1. This suit (O.S. No. 27 of 1917) has been brought to set aside the final decree in O.S. No. 15 of 1903 in the Kumbakonam Sub-Court and for recovery of the properties comprised therein. The first question we have to deal with in this appeal is whether that decree can be set aside as being absolutely void for want of jurisdiction. It is a decree in a mortgage suit instituted in 1903 when the Kumbakonam Court had jurisdiction over the place wherein the mortgaged property is situated. In 1907 the jurisdiction over this particular place was transferred from the Kumbakonam Court to the Mayavaram Court; and, at the time of passing the final decree, the Kumbakonam Court had no jurisdiction over the place where the mortgage properties lie. The Subordinate Judge, relying on Subbiah Naicker v. Ramanathan Chettiar : AIR1914Mad162 , has held that this decree was absolutely void, but has, for other reasons, dismissed the plaintiff's suit.
2. In urging the appeal the respondents support the decree on the ground that this finding of the lower Court is not correct; and it is argued that when the case has been properly instituted in a Court and is pending the mere transfer of territorial jurisdiction affecting that case does not transfer the proceedings which were actually pending in the original Court. It is also argued that inasmuch as the plaintiff not only consented to the jurisdiction of the Kumbakonam Sub-Court but actually invoked its jurisdiction in this particular case, he is barred by the principle of Section 21, Civil Procedure Code, from raising the objection now. No doubt, in Subbiah Naicker v. Ramanathan Chettiar : AIR1914Mad162 , it was observed that, ' unless the authority which changes the venue reserved the right to the Court which has lost the jurisdiction to continue pending proceedings affecting the property so transferred to another jurisdiction, such proceedings also, ipso facto, are transferred by the change of venue to the new Court. ' This observation in this particular case was made obiter; and when this case was considered by another Full Bench in Seeni Nadan v. Muthuswami Pillai : (1919)37MLJ284 , some of the obiter dicta in Subbiah Naicker v. Ramanathan Chettiar : AIR1914Mad162 . were overruled, although this one was not particularly specified. So long ago as 1900 in Sadasiva Pillai v. Kalappa Mudaliar I.L.R. (1900) M 39 it was held that the right of appeal which existed when the suit was filed in a District Court was not taken away by a subsequent notification which removed the jurisdiction of the District Court to try such a suit and in the course of the judgment, we find the following:--' The District Judge held quite rightly that notwithstanding the notification he had jurisdiction to hear suit on the ground that it had been instituted before the notification came into force. ' Similarly in Fedavalli Narasiah v. Mangamma I.L.R. (1903) M 538, it was held that where the jurisdiction of Civil Courts was taken away by Section 33 of Act II of 1894, this did not affect the suit which had been filed in a Civil Court before that section became applicable to the subject-matter of the suit. Again in Subbaraya Mudaliar v. Rakkhi I.L.R. (1908) M. 140 it was held that the Madras Estates Land Act did not take away the jurisdiction of Civil Courts to hear and determine suits which had been taken cognizance of by them before the Act came into operation. It is difficult to discover any difference in principle between those cases and the present case where the territorial jurisdiction has been altered; and in fact, it would appear that when the entire jurisdiction of the Civil Court has been taken away, such removal would apply with more force to pending suits than in a case where the jurisdiction of the Court over the particular place in which the property is situated has alone been removed. A large number of cases have been cited which deal with the jurisdiction of a Court to execute a decree properly passed by it, when territorial jurisdiction has been taken away after the passing of the decree. I do not think that much importance can be attached to these cases because there are certain special sections of the Code of Civil Procedure, i.e., 37, 38, 39 and 150 which specifically deal with this point and there is no special provision in the Act which deals with pending suits. The jurisdiction of a Court consists in its power to entertain suits, and when once a suit has been properly entertained, it is difficult to understand how that jurisdiction is removed unless it is specifically so done by the order of a competent authority. Once the suit has been entertained, the remaining proceedings taken therein are not taken by reason of any particular territorial jurisdiction, but in the exercise of the powers vested in the Court to try suits generally and consequently the only time at which the territorial jurisdiction comes into operation is at the time of filing the suit. Once the Court has seizin of the case, it has jurisdiction to try it to its conclusion, unless there is any reason for holding that that jurisdiction has been removed. If this be the right principle and I think it is, it would account for the fact that there is no provision in the Civil Procedure Code for the trial of suits, pending in a Court which had territorial jurisdiction at the time of their institution, after such jurisdiction has been removed before the trial is concluded. In this view, it appears to me that the final decree passed in this suit was not passed without jurisdiction.
