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Abdullabhoy Esoofally Chas Vs. Akbarally SamsuddIn Raja - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1736 of 1928
Judge
Reported inAIR1944Bom93; (1943)45BOMLR1102
AppellantAbdullabhoy Esoofally Chas
RespondentAkbarally SamsuddIn Raja
Excerpt:
high court-original side-jurisdiction-administration suit-property outside british india.;the high court on its original side has no jurisdiction to entertain a suit for administration of immoveable properties situate outside british india.;british south africa company v. companhia de mocambique [1893] a.c. 602, and ramacharya v. anantacharya (1893) i.l.r. 18 bom. 389, followed.;mahomedally adamji v. abdul hussein (1923) i.l.r. 48 bom. 331 : s.c. 26 bom. l.r. 163, govindlal bansilal v. bansilal motilal (1921) i.l.r. 46 bom. 249 : s.c. 24 bom. l.r. 196, srinavassa moorthy v. venkata varada ayyangar (1906) i.l.r. 29 mad. 239 and srinivasa moorthy v. venkatavarada iyengar (1911) l.r. 38 i.a. 129 : s.c. 13 bom. l.r. 520, distinguished. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj]..........order administration and partition of properties set out in the pleadings which are situate out of british india, namely partly at sidhpur within the territory of the baroda state and partly in siam which is now an enemy occupied territory. in doing so as regards the property in sidhpur is concerned this court is invited to determine title to that property as between parties to the suit.8. in this connection i would start my observations with reference to halsbury, vol. vi, p. 218, para. 266, wherein the general principle of jurisdiction is stated as follows :the english courts have in general no jurisdiction to determine directly the title to a foreign immoveable, [property], nor can they entertain any action which substantially involves the determination of such title. thus no action.....
Judgment:

Coyajee, J.

1. This is an administration suit. The parties to the suit are Mahomedans and heirs of one Samsuddin Jivaji Raja, who died leaving moveable and immoveable properties. The immoveable properties are situate partly in Bombay, partly in Sidhpur in the territory of His Highness the Maharaja of Baroda, and partly in Siam, which is now an enemy occupied country. Although the suit is for the administration of the estate of the deceased, it is a suit for partition. On the death of Samsuddin Jivaji Raja his heirs became tenants-in-common of the properties left by him. That is why the eminent draftsman who has drafted this plaint has asked in prayer (c) that the estate may be administered by and under the directions of this Court and in prayer (f) that the shares of the plaintiffs and the defendants of the estate may be ascertained and declared and that the estate of the deceased Samsuddin may be partitioned by and under the directions of this Court between the parties entitled to the same.

2. In paragraph 4 of the plaint it is alleged that the deceased left seven immoveable properties described in the schedule annexed to the plaint and marked (B) thereto, In that schedule item No. 4 refers to a house at Islampura in Sidhpur. As regards the item the written statement of defendant No. 1 says as follows (para. 4)

the property fourthly described in the said exhibit (B) namely the house at Islampura was given as a gift by the said deceased to this defendant.

Defendant No. 1 has in his written statement denied that the house at Islampura belonged to the deceased Samsudin or that it formed part of his estate. There is a dispute as regards the title to the property between the parties to the suit, namely, whether it belonged to the deceased at the time of his death or whether it was gifted to defendant No. 1 as alleged by him. The allegations made on behalf of defendants Nos. 4, 5 and 8 are to the effect that defendant No. 1 not only has no title to the property but that he had wrongfully conveyed it to his wife. See exhibit 3. It is further alleged that the wife of defendant No. 1 who is dead has left as her heirs her husband and several children who are not parties to the suit and are not before the Court.

3. In these circumstances Mr. Manecksha for defendant No. 1, after the caste proceeded, raised certain issues, and the first amongst these runs as follows :

Whether this Court has jurisdiction to administer the estate of the deceased Samsuddin Jivaji Raja situate at Sidhpur and at Siam

I have decided to answer this issue first before I proceed with the suit further.

4. It is a well-known axiom that the Court must as far as possible be inclined to extend rather than restrict its jurisdiction taking all the circumstances and facts into consideration. Moreover in administration suits it must try and effect as complete an administration as possible and not deal with the matter piecemeal.

