Murray Coutts Trotter, Kt., C.J.
1. I have had the advantage of reading the judgment about to be pronounced by my brother Ramesam, and I entirely concur in it. I only add a few words of my own in order to bring out certain points which he has made with which I find myself in specific and emphatic agreement.
2. The first is that our opinion is directed to a concrete and isolated case, that of a suit by a purchaser of land for specific performance against his vendor of the contract for the sale of land entered into by his vendor; and is not to be considered as containing in gremio analogies which can be usefully applied to such subject-matters as vendors' suits for specific performance, suits on mortgages, suits for maintenance, suits for the wrongful removal of surface trees or subterranean coal. A number of decisions have been cited to us on these and kindred topics. Some of them I think to be wrong, others very doubtful, but of all of them it appears to me to be enough to say that they do not directly bear on the point before us and that our decision leaves future discussion on such questions entirely at large.
3. Secondly, I am satisfied that a phrase like 'suit for land' can only be defined, if it has to be defined, by what logicians call 'enumeration of categories,' as Mackay, J., forcibly pointed out in the course of the argument. That is to say, that the legislature can only help us by setting out what it intends to be included in the term 'suits for land' and what excluded; a method of legislation which has been pursued not unsuccessfully in the explanations and illustrations to many Sections of Indian Acts. That has not been done here; and we are left to ourselves to fit the statutory words as best we can to each case as it comes before us. Such attempts as have been made to arrive at a definition on other lines have only resulted in prefixing an adverb to the words of the statute--the favourite one being 'substantially.' That seems to me merely to add an unnecessary task to our original one: the imponderable adverb 'substantially' itself calls for a definition, a task more difficult in my opinion than the definition of the actual words of the Letters Patent. The truth is that many Indian statutes fall into one of two extremes. They sometimes throw at the Courts cryptic expressions without a word of explanation or illustration to show what was the real intention of the Legislature and this is an instance. On the other hand, it sometimes passes Acts which are obviously intended to deal with every conceivable case that can arise--which means of course every case that was present to the mind of the draftsman. The Limitation Act offers a striking example of both. The Act with all its 31 Sections and 183 articles has no specific article to deal with so obvious a case as that of a simple suit for debt. On the other hand into Article 183 it has introduced the term 'revived' without a word of definition or explanation; the inevitable result has followed that the Indian Courts for half a century have been compelled to delve in venerable English reports to acquire learning about writs of scire facias and the like, a task which ought never to have been set them.
4. Finally, I wish to make it clear that my decision is not based on any consideration that specific relief was as a matter of history administered by Courts of Equity and not Courts of Common Law in England, or even that in its essence and nature it was an equitable and not a legal remedy. These considerations do not seem to me to go to the root of the matter for this country, for the simple reason that here the remedy, whatever its origin be, is prescribed by statute. But I do not think that the statute overrides one fundamental juridical distinction, which obtains in every organized community in the world: vis., that between decrees that affect the status of individuals, or bring about proprio vigore an immediate change in the ownership of property, and decrees which merely purport to compel the defendant to do or abstain from doing something which the Court orders. In the technical language of law, it is known as the distinction between actions in rem and actions in personam; but the distinction, I think, is not technical, but based as I have said on universally accepted juridical canons.
5. I therefore agree that our answer should be that this is not a suit for land.
6. This appeal arises out of a suit for specific performance of a contract whereby defendants 1 and 2 agreed to convey to the plaintiff for a consideration of Rs. 55,000 their right, title and interest in Konasamudram village in the Karvet-nagar Zamindari and for other reliefs.
7. The third defendant is a mortgagee of the suit properties and it was alleged that he also agreed to convey to the plaintiff his right over the suit properties. Defendants 4 to 6 were impleaded as subsequent purchasers of the properties with notice of agreement in favour of the plaintiff. The suit was filed on the Original Side of the High Court. The village of Konasamudram is situated in the Chittoor District and is not within the limits of the ordinary original jurisdiction of the High Court. At the time of the trial a question was raised as to the jurisdiction of the Original Side to try the case. The jurisdiction of the Original Side turns upon the construction of Clause (12) of the Letters Patent issued for the Madras High Court (28 and 29 Vic, Chapter XV). Clause (12) empowers the High Court to 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 or in all other cases if the cause of action shall have arisen, either 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, or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits.