3. Support to the view that territorial jurisdiction is not more important than and in fact probably not so important as the other form of jurisdiction of a Court is given by the provisions of Section 21, Civil Procedure Code. Under that section unless objection is taken to the place of suing, which has been held' to mean territorial jurisdiction, at the earliest possible opportunity, no objection can be taken in appeal or in revision. That section is not strictly applicable to the present case for this is not an appeal from the original decree but it has been extended in Zamindar of Ettiyapuram v. Chidambaram Chetty I.L.R. (1920) M 675 : MLJ 203 . to execution proceedings and in that case, it was held that the effect of the section is that objections which the appellate or revisional Court is thereby precluded from entertaining must be considered cured for all purposes unless taken before the passing of the decree in the original Court. In principle there is no distinction between applying the provisions of Section 21 to execution proceedings and applying them to a suit specially brought for the purpose of setting aside a decree. The principle underlying the section is that waiver of territorial jurisdiction is recognised by law, whereas it has been consistently held that other forms of jurisdiction, such as jurisdiction of the subject-matter or pecuniary jurisdiction cannot be waived by consent of parties. If territorial jurisdiction can be thus waived, it has admittedly been waived in the present case. I would therefore hold that for this reason also the final decree was passed with jurisdiction and it is therefore binding upon the plaintiff who was a party thereto.
4. There then remains for decision the question of whether the plaintiff is entitled to recover any portion of the plaint property. Under the preliminary decree it was provided that the mortgagors who had assigned their rights to the plaintiff could redeem the plaint property consisting of 5 velis and secure possession. The final decree was, however, passed in favour of the 1st defendant in the present suit, who was the 11th defendant in that suit at the request of the mortgagors. This request is contained in a petition, Exhibit II, in which the mortgagors stated that they had executed an agreement in favour of the 1st defendant, mentioning that the properties should be given to him and praying for delivery of the property and the documents connected therewith to him. This agreement was entered into between the mortgagors and the 1st defendant on the 21st of October, 1912, and Exhibit I purports to contain the terms of the agreement. It is now, however, pleaded that Ex. I in its present condition does not contain the terms of the actual agreement and it is alleged that the document has been tampered with since its execution so as to alter its terms. The agreement, as it now stands, is undoubtedly an agreement to convey the whole of the mortgage property to the 1st defendant, whereas the plaintiff now alleges that out of the 5 velis of mortgage property it was agreed that one veli should be retained by the mortgagors, as well as Rs. 1000 for which there is a provision in Exhibit I. This specific agreement was not pleaded in the present plaint for plaintiff sues for the recovery of the whole of the mortgage property on the ground that the final decree is void. When the 1st defendant filed a counter-suit, the subject-matter of Appeal No. 329 of 1920 for specific performance of the agreement, Exhibit I, making the plaintiff and the mortgagors parties, one of the mortgagors pleaded the agreement now set up. He did not then allege that Ex. I had been tampered with but he did state that though this was the real agreement between the parties, it was omitted to be expressed in the contract by the fraud of the plaintiff who falsely represented to him and his father that only 4 velis were mentioned in the document as the extent to be assigned to him. This statement was made on a perusal of a copy of Ex. I served on this mortgagor and before he had an opportunity of perusing the original, when the original was shown to him in the present suit, he stated in his evidence that the portion relating to the sale of only 4 velis had been erased and it is that plea which is now strenuously put forward in appeal. There is evidence to support this plea, for we find in Ex. L, a letter written by Muthuswami Pillai to his son Ramaswami--these two being the mortgagors--that he stated that if the arrangement with the 1st defendant were carried out, they were to save one veli of land and get Rs. 1,000. This letter was written few days before Ex. I was executed and we find that subsequently on the 22nd November, 1912 the father writes to the son saying, ' We have put in another petition praying that a sale deed excluding one veli of land should be executed. ' Again on the 25th November, 1912, he sent a notice to the 1st defendant intimating that he had agreed ' to execute a