5. In Halsbury's Laws of England, Vol. XIV, p. 446, para. 850, it is stated that :

The judgment for the administration of a deceased's personal estate is not limited to assets within the jurisdiction, even where he died domiciled abroad.

Moreover it is a principle of law that where the trustees are within the jurisdiction, the Court will, acting on jurisdiction in personam, order them to carry out the provisions of the trust as they are in duty bound to do.

6. It is also pointed out in Halsbury, Vol. VI, p. 224, para. 273, that

The English Courts have jurisdiction to enforce a trust relating to foreign immoveables where the defendant is in this country, and therefore have jurisdiction to decide whether there is or there is not in existence a valid trust of such immoveables, so that the provisions of such trust will be enforced by English Courts although the immoveables are situate in a foreign territory.

7. The question before me is whether this Court will order administration and partition of properties set out in the pleadings which are situate out of British India, namely partly at Sidhpur within the territory of the Baroda State and partly in Siam which is now an enemy occupied territory. In doing so as regards the property in Sidhpur is concerned this Court is invited to determine title to that property as between parties to the suit.

8. In this connection I would start my observations with reference to Halsbury, Vol. VI, p. 218, para. 266, wherein the general principle of jurisdiction is stated as follows :

The English Courts have in general no jurisdiction to determine directly the title to a foreign immoveable, [property], nor can they entertain any action which substantially involves the determination of such title. Thus no action will lie in this country to obtain possession,...of foreign land, since the question of title must be determined in order to discover the rights of the parties.

For the same reason the Courts have no jurisdiction to determine the validity of a will of foreign immoveables.

9. It is clear that the two sets of properties referred to above are beyond British India and therefore beyond the territorial jurisdiction of this Court where the writ of this Court cannot and does not run.

10. I shall now consider certain authorities cited by Mr. Manecksha in support of his contention that this Court has no jurisdiction. The first case referred to by him is British South Africa Company v. Companhia de Mocambiqiue [1893] A.C. 602. In that case it was held by the House of Lords that the Supreme Court of Judicature had no jurisdiction to entertain an action to recover damages for trespass to land situate abroad. In that case the decision of the Court of Appeal was reversed and the decision of Lawrence and Wright JJ. restored. Mr. Cohen Q.C. submitted that the Courts at Westminster had no Original Jurisdiction outside the realm, though in some cases they acquired jurisdiction by local fiction, but that the Courts always refused to extend the fiction to cases of trespass to land. The learned Counsel in. that case also cited cases to show that actions affecting real property were strictly local in their character and could not be tried in this country when they affected foreign countries. He further submitted that no case had been or could be cited in which there had been a declaration of title to land abroad. The learned Counsel for the respondents tried to meet this by saying that the question of title in an action to recover damages for trespass to land came in incidentally by way of evidence to prove the case only. He further contended that there was no competent Court where the land was situate and that there was no Court in the world except in that country where the action was laid.

11. After discussing the question whether trespass to land could be tried in England independent of the title to land Lord Herschell quoted Story; on Conflict of Laws, 8th edn., (Section 551, p. 769), as follows (p. 622) :

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 immoveable property.

Thereafter the learned Law Lord observed as follows (p. 624) :

No nation can execute its judgments, whether against persons or moveables or real property, in the country of another. On the other hand, if the Courts of a country were to claim, as against a person resident there, jurisdiction to adjudicate upon the title to land in a foreign country, and to enforce its adjudication in personam, it is by no means certain that any rule of international law would be violated.

12. Later on at p. 625 Lord Herschell observed why the distinction was drawn, and pointed out that it was because the Courts had no power to enforce their judgment dealing with the land itself, where it was outside their territorial jurisdiction, and further observed at p. 626 that whilst Courts of Equity had never claimed to act directly upon land situate abroad, they had purported to act upon the conscience of persons living within the jurisdiction. In reversing the judgment of the Court of Appeal Lord Herschell observed that the grounds upon which the Courts had hitherto refused to exercise jurisdiction in actions on trespass to lands situate abroad were substantial and not technical.