8. It is admitted that defendants 1 to 3 were residents of Madras at the time of the institution of the suit. The learned trial Judge came to the conclusion that the present suit was a suit for land within the meaning of Clause (12) of the Letters Patent and as the land is not situated within the limits of the ordinary original jurisdiction he held that the suit did not lie and dismissed it though he recorded also findings on other issues. The plaintiff filed this appeal, which has been referred to a Full Bench by my Lord the Chief Justice and Madhavan Nair, J., having regard to the Indian authorities.
9. There is a very large body of case-law on Clause (12) of the Letters Patent and the construction of that clause has led to considerable diversity of opinion. There has been a conflict of opinion on the construction of the various parts of the clause and on their bearing on one another and also on the meaning of the expression 'suits for land or other immovable property.' I will first deal with the question whether the present suit should be regarded as a suit for land or other immovable property. If this question is answered in the negative, then on any view of the rest of the clause, the Original Side has jurisdiction to try the suit, for the defendants dwell or carry on business, or personally work for gain, within the limits of the ordinary original jurisdiction.
10. The case has been very exhaustively argued by the learned Advocates for the appellant and for the respondents and between them all the decisions of the Madras, Bombay and Calcutta High Courts bearing on Clause (12) and the Privy Council decisions have been referred to and commented on before us. They range from Ramdhone Shaw v. Nobumoney Dossed (1865) Bourke's Reports to Goculdas v. Chaganlal I.L.R. (1927) C. 655 decided last year (1927). An examination of these decisions shows that it is impossible to reconcile them even omitting those which expressly purport to differ from each other,--the attitude of the same Judge with reference to the expression 'suit for land' sometimes varying according to the nature of the suit before him, the inclination being to give a wider meaning to the expression if it is a suit of one kind such as a suit on a mortgage and to give a narrower meaning if the suit is of a somewhat different category. In the case of other Judges the tendency has been to give the widest possible meaning to the expression. Under such circumstances it is obvious that any attempt to define the term 'suit for land or other immoveable property' on any general principles, that is, in abstract terms only, without reference to concrete details, is bound to end in failure, and, however thoroughly one may analyse the discussion, the result is not likely to be more successful. The very able and exhaustive judgments of Marten, C.J., and the other Judges in Hatimbhai H ass anally v. Framros Eduljee I.L.R. (1927) B. 516 illustrates this statement--a case heard by a Full Bench of seven Judges, two Judges dissenting in the final decision. I therefore prefer to take a different course of action in dealing with this case. I would eliminate those cases dealing with suits of a nature different from the one before me and would confine myself to suits for specific performance only. For instance, T would not discuss cases relating to suits on mortgages. A suit for redemption may easily be considered as a suit for land. A suit for foreclosure, though the primary object is to recover money, may also be described as a suit for land as there is'a prayer for recovery of land by reason of the foreclosure, but greater difficulty arises if it is a suit for sale; though the Court may have to sell the land, what the plaintiff recovers is always money and it is difficult to describe the suit as one for land; and yet after the definition of 'mortgage' in the Transfer of Property Act, one may say that every mortgage is a transfer of an interest in immovable property and an action on a mortgage, even where its object is to recover money by sale, is really a mode of reducing that interest in immovable property to enjoyment. I do not propose to consider which is the correct view as between these two conflicting views. The early decision of the Madras High Court in Nalum, Lakshimikantham v. Krishnasztfami Mudaliar I.L.R. (1903) M. 157 and the decisions in India