sale deed of some of the lands out of the said lands. ' No doubt, a reply was sent to this notice by the 1st defendant, Ex. M (3), in which he denied this allegation; but from that period the parties appear to have had disputes and instead of allowing the 1st defendant to recover all the mortgage properties in execution of the decree, Muthuswami Pillai himself obtained possession of the properties from the mortgagee, the 10th defendant, and remained in possession at any rate until August, 1913, when the 1st defendant took out execution. It is quite clear from this evidence that there must have been some talk of one veli of land being retained by the mortgagors and it is quite probable that an agreement was come to with that condition. When the erasure was pointed out by Ramaswami as P.W. 2--it was evidently an obvious erasure--it ought to have been explained by the 1st defendant. However, when the 1st defendant's Kariastan was examined, he admitted the erasure but was unable to give any explanation thereof. Before the trial the 1st defendant: died and his son, the 2nd defendant, was examined as D. W. 6 and he furnished no explanation at all. The document has been carefully examined by us and it is quite clear that there have been erasures in three different portions of the document in paragraph 3, in paragraph 4 and in the correction statement. The erasure has been very carefully done and a casual glance at the document would not reveal it, for the letters have been removed without removing much of the surface of the paper. The most obvious erasure is at the end of the document and possibly this was the only one to which attention was drawn in the lower Court. A more careful examination of the document has now revealed the further erasures and Mr. T. M. Krishnaswami Aiyar for the appellant says that with the aid of a magnifying glass he is able to make out some of the words which had been erased and that those words show that there was a provision in the document whereby the 1st defendant was only to get four velis of land. It is perhaps unfortunate that an issue as to the alteration of this document was not specifically framed, but it could not very well have been framed until the oral evidence had been begun, and it can hardly be said that the defendants have been prejudiced by the omission, for the fact of erasure was alleged at the earliest opportunity and the defendants' witnesses were cross-examined on the point. The document is not a registered document and ordinarily when a party relies upon a document which has obviously been altered by erasure or interlineation, etc., it is incumbent on him to explain how it occurred. The suggestion now made is that these erasures have somehow been inserted since the document was filed in this suit; but no explanation is attempted as to how this has been done and certainly the appearance of the document does not support the allegation. It is also argued that assuming the erasures to have been made as now alleged, the language of the document is inconsistent for the following reasons:--In paragraph 2 we have the following recital : ' We have this day presented a petition in Court requesting to deliver to you alone the documents, etc., which, according to law we have to get hack from the 10th defendant and to transfer to you alone the properties from the said person, and we have appointed you for the purpose. ' In paragraph 3 it is alleged that the words ' and one veli of land ' should be inserted after the words ' Rupees one thousand. ' These two paragraphs contemplate the execution of the decree by the 1st defendant in which case he was to get possession and obtain a transfer from the 10th defendant, the mortgagee, within four months thereafter he was to give the mortgagors Rs. 1,000 and one veli of land; paragraph 4 deals with the alternative case, viz., that if the mortgagors executed the decree and obtained delivery, they should execute a sale deed in respect of four velis in favour of the 1st defendant; and the Rs. 1,000 to be paid to them was included in the sale price. It is argued that there would have been a provision in paragraph 2 in respect of the one veli, that a transfer deed should be executed by the 1st defendant to the mortgagors and as we find no such provision there has been no erasure as suggested. It must, however, be remembered that the mortgagors had paid the mortgage amount and were still the owners of the mortgage property and, consequently, there was no necessity for a sale deed transferring to them a portion of their own land. The 1st defendant was merely to be the person appointed by the mortgagors to take delivery on their behalf. If he did so, he obtained possession and had merely to deliver up one veli to the original owners, no transfer deed being necessary as there was no transfer of title. This argument, therefore, that the document would be inconsistent, if the words said to be contained therein and erased had really been there fails.
