1. The plaintiff brought this suit for specific performance to convey in accordance with the terms of a draft, filed with the plaint, executed to her by defendant 1 as trustee of defendant 2 and the members of his family. The property to be conveyed was a mortgage decree in O.S. No. 33 of 1218 on the file of the Court of the Subordinate Judge of Chittoor, which was passed on an assignment executed in favour of defendant 2 by one Rani Lakshmikantamma of certain arrears of maintenance due to her. The draft also agreed to transfer a charge on a village called Bharanisankarapuram as an indemnity. There was an alternative prayer that, if specific performance was not decreed, the purchase money, viz. Rs. 32,000, may be refunded and for a charge on the decree debt and on certain properties in that connexion. A preliminary issue as to want of jurisdiction was raised by defendant 2 and it was found in his favour by the learned Subordinate Judge. An appeal has been preferred to this Court and defendant 2 has not appeared to contest it.
2. It is not disputed with regard to the prayer for specific performance of-the contract that the mortgage decree per se is not immovable property. Defendant 2, against whom specific performance is sought, admittedly does not reside within the jurisdiction of the Court though the mortgage-decree property is within its jurisdiction. But it is argued that the relief asked for in respect of enforcing the sale of the mortgage of Bharanisankarapuram renders the suit one for land under Section 16. It has been held in the Full Bench decision in Velliappa Chettiar v. Govinda Dass AIR 1929 Mad 721 that a suits brought by the vendee to enforce a contract for the sale of land is not a suit for land under Clause 12 of the Letters Patent and the observations in Nalam Lakshmikantam v. Krishnaswamy Mudaliar (1904) 27 Mad 157, quoted by the learned Sub-Judge show that all suits mentioned in Clauses (a), (b), (c), (d), (e) and (f) in Section 16, Civil P.C., fall under 'suits for land or other immovable property' mentioned in Clause 12 of the Letters Patent. But it is argued that the proviso to Section 16 which speaks of a 'suit to obtain relief respecting immovable property held by or on behalf of the defendant' will cover the present case.
3. It has been decided in several cases that a suit by the vendor to enforce specific performance of a contract to purchase land is a suit for land within the meaning of Section 16. The proviso appears to me to extend the section to a suit by the vendee for the relief is stated to be one relating to immovable property held by the defendant as in the present case. The condition laid down in the proviso that the relief can be entirely obtained by his personal obedience is satisfied in this case. The Full Bench decision does not really touch this matter. The prayer for specific performance of sale of this charge, i.e. prayer (a) of the plaint, would therefore, I consider give the Court jurisdiction. As regards the alternative prayer (d) for refund of the purchase money the learned Subordinate Judge has met this by saying:
I am of opinion that there is no prayer in the plaint for sale of any charge which defendant 2 may have independently of the charges created in his favour under the decree in O.S. No. 33 of 1918 for realisation of the amount due to her.
4. This is because the alternative prayer for refund runs as follows:
That it be declared that in case the plaintiff is decreed a refund of the said sum of Rs. 32,000 and interest thereon she is entitled to a charge on the said decree debt which is the subject-matter of the suit and the charge in respect thereof on the properties described in the schedule thereunder.
5. So the learned Subordinate Judge says that the only charge which the plaintiff asks for is the charge on the decree debt. This is correct on the wording, but I feel no doubt the word 'thereunder' is simply a slip for 'hereunder.' In para. 5 of the plaint the plaintiff says, in describing the agreement, that defendant 2 agreed to sell to her not only the decree in O.S. No. 33 of 1918 but the benefit of the charge created over certain items of immovable properties 'described in the Sch. A 'hereunder' written for a consideration of Rs. 32,000.' Sch. A at the end of the plaint is Bhavanisankarapuram village which was not charged under the decree in O.S. No. 33 of 1918 but was a charge conveyed to her as an addition under the sale contract. It is clear the word 'thereunder' in para 19 (d) is purely a verbal slip, and as this appeal is not being opposed I have given permission to alter the word 'thereunder' to ''hereunder' in para 19 (d). With this alternative I think it is clear that the Court has jurisdiction under the alternative relief (d) also, for this charge is immovable property situate within the jurisdiction of the Court; vide Maturi Subbayya v. Krishnayya (1905) 28 Mad 227 which has not been overruled. I do not agree with the view of the learned Sub-Judge that even if we understand that this charge is asked to be made part of the charge for securing the refund of the purchase money the suit will not lie under Section 16. I am of opinion that under the first relief as it stands and under the second as amended the suit will lie in the Sub-Court. The appeal will be allowed but without costs as it is not opposed. Plaintiff will be permitted to withdraw the plaint from the District Court, Kistna, and represent it in Chittoor Sub-Court Time six weeks.