Spinning and Weaving Co., Ltd. v. Climax Industrial Syndicate I.L.R. (1925) B. 1 (F.B.) and Hatimbhai Hassanally v. Framros Eduljee I.L.R. (1927) B. 516 and the case in In the matter of the Petition of S.J. Leslie (1872) 9 Beng. L.R. 171 need not therefore be considered. Similarly the decision in Juggodumba Dosstee v. Puddomoney Dossee (1875) 15 Beng. L.R. 318., where the suit related to a trust and the plaintiffs, alleging that the defendant committed breaches of trust, prayed for the establishment of their right as joint trustees and for the settlement of a scheme, does not come in for discussion here. So also The Delhi and London Bank v. Wordie I.L.R. (1876) C. 249, Goculdas v. Chaganlal I.L.R. (1927) C. 655 and Krishnadoss v. Ghanshamdos (1924) 49 M.L.J. 311. In the case of Kellie v. Fraser I.L.R. (1877) C. 445 the suit was one to file an award, the award covering landed property outside Calcutta. In Jnggerauth Doss I.L.R. (1878) C. 322 v. Brijnath Doss and Zulckabai v. Ebrahim Haji Vyedina I.L.R. (1912) B. 494 the suits were merely to recover title-deeds. In the following group of cases though the suit was not actually for recovering land, an issue regarding title to the land or some interest in it had to be considered for giving the relief. In The Official Assignee of Madras v. Ramaswami Aiyangar : (1912)23MLJ726 the suit was to avoid an encumbrance on the land. In Srinivasa Aiyangar v. Cunniappa Chetty : AIR1914Mad88 the suit was for the recovery of damages for trees cut and carried away from plaintiff's casuarina plantation, the title to the plantation being in question. Under the General Clauses Act X of 1897 (Clause 25 of Section 3) 'immoveable property' includes land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. The suit for trees in Srinivasa Aiyangar v. Cunniappa Chetty : AIR1914Mad88 may be considered as a suit for immoveable property. This was affirmed in Srinivasa Aiyangar v. Kannappa Chetty (1915) 30 M.L.J. 120. In Sudamdih Coal Co., Ltd. v. Empire Coal Co., Ltd. I.L.R. (1915) C. 942. The suit was for compensation for wrongful cutting and removal of coal. In Vaghoji v. Camaji I.L.R. (1904) B. 249 the suit was for a declaration of the plaintiff's right to Talao and for an injunction. In Pranlal v. Goculdas : AIR1925Bom333 the suit was for declaring the priority of one mortgage over another. Therefore the above group of cases beginning with The Official Assignee of Madras v. Ramaswami Aiyangar : (1912)23MLJ726 do not call for any consideration. In Sundara Bai Sahiba v. Tirumal Rao Sahib I.L.R. (1909) M. 131 : 1909 20 M.L.J. 103 and Yeshvadabai v. Janardhan : AIR1924Bom14 the suits were for maintenance seeking to make it a charge on land within the limits of the original jurisdiction but the defendant was not a resident within the said limits. On the ground that the suits for maintenance were suits for land the suits were decreed. It is noticeable that these two cases are in one sense the converse of most other decisions on the subject; whereas, in other cases, the defendant raised the plea that the suit is one for land and therefore the suit does not lie, the land being outside the limits of the original side, in these two suits, it was the plaintiffs that contended that the suit was one for land, the land being within the limits of the original jurisdiction, and it was the defendant that contended that the suit was not one for land. The suits being for maintenance, one feels somewhat inclined to help the plaintiff and this may explain the result in these two decisions though it seems to me that the decisions may be put on another ground. To call a suit for maintenance a suit for land because an item of land is sought to be charged though there is no dispute as to the title seems to me to strain the expression too far. The case might have been put on the ground that part of the cause of action arose within the limits of the original side jurisdiction because a land within such limits was sought to be charged and that being so, the suits could be filed on the original side with leave of the Court. I would agree with the conclusion in these two cases on this ground but not on the ground that the suits were for land. But I would not further utilise these cases for the purpose of this present discussion. There now remain the cases dealing with suits for specific performance.