5. It is then contended by the defendants that, inasmuch as the plaintiff seeks to recover this one veli of land and alleges fraud on the part of the defendants, it is incumbent on him to prove this fraud conclusively. The plaintiff does not, however, rely on this document but merely on an agreement between the mortgagors and the 1st defendant and points out that Ex. I, the documentary evidence adduced to prove this agreement is defective by reason of the erasures. It is further argued this document, Ex. I, has frequently been produced in Court on former occasions and no objection has been taken by the plaintiff until now. It was, no doubt, filed in the proceedings prior to the passing of the final decree and afterwards in claim proceedings and in a criminal case as to possession. This latter was as late as 1916, and the translation of the document appears in the printed papers in Criminal Revision Case No. 342 of 1916 against the order in the possession case. There it is in the same form as it is now, but is rightly pointed out by the appellant's vakil that in none of those proceedings were the actual terms of the agreement in dispute and that it was not necessary for the purposes of those proceedings for the plaintiff to examine the document carefully. As I remarked before, the erasures are not so obvious as to be observed at a casual glance and, consequently, it is impossible to attach very much importance to the fact that objection was not taken in the earlier proceedings. This suit was filed early in 1917 which was shortly after the criminal revision case was disposed of in May, 1916. It appears to me that the plaintiff has established the fact of these alterations in the document and, consequently, its value as evidencing the terms of the agreement is very seriously discounted. Against this evidence we have Exs. L and L (1) and M and the evidence of the mortgagor as P.W. 2, and this evidence is preferable to the mutilated document and I would, therefore, hold that the agreement was in respect of only four velis of land, and not five as contended for by the defendants.
6. It is then suggested that, inasmuch as the defendants obtained possession through the decree, that decree is binding on the plaintiff; but it is evident that the 1st defendant only obtained possession by being a person appointed by the mortgagors to take delivery and, consequently, title to the land would not pass to him thereby.
7. It is also argued that the present suit is barred by limitation on the ground that the present prayer, is, in effect, a prayer to enforce specific performance of the agreement; but, inasmuch as the mortgagor did actually obtain delivery of the mortgage property and was in possession after the decree thereby obtaining what was due to him under the agreement, this cannot be deemed to be a suit to enforce this agreement but is a suit to recover land to which he is entitled and of which he has been dispossessed. In that view, which I accept, the suit is within time.
8. I would, therefore, allow the appeal in part and give plaintiff a decree for the recovery of one veli of land out of the five velis mortgaged and order the parties to pay and receive proportionate costs.
9. It follows that Appeal No. 329 of 1920 must be dismissed with costs.
Venkatasubba Rao, J.
10. This appeal raises two questions: first, a question of law, which refers to the entire subject-matter of the suit; and secondly, a question of fact, which has a bearing only upon a portion of that subject-matter.
11. The point of law to be determined is, whether the final decree passed by the Subordinate Judge of Kumbakonam, dated the 25th of January, 1913, in O. P. No. 15 of 1903 is a nullity, for the reason that previous to the date of that decree, in virtue of a Government Notification, dated the 24th August, 1907, the Kumbakonam Sub-Court had ceased to have jurisdiction over certain tracts within the limits of which the suit properties are situated. The learned Subordinate Judge has decided the question in favour of the plaintiff holding that the decree is void as it was passed without jurisdiction, but he gave findings adverse to the plaintiff on the other issues raised and dismissed his suit. In my view the lower Court's judgment can be supported on the ground that the decree is not a nullity and it is therefore unnecessary to deal with the other points adverted to in the judgment of the learned Subordinate Judge.
