1. The plaintiff in this suit is the grandson of one Kunjo Lall Banerjee, and the principal defendant (Sreemutty Nitambini Debi) is the widow of Kunjo Lall Banerjee. Kunjo Lall Banerjee died on the 9th April 1894, leaving considerable immoveable property, which was situated outside the jurisdiction of this Court.
2. The principal defendant, Sreemutty Nitambini Debi, applied for probate of his will and obtained a grant on July 24th, 1894, on the allegation that there was at that time moveable property within the jurisdiction of this Court.
3. On the 31st March 1898 the present suit was filed, and in this suit the plaintiff asks for an account and administration, that the will may be construed and the rights of the parties therein be declared, and that various other reliefs may be given.
4. The whole of the immoveable property being outside the jurisdiction of this Court, it was necessary for the plaintiff to allege in his plaint some facts which would show that the cause of action arose within the jurisdiction of this Court. Accordingly ho describes the defendant Sreemutty Nitambini Debi as residing at No. 109, Beniatollah Street, in the town of Calcutta, as well as at Baboogunge, Hooghly, where the immoveable property of the testator was situated. He also alleges that there was personal property of the testator's within the jurisdiction of this Court at the time that the suit was instituted, and he states that the cause of action arose from day to day in Calcutta. The written statement of Sreemutty Nitambini was filed on the 9th June 1898, and in her written statement she takes the objection that the Court has no jurisdiction to entertain the suit, and she denies the allegations of fact which have been made as to her residence and as to the presence of moveable property belonging to the testator within the limits of the jurisdiction of this Court. At the present stage of the suit, the only question gone into has been that of jurisdiction.
5. The defendant's Counsel contends that this is a suit for land, and therefore that there is no jurisdiction under Clause 12 of the Charter to entertain it, and he goes on to argue that, if it is not a suit for land, the plaintiff has failed to show that Sreemutty Nitambini Debi, the principal defendant, dwelt within the local limits of the jurisdiction of this Court on the 31st March 1898, or that any part of the cause of action has arisen within the jurisdiction. He also took objection to the frame of the suit on the ground that the suit was not maintainable in its present form, having regard to Section 42 of the Specific Relief Act.
6. Now the question which goes to the roots of the jurisdiction is, is the present suit a suit for land? It has been argued by Mr. Knight, who, though appearing for one of the defendants, is supporting the case for the plaintiff, that the true test to be applied to ascertain whether a suit is a suit for land or not is to be found in the question, can the Court give full relief in personam? He argues that in the present case the defendant as the executrix of the will is the bare trustee of the immoveable property, and her possession is really the plaintiff's possession, and that, before it can be said that this was a suit for land it would be necessary to say that there was adverse possession as against the plaintiff. I do not agree with that argument, 'because I think the true test of finding out whether a suit is a suit for land or not is to look at the plaint and see what the plaintiff is asking. If he is asking for relief which falls within the description of the words 'suits for land or other immoveable property' as interpreted by this Court, then, I think, his suit is a suit for land. On the other hand, if he is not asking for such relief, then the suit does not come within the description I have indicated.
7. Paragraph 9 of the plaint is as follows:
That the plaintiff submits that upon the true construction of the said will he is entitled to immediate and absolute possession of the said estate, both moveable and immoveable, subject to the provisions for the religious trusts and the maintenance of the defendant Sreemutty Nitambini Debi, and the payment of legacies contained in the, said will, and that in any event he is entitled to immediate and absolute possession of the said properties allotted to lain by way of maintenance as aforesaid.
8. The properties which are alleged to have been allotted to him for maintenance are described in paragraph 4 of the plaint as immoveable properties.
9. The plaint contains other allegations which it is not necessary to deal with for the purpose of deciding this question. At the end of the plaint are prayers setting forth the reliefs asked for, and the important one is the prayer (f), in which it is prayed that the said will be construed and the rights of all parties ascertained and declared.
10. Now the right which the plaintiff is setting up, and he is a party to this suit, is that found in paragraph 9, that is, a right for immediate possession of immoveable property. Now the meaning to be attached to the words 'suits for land or other immoveable property,' which occur in Clause 12 of the Charter, was considered by Sir Richard Garth in the case of the Delhi and London Bank v. Wordie (1876) I. L. R. 1 Calc. 249, 263., and in that case, dealing with the question of jurisdiction, he says: 'The question depends not so much upon the jurisdiction generally exercised by Courts of equity as upon whether this suit is brought substantially for 'land,' that is, for the purpose of acquiring title to, or control over, land within the meaning of a particular clause in the Charter.'
11. Now in this suit the plaint, after setting out the death of the testator, the relations that he left, and his will and the provisions of the will, the fact that the defendant (Sreemutty Nitambini Debi) obtained probate and took possession of the estate, charges the defendant with acts of non-feasance and misfeasance, and then goes on in paragraph 9 of the plaint to set out what the plaintiff's contention is.
12. In the case of Kellie v. Fraser (1877) I. L. R. 2 Calc. 445, 463. the same learned Judge, in describing suits that fall within the description of 'suits for land or other immoveable property' within Clause 12 of the Charter, says: 'It will be observed, however, that in all or almost all the cases upon which the appellant relies, the suit was brought for the purpose of acquiring the possession of, or establishing a title to, or an Interest in, the property which was the subject of dispute.'
13. The question is, having regard to the reliefs asked for in this Court, does it come within the description which I have just read? I confess, I think it does. It appears to me, where the plaintiff says under a will I am entitled to immediate possession of immoveable property, construe that will and declare my rights, it is impossible to say that he is not seeking to establish a title to, or a right in, the immoveable property, and, if that is so, his suit falls within the terms of Clause 12 of the Charter, and there is no jurisdiction to entertain it, if the immoveable property is outside the jurisdiction of this Court.
14. The jurisdiction of this Court, it must be borne in mind, is limited by the express terms of the Charter.
15. The question, therefore, has to be decided by reference to the words of the Charter and not by a consideration of the jurisdiction exercised by Courts of Equity in England. Inasmuch as in my opinion this Court has no power by Clause 12 of the Charter to entertain this suit, it becomes unnecessary to discuss the other questions which have been argued.
16. I agree with the construction put upon Clause 12 by Mr. Justice Shephard in the case of Seshagiri Rau v. Rama Rau (1896) I. L. R. 19 Mad. 448., viz., that the words 'in all other cases' in Clause 12 of the Charter exclude suits for immoveable property, and therefore that this is a suit for immoveable property, and the question as to whether the defendant dwelt at the' time the suit was brought, or whether any cause of action arose, within the jurisdiction, in respect of which personal relief might have been given, becomes irrelevant. In my view, it appears from the plaint that the declaration of the plaintiff's right of possession of immoveable property is asked for: the suit is a suit for land, and it does not become less a suit for land or immoveable property within the words of the Charter because there is also asked, as ancillary to the declaration asked by the plaintiff, that the will under which he claims should be construed, and that the estate should be administered by the Court, and that an account should be rendered by the executrix.
17. I express therefore no opinion on the question as to the residence of the principal defendant.
18. Upon the question raised under Section 42 of the Specific Relief Act, because of the view I take, it is unnecessary to say anything.
19. The result therefore will be that this suit will be dismissed With costs.