11. The earliest of these cases is the case in Ramdhone Shaw v. Nobumoney Dossee (1865) 1 Bourke's Reports, p. 218., decided in 1865. This was referred to with approval by Markby and Pontifex, JJ., in Juggodumba Dossee v. Puddomoney Dossee (1875) 15 Bens.L.R. 318, and it was mentioned in answer to a question of Garth, C.J., in The Delhi and London Bank v. Wordie I.L.R. (1876) C. 249, and it was considered to be good law by Kennedy, J., in Kellie v. Fraser I.L.R. (1877) C. 445. It was cited before Pontifex, J., in Sreenath Roy v. Cally Doss Ghose I.L.R. (1879) C. 82. There the suit was originally for specific performance of an agreement to execute a mortgage, but at the trial the plaintiff's counsel was content with a decree for money and did not ask for any order for specific performance. In spite of this, it was held that the suit did not lie. Pontifex, J., gives no reasons for not following the case in Ramdhone Shaw v. Nobumoney Dossee (1865) 1 BR 218. I am inclined to dissent from this case. The same result as in Ramdhone Shaw v. Nobumoney Dossee (1865) 1 BR 218. was arrived at in His Highness Shrimant Maharaj Yashvantrav Holkar v. Dadabhai Cursetji Askburner I.L.R. (1890) B. 353. It is true that this was dissented from in The India Spinning and Weaving Co., Ltd. v. Climax Industrial Syndicate I.L.R. (1925) B. 1 but it was approved in Hatimbhai Hassanally v. Framroz Eduljee I.L.R. (1927) B. 516 and in Hunsraj v. Runchordas (1905) 7 Bom. L.R. 319, which was also a suit for specific performance. The cases in Land Mortgage Bank v. Sludurudeen Ahmed I.L.R. (1892) C. 358 and Nagendra Nath Chowdhury v. Eraligool Co., Ltd I.L.R. (1922) C. 670 which were vendor's suits for specific performance, and in Ratanchand Dharamtchand v. Gobind Lall Dutt I.L.R. (1921) C. 882 which was a creditor's suit for specific performance of an agreement to mortgage, do not help us very much.
12. I may observe that in a suit for specific performance the decree is primarily addressed to the defendant; that is, the Court acts in per sonant--which a Court of Equity is always entitled to do. Though the land may be described in the conveyance it is not going to be touched even in the execution of the decree as in the case of a decree for sale on a mortgage, nor does any issue as to the title to the land arise in such a suit. These are strong considerations for holding that a suit for specific performance is not a suit for land.
13. In the result, I would answer the reference by holding that the suit is not a suit for land.
14. I entirely agree with the two judgments just delivered by my Lord and my brother Ramesam. The difficulty or one may say, the impossibility of a definition of a 'suit for land' has been commented on over and over again, and in my opinion no definition expressed in general words can possibly be satisfactory in the sense of covering every case which may arise. The only method is to see if the facts of any particular case fall within the meaning of the words; so the question in this case must in my view be decided with reference to the essential nature of the remedy sought. As my Lord has pointed out, it may be unsafe to apply wholesale the doctrines of the English Courts of Equity to a suit for specific performance in this country where the law on the subject has been codified, but this codification does not and cannot destroy the essential nature of this remedy, i.e., that it acts in personam and not in rent. Once this fundamental distinction is grasped, it appears to me unarguable that a suit for specific performance is a 'suit for land.' Therefore the suit in question is not a suit for land.
Venkatasubba Rao, J.
15. I agree that a suit by a purchaser of lands for specific performance of a contract to sell is not a suit for land. The reference to the Full Bench, as worded, raises another difficult question, but it is unnecessary to deal with it on account of the view we have taken that the suit in question is not a suit for land.
16. The expression 'suit for land' has given rise to conflicting views and has been, from time to time, the subject of numerous decisions. Some Judges have construed the words as meaning 'suits relating to or concerning land.' It seems to me that this construction, at any rate, is no longer open to the Indian Courts, having regard to two decisions of the Privy Council, which must be deemed to have held that administration suits are not suits for land. Benode Behari Bose v. Nistarini Dassi and Srinivasa Moorthy v. Venkata Varada Aiyangar That this is the effect of these two cases is assumed at least in three rulings, one of Bombay and two of Madras (Hatinibhai Hassdnally v. Framros Eduljea (1927) 51 Bom. 516, Krishnadoss v. Ghanshamdoss (1924) 49 M.L.J. 311 and Amir Bi v. Abdul Rahim Sahib : (1928)55MLJ266 . Now, where in a suit for administration, land is involved, it is in a sense 'a suit relating to or concerning land'; but such a suit has now been authoritatively held not to be a suit for land.
17. However reluctant one may be to define the term 'suit for land,' it is impossible to answer the reference without attempting some kind of definition. I shall not discuss the point, for it has been discussed threadbare, but I shall content myself with stating that, in my opinion, a suit is not a suit for land, unless the decision in that suit primarily involves title to, or primarily affects possession of, land. Applying this test, I am satisfied that the present suit is not a suit for land.