12. His Lordship then states the facts.
13. I shall now state the point of law raised. The Subordinate Judge's Court of Kumbakonam had jurisdiction to try O.S. No. 15 of 1908 when it was filed in his Court. But the notification referred to already was passed on the 24th August, 1907 and runs thus :--' It is also hereby directed that the Subordinate Judge's Court of Kumbakonam shall after the said date (2nd September, 1907) cause to have and exercise jurisdiction over the Munsifis of Valangiman, Mayavaram and Shiyali and shall continue to have and exercise jurisdiction over the Kumbakonam Munsifi only. ' It is urged on behalf of Chokkalinga Pillai that the final decree passed by the Kumbakonam Sub-Court is not valid as that Court ceased to have jurisdiction over the mortgaged properties, and next it is said, the final decree and all that followed upon it being therefore of no effect the plaintiff is entitled to ignore the whole proceedings and recover from Chokkalinga Mudali the properties.
13. On the question as to whether the old Court of the Subordinate Judge of Kumbakonam or the new Court of the Subordinate Judge of Mayavaram had jurisdiction to pass the final decree long argument was addressed to us. But I refrain from expressing any opinion on it as in my view it is immaterial which of the two Courts had jurisdiction to deal with the further proceedings in O.S. No. 15 of 1903 which included the passing of a final decree in it. The question that has been raised is a very important one and the law upon it is uncertain. Whatever may be the right view, so long as there remains any doubt in regard to the Court having jurisdiction, great inconvenience and in many cases grave injustice is bound to result, and it is very essential that at an early date the legislature should enact clearly which Court in such circumstances has jurisdiction to proceed with the suit.
14. I am disposed to base my judgment on the ground that there has been a waiver of the plea of want of jurisdiction. It was open to the parties to waive objection regarding want of territorial jurisdiction and in this case not only did the mortgagors waive the objection, but as will appear from my statement of the facts they themselves invoked jurisdiction of the Kumbakonam Sub-Court and it is not therefore open to the plaintiff Chokkalinga Pillai to impeach the decree on the ground of want of jurisdiction. The principle underlying Section 21 of the Civil Procedure Code is that the plea of want of territorial jurisdiction may be waived. This section enacts an exception to the general rule that parties by mutual consent cannot confer upon a Court jurisdiction where it has not, the exception enacted being that when the question is one of territorial jurisdiction the plea may be waived. Section 21 runs thus:
No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.
15. Under the section, objection will not be allowed unless it was taken at the earliest possible opportunity and unless there has been a failure of justice. The section in terms no doubt does not apply, because it refers to the disallowing of the objection by an appellate or revisional Court. But the principle is of general application and if in appeal or revision the decree cannot be impeached it is equally reasonable that in a collateral proceeding it should not be allowed to be attacked. I respectfully adopt the statement of the law contained in Zamindar of Ettiyapuram v. Chidambaram Chetty I.L.R. (1920) M 675 : 39 MLJ 203 to the effect that the principle underlying Section 21 is that the objection to territorial jurisdiction is cured not merely for the purpose of the appellate and revisional Court but cured entirely and for all purposes. In my opinion again, this section applies when there is want of jurisdiction not merely at the institution of the suit but at any stage during the progress of it. It is difficult to believe that a more stringent rule was intended to be applied to cases where there has occurred a cessation of jurisdiction than to those where there has been initial absence of jurisdiction.
16. There is another aspect of the case which should not be overlooked. The foundation of the plaintiff's title is the preliminary decree. But if his argument that the Sub-Court of Kumbakonam lost jurisdiction subsequent to the notification is correct, the preliminary decree based as it was on a finding submitted by that very Court would be itself ineffectual and the plaintiff would thus be out of Court.
17. On the point of law, therefore, that this appeal raised, I concur with the finding of my learned brother.