1. The interesting question, which may often come up for consideration and which is involved in this applications is whether the suit for recovery of the amount due on a mortgage of property situated outside the territorial jurisdiction of this Court is a suit for land.
2. Appln. No. 1974 of 1981 is by the plaintiff for leave to institute this suit on the allegation that as the title deeds were deposited at Madras, the part of cause of action arose within the local limits of this Hon'ble Court's ordinary original jurisdiction and that notwithstanding the property being outside the local limits, the suit is riot for land. The application is laid under Cl. 12 of the Letters Patent. The said provision reads as follows: -,
12. Original jurisdiction as to suits- And we do further ordain that the said High Court of Judicature at Madras, in 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, 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, except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Causes Court at Madras, in which the debt or damage. or value of the property sued for does not exceed one hundred rupees'.
3. There is of course a direct authority of this Court in Nalum, Lakshmi Kantharn v. Krishnaswamy Mudaliar ILR 1904 Mad 157. On the following facts that plaintiffs in their plaint, prayed inter alia, that certain lands the title deeds relating to which had been deposited with them by the defendants might be sold and the proceeds applied to the payment of the debt due to plaintiffs by defendants, and that all the lands were situated outside the original jurisdiction of the High Court. Moore. J held that the suit was one for land or other immovable property withal the meaning of Art. 12 of the Letters Patent, and the Court had no Jurisdiction. This was simply followed by Bakewell, J. in the official Assignee of Madras v. T. C. Ramaswamy Iyengar : (1912)23MLJ726 , for the learned Judge bas observed at page 727 as follows:-
'A suit to get rid of an incumbrance on land appears to me a suit for land equally with a suit to enforce or obtain a charge upon land see Nalum Lakshmi Kantham v. Krishnaswami Mudahar ILR (1904) Mad 157. Sundara Bai Sahiba v. Tirumal Row Sahib ILR 1909 Mad 131, since in each case the plaintiff claims an interest in the land and asks the Court to enforce his right: in the first case he asks for the entire interest in the land and in other cases for a partial interest only, and the former is therefore more clearly a suit for the land'.
4. But I find there are substantial and sound grounds, which refrain me from accepting the principle as, lay down by the learned Judge. The foremost is in AIR 1950 FC 83 (Moolji Jaitha and Co. v. Khandvsh Spinning and Weaving Mills Co. Ltd.) Kania, C. J. has ruled 'that on a proper construction of the plaint the claim in respect of the Jalgaon lands was a claim by a principal against his agent in respect of the property acquired by the agent by the use of the principal's funds. He found that cl. 19 of the Letters Patent permits the Court to apply the equitable principles of English Law -on the original Side of the High Court in spite of Cl. 12 of the Letters Patent. As under those principles, the Court can grant relief to a litigant in respect of lands situate outside the jurisdiction of the court against & party standing in fiduciary relationship to him, the Court had jurisdiction to grant relief in respect of the Jalgaon lands. It is relevant to notice that there was no difference of opinion among the learned Judges as to the principle so propounded by Kania, C. J. of the Federal Court in this case the suit is not for recovery of possession, nor is the question of the title to the land involved even indirectly. Indeed till execution is levied there is need for the Court to deal with any question relating to the property, all that the court has to decide is the amount due on the mortgage. Further even in execution, the Court is in no way concerned with the possession of the property or the title to the property. Then applying the test formulated in the above decision of the Federal Court. I have to hold that this suit is not one for land. Secondly in : AIR1952Bom75 (Goverdhanlal Bansilal v. Ramrichpal Dalsukhrai) a Division Bench of the Bombay High Court has stated the principle thus:
'It has been held by this Court that a suit to enforce a debt, and although the property mortgaged is outside the jurisdiction, inasmuch as the deposit of title deeds was made in Bombay, this Court would have jurisdiction to entertain and try the suit. Therefore, the only question is whether although the High Court had jurisdiction to try the suit there is anything in the provisions of the City Civil Court Act which excludes the jurisdiction of the High Court'. Turning to S. 12, it provides. - 'Notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court. Therefore, it is only with regard to those suits which have been made cognizable by the City Court by reason of this Act that the jurisdiction of the High Court has been taken away; but with regard to all those suits which were cognizable by the High Court and which have not been made cognizable by the City Court, the jurisdiction of the High Court' continues, and therefore as this suit was cognizable by the High Court and is not cognizable by the City Court, the jurisdiction of the High Court has not been affected. Therefore, we must hold that this Court has jurisdiction to try the mortgage suit'. This decision reiterates the ratio lay down by the Federal Court. Lastly I find 76 C WN 807 (B. Rajgarhia v. Central Bank of India) has followed the dictum of the Federal Court. It is true that 76 CWN 807 makes no reference to (1872) 9 Beng LR 171 (in the matter of the petition of S. J. Leslia), but the later view followed by Calcutta High Court is not the one upheld in (1872) 9 Beng LR 171. It is relevant to notice that Moore, J., simplyaccepted.the ratio in (1872) 9 Beng LR 171 as correct. It is equally interesting to note that in a Full Bench decision of this Court reported in AIR 1929 Mad 721 (Velliappa Chettlar v. Saha Govinda Doss) though the Court did not decide the point, the following observation of Ramesam, J., '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 f or 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 .........' favours the view that the suit like the present is not one for land.
5. In view of the decision of the Federal Court and in view of the principle stated by Chagla, C. J. I am persuaded to dissent from ILR (1904) Mad 157.
6. In the result the application succeeds and leave is granted.
7. Application allowed.