13. Before referring to Ramacharya v. Anantacharya I.L.R. (1893) 18 Bom. 309 cited by Mr. Manecksha I would like to refer to the case of Ramchandra Dada Naik v. Dado Naik (1861) 1 B.H.C.R. App. ixxvi. It was there held by Sausse C.J. that the late Supreme Court had no power to decree a partition of ancestral property situate beyond the limits of its jurisdiction. In refusing to entertain the suit the learned Chief Justice observed that the bill did not disclose what was the law which regulated the succession to landed estate in the independent territory of Sangli State and relied upon Elliot v. Lord Minto (1821) 6 Madd. 16, which decided that every question relating to real estate must be determined by the law of the country where the estate was situate, because the Courts must be cautious (p. 84) :

in not overstraining its power of forcing upon the parties who are substantially strangers to its jurisdiction the laws by which it is governed, but which may be very different from those which regulate rights in the subject-matter of the suit in a foreign State.

14. Mr. Manecksha has referred me to Ramacharya v. Anantacharya. In that case it was held that British Courts could not entertain a suit for the partition of property situate beyond the jurisdiction, that is outside British India, although part of the other property was situate within jurisdiction. It was contended by Mr. Jardine in that case that the party coming to Court ought to bring into hotchpot properties situate outside the jurisdiction and the Court which had jurisdiction to order partial partition would not grant relief until the plaintiff in equity submitted to partition of the whole estate. Mr. Justice Telang observed that part of the property alleged to be family property lay outside the jurisdiction of the Court and indeed outside British India. It is plain that the Court has no jurisdiction and no machinery for partitioning such property. He further observed that under the Civil Procedure Code it had always been possible by resorting to appropriate procedure to give a single Court jurisdiction over the whole of the family property where such property was not outside British India. He held that the Court had no jurisdiction to partition the property situate at Gwalior. The observations of Mr. Justice Fulton are very pertinent to this case. He observed that the plaintiff, who admittedly held property at Gwalior, maintained that it was not family property, so that the question of title was raised in that case, He observed further that if it be admitted that such property was joint, it would at first sight seem inequitable to grant partition of property in British India without taking into account the other property, but relying upon Ramchandra v. Dada Naik he held that the properties in the territories of an independent Chief could not be dealt with by the Court and the only decision to the contrary which was referred to where such jurisdiction was exercised was commented upon as follows, namely, that no objection appeared to have been taken on the point in that case and possibly that fact was not brought to the notice of the Court. The judgment of the Bombay High Court in Ramacharya v. Anantacharya is in line with the observations made and the principle laid down in British South Africa Company v. Companhia de Macambique, and is binding on this Court unless I am referred to any decision which has overruled this one.

15. Mr. Somjee argued and tried to distinguish the above case on the ground that this was a case under Section 16 of the Civil Procedure Code, 1908, and is therefore of no effect, because we are dealing now with Clause 12 of the Letters Patent. There is no reference whatever in the case to Section 16 of the Civil Procedure Code throughout and the judgment is based entirely on broad principles of jurisdiction, and deals definitely with the case where the property is situate outside British India and where the title to land of property outside British India is involved.

16. My attention has been drawn by Mr. Somjee and by Mr. Peerbhoy to the comments of Sir Dinshah Mulla in his Civil Procedure Code, under Clause 12 of the Letters Patent at p. 1393, where the learned commentator says that :

The Bombay High Court has held that an administration suit is not a suit for land although there are immoveable properties alleged to belong to the estate of the deceased beyond jurisdiction, and the High Court therefore can entertain Such a suit and determine the question whether they belonged to the deceased at the time of his death.

The above observation is too broadly stated, because if reference is made to the cases cited in support of it, they are all cases where the property though outside local jurisdiction is within British India and therefore fall within the remarks of Mr. Justice Telang in Ramacharya v. Anantacharya at p. 392.

17. Mr. Boovariwalla has referred me to two cases. The first case is Mahomedally Adamji v. Abdul Hussein I.L.R. (1923) 48 Bom. 331 which is a case under Clause 12 of the Letters Patent, and says that the High Court can in an administration suit determine the question whether certain immoveable property situate outside the territorial limits of its jurisdiction belonged to the deceased at the time of his death, even though leave under Clause 12 of the Letters Patent was not obtained. The properly outside the jurisdiction in that case was an immoveable property situate at Kurla. The suit was filed on the Original Side of this High Court. The judgment is the judgment of Mr. Justice Shah whose judgment in Abdul Hussein v. Mahomedally Adamji I.L.R. (1921) 46 Bom. 772 will be referred to by me later on. So that the case is no authority for the proposition that the High Court of Bombay has jurisdiction to administer properties outside British India. Mr. Boovariwalla also referred me to Ewing v. On Ewing (1883) 9 App. Cas. 34. That case referred to personalty only situate in Scotland when the Court entertained jurisdiction in England and has no bearing on the question of immoveable properties, because English Courts always made a distinction between the administration of personalty and realty situate in a foreign territory.

