to title-deeds the suit clearly involves the trial of questions of title to land and, seeks the recovery of that land. That land is beyond the'' Ordinary Original Civil Jurisdiction of this Court and under Clause 12 of the Letters Patent I have no jurisdiction to entertain the suit so far as it relates to the title-deeds of the Mauritius properties.
15. I find the first issue in the negative and for the defendants. In view of this finding it is unnecessary to find on the second issue.
16. I will deal with costs of the trial of these issues when I dispose of the rest of the suit.
17. Suit to be on Board this day week as a part-heard case for hearing on the other issues.
18. [The suit was subsequently placed on Board and with the plaintiff's consent dismissed with costs.]