18. I may take occasion to point out that the conflict in regard to Clause (12) of the Letters Patent covers a very wide field. It is not confined to the expression 'suits for land.' I shall indicate briefly the points respecting which there has been this wide diversity of judicial opinion. Firstly, on the interpretation of the words 'suits for land' not only have different Courts taken different views, but a consistent view has not always been taken even by the same Court. Secondly, is the last alternative of Clause (12) beginning with the words 'or if the defendant at the time of the commencement,' a separate alternative, or, is it dependent on the earlier alternative, beginning with the words 'or in all other cases'? See Hatimbhai Hassanally v. Framroz Eduljee I.L.R. (1927) B. 516. Some learned Judges have held that the final alternative is a separate alternative. With what result? Even when it is held that a suit is a suit for land and the property is wholly outside, still the Court can entertain the suit on the ground that the defendant dwells, etc., within the local limits of its jurisdiction. Thirdly, does the clause 'in case the leave of the Court shall have been first obtained,' which has been compendiously described as the enlarging clause, apply only to the cause of action in all other suits than those for land? (See the judgment of Kemp, J., in Hatimbhai Hassanally v. Framros Eduljee I.L.R. (1927) B. 516. Fourthly, some learned Judges have gone the length of holding that even where a suit is held to be a suit for land, the Court has jurisdiction, if it can enforce its decree, by the personal obedience of the defendant resident within its local limits. This power is supposed to rest upon what is termed the equity jurisdiction of the Court.
19. I have set forth in some detail the wide divergence of opinion in regard to this clause with the object of drawing attention to the necessity of recasting the section, for, as Marten, C.J., points out in Hatimbhai Hassanally v. Framroz Eduljee I.L.R. (1927) B. 516, uncertainty on a matter of such importance as jurisdiction, is liable to lead to serious results.
20. In a suit for specific performance of a contract to sell relief is given by ordering the person who contracted to sell to do the act which he is under an obligation, a duty enforceable by law, to do: that is to say, in the case of a contract to sell land, to execute a conveyance. It the person against whom a decree for the specific performance of the contract has been made has had an opportunity of obeying the decree and has wilfully failed to do so, the decree may be enforced by his detention in the civil prison or by the attachment of his property or by both. Since, in the case proposed, the parties who contracted to sell are resident in Madras, a decree if passed might be enforced in this manner. If the decree is not obeyed, the Court may, in lieu of or in addition to these processes, direct that the act required to be done may be done by a person appointed by Court, on the charges of the judgment-debtor.
21. The judgment-debtor may have an imperfect title or no title at all. Except so far as provided by Section 18 of the Specific Relief Act, the Court goes no further. It does not investigate or adjudicate on the title conveyed. It compels the performance of an obligation: it acts as a Court of Equity on the conscience. The person contracting to sell may prove to be unwilling or unable to deliver possession. With that the Court has no concern. The purchaser having obtained his conveyance has, if he finds it necessary, to litigate, whether it be as to title or as to possession, in the local Court of competent jurisdiction, in this case a Court in the District of Chittoor, in which the land is situate. Neither title nor possession is in question in a suit for specific performance, although the decree directs that such title as is in the judgment-debtor be conveyed.
22. A suit for specific performance is a suit 'in personam': a suit for land is an action 'in rem.' They are 'toto coelo' apart: they belong to different jurisdictions which are now no doubt fused. The object of Clause (12) of the Letters Patent is to bar the ordinary original civil jurisdiction of the High Court as to actions in rent, when the land is situate outside Madras; it does not bar the jurisdiction as to suits in personam. The word 'for' which has occasioned all the difficulty is the same in each case, but a suit for specific performance is not merely in its history but in its nature distinct from a suit for land. That the present suit is concerned with the passing of title to land is a mere accident.
23. In my opinion, therefore, a suit for specific performance of a contract to sell land without the ordinary original civil jurisdiction of the High Court, when the parties are resident in Madras and amenable to the enforcement of a decree in personam, is not a suit for land and the High Court has cognizance in its ordinary original civil jurisdiction,
24. I would be guilty of repetition, if I added anything further to the judgments which have just been delivered.