18. Now I come to a case which has been relied upon very strongly by Mr. Somjee and Mr. Boovariwalla, viz. Govindlal Bansilal v. Bansilal Motilal I.L.R. (1921) 46 Bom. 249 . It was a case under Clause 12 of the Letters Patent and leave of the High Court was asked for, as immoveable property was partly situate in British, India and partly in the Hyderabad State outside British India and outside the territorial jurisdiction of the High Court, The case was one of granting or refusing leave under Clause 12 of the Letters Patent. The trial Judge Mr Justice Pratt refused to grant leave on the ground that the High Court had no jurisdiction to entertain a suit for partition of lands out of British India although part of the properties was within the local limits of its jurisdiction. He held that Clause 12 of the Letters Patent laid down a rule of local venue like that in Section 16 of the Civil Procedure Code, and did not confer jurisdiction over foreign lands or lands without the limits of the Presidency. I am referring to this part of the learned Judge's observations because it was strenuously contended before me that Clause 12 conferred unlimited jurisdiction on the High Court and therefore the Court had jurisdiction beyond British India. I fail to see how the Crown can confer on this High Court by Clause 12 of the Letters Patent jurisdiction over territories beyond its sovereignty, for the logical conclusion of that would be that this Court had power to decide questions of title to immoveable property situate in France or the United States of America.

19. The question in the case of Govindlal v. Bansilal was of granting or refusing leave under Clause 12. Macleod C.J., in confirming the order, made certain observations. The learned Chief Justice has observed that (p. 260) :-.undoubtedly where part of the property...is outside British India, the Courts would certainly be very slow to grant leave, so that the Court could exercise jurisdiction over such property, as undoubtedly difficulties would arise in the execution of any decree that might be passed in the suit, unless all parties were agreed that the Courts should exercise jurisdiction and would assist in carrying out the terms of the decree that would be passed in the suit.

20. The observations of the learned Chief Justice must be read in connection with the facts and circumstances of the case and in the light of the caution mentioned in the judgment. Leave was asked for so as to include in the counterclaim all joint family properties out of British India. The difficulty in that case was one created by the Courts of Hyderabad and not by the parties; there was no question of deciding title to land in a foreign State between the parties to the suit. The learned Chief Justice observed that he could not exclude the possibility of a partition suit being filed in which all parties were anxious that the joint family properties wherever situate should be divided according to law. He also observed that (p. 261) :-

Of course, if the leave is granted still that does not prevent the Court at the hearing deciding that no direction should be given with regard to property situate outside the jurisdiction, but that the parties should be left with regard to that pro perty to a separate suit.

21. Mr. Justice Shah at p. 267 referred to the question of leave being, granted in cases where property was situate out of British India and after mentioning the cases on the point made it clear that 'In this appeal, however, I do not propose to decide this question,' and that the point would have to be decided when such a question was raised.

22. I, therefore, am of opinion that the case of Govindlal v. Bansilal did not give any ruling on the question raised before me and does not overrule the case of Ramacharya v. Anantacharya.

23. Mr. Peerbhoy has referred me to two cases : Srinivasa Moorthy v. Venkata Varada lyengar I.L.R. (1906) Mad. 239 and to the decision of the same case in appeal by the Privy Council in Srinivasa Moorthy v. Venkata Varada lyengar . But these cases were cases where although the property was outside the territorial jurisdiction of the Court, the Court exercised its jurisdiction over trustees in personam ordering them to carry out the duties as explained in Halsbury, Vol. VI, p. 224, para. 273, already referred to. These cases have no bearing on the question before this Court.

24. In the light of what I have said above, I am of the opinion and I hold that this Court has no jurisdiction to administer immoveable properties out of British India.


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