P. Chatterjee, J.
1. This is a second appeal on behalf of the defendant No. 3. The plaintiff instituted a suit for specific performance of the contract. The contract is because of the unfortunate incidence of partition of Bengal. Defendants 1 and 2, Respondents 2 and 3 had properties in Indian Union and the plaintiff had properties in Pakistan. There was some arrangement between the parties by which the plaintiff, who had his properties in Pakistan, but migrated to West Bengal, would leave those properties to the defendants 2 and 3, who are Mohammedans, but have properties in Indian Union, and agreed to transfer those properties to the plaintiff. The defendants 2 and 3 have never entered appearance. It also appears that the defendants 2 and 3 later on made another similar arrangement but Oral with defendant No. 1, the appellant. The result is that defendants 2 and 3 made arrangement both with the plaintiff and with the defendant No. 1 and are probably enjoying the properties of both in exchange of their properties in Indian Union. The defendants had properties in Nadia and the question is now whether the plaintiff or the defendant No. 1 is entitled to it.
2. The question that was agitated in the Courts below was whether the written agreement, which the plaintiff has proved, is a genuine document or not and both the Courts have held that it is a genuine document.
3. Mr. Syamacharan Mitter on behalf of the defendant No. 3 attacks the judgment not on that ground, because this is a question of fact, which cannot be challenged here. What Mr. Mitter says Is that the transaction was in the nature of exchange and not sale. The consideration is transfer of Indian properties for Pakistan properties. The Court has no jurisdiction over the Pakistan properties. Therefore, no deed of exchange can be executed.
4. In that view, we have to consider and construe the agreement between the parties.
5. The agreement is in the following words : The two Mohammedan-defendants say to the plaintiff by the document that
'we have taken all your Pakistan properties for a sum of Rs. 400/- and we have in part performance of our agreement of sale delivered possession to you of our properties in Indian Union for a sum of Rs. 400. No document can be executed. A document will be executed whenever possible and with regard to that, a Kabala (sale) will be executed for consideration of a sum of Rs. 400. You will also execute a Kabala with respect to your Pakistan properties. Nobody will get any money from other. They will adjust themselves.'
The agreement, therefore, really speaks of not one deed of exchange, but two deeds of sale--one with reference to the Nadia properties and the other with reference to Pakistan properties, which wero also in District Nadia as it was before partition. The possession was delivered in terms of agreement of sale. In my opinion, this is an agreement for execution of two documents of sale each to be executed by one in favour of the other. The Courts in India have nothing to do with regard to the properties in Pakistan. The value is fixed by the parties at Rs. 400. All that is contemplated is that the defendants 2 and 3 need not pay that money nor the plaintiff need pay any money. There is no dispute that the defendants 2 and 3 have got the properties of the plaintiff. In that view of the matter, there is no failure of consideration. The question then is whether the Indian Courts have judisdiction to entertain a suit for specific performance against foreigners who never resided in Indian Union at any time after the suit was instituted.
6. This suit for an enforcement of a right by a contract against a person is in substance an action in personam i.e. an 'action brought to establish a claim against some particular persons' (Cheshire). Section 54 of the Transfer of Property Act says that an agreement to transfer does not create any right or interest in land. It is indeed true that there are some conflict of decisions in our High Courts whether a suit for specific performance of a contract can be instituted at a place where the property is situated.
7. These cases deal with the interpretation of Section 16 of the Code of Civil Procedure and distinction has been made between the cases of suits by vendors and vendees. But in considering the question of jurisdiction of Indian Courts we have to classify the nature of the action for the purpose of determining jurisdiction. I have no doubt for that purpose. It is an action in personam in view of the specific provision of Section 54 of the Transfer of Property Act. Hence this is an action in personam against a foreigner who never resided in India at any time when the suit was instituted.
8. Now reference may be made to Rule 26 of Dicey's Conflict of Laws. That Rule says :
'When the defendant in an action in personam is at the time of service of writ not in England the Court has (subject to the exceptions hereinafter made) no jurisdiction to entertain the action'.
9. The exceptions to Rule 26 are as follows :
'Exception 1: The Court may assume jurisdiction to entertain an action against a defendant, who is not in England, whenever the whole subject matter of the action is land situate in England .....
Exception 2 : The Court may assume jurisdiction whenever any ..... contract ..... or liability affecting the land situate in England is sought to be ..... enforced in the action .....'
so that according to Dicey such a suit may be instituted in England even if the defendant is outside the jurisdiction. We have now to examine our statute as to how far such a process is allowable according to our statute in India. I would refer to Section 16 of the Code of Civil Procedure. The proviso provides that a 'suit to obtain relief respecting immovable property held by or on behalf of the defendant may where the relief sought can be entirely obtained through his personal obedience be instituted within the legal limits of whose jurisdiction the property is situated .....'.
I would also refer to Section 20, Sub-clause (c)
'subject to the limitation aforesaid, every suit shall be instituted in a Court within the legal limits of whose jurisdiction ..... (c) the cause of actionwholly or partly arises.'
Taking these two together, the cause of action arose within the jurisdiction of the trial Court as the agreement was arrived at there. The relief can be entirely obtained through personal obedience. The relief is in respect of the immovable property and finally the property is situated within the jurisdiction of the Courts, Hence, our Courts have jurisdiction even though the defendant is a foreigner, who did not reside in India at any relevant time. The proviso to Section 16 is practically in the same language as exceptions 1 and 2 of Rule 26 in Dicey's Conflict of Laws, Hence, I find that our own statute supports the principle of inter-national law as exposed by Dicey. The reason for this is that principle of effectiveness. The principle of effectiveness is the principle that a Judge is not competent to pronounce the judgment if he cannot enforce it within his own territory. As the property is within Indian jurisdiction, the Indian Courts have power to enforce it. Therefore, it satisfies the foundation of the principle of effectiveness. Holmes, J. in McDonald v. Mabee (1917) 37 S Ct 343 stated that the foundation of jurisdiction is physical power. Here, we have that physical power to enforce the judgment because the property is here i. e. within Indian jurisdiction. In that view of the matter, I must hold that the Indian Courts have jurisdiction to pass a decree for specific performance of a contract with respect to land situated in India even though the vendor is a party residing in Pakistan and a foreigner who never submitted to the jurisdiction of his Court; but on whom writ of this Court has been served. The same view has been accepted in Muhammad Eusoof v. Subramanian Chettiar, : AIR1950Mad272 . It was held there that when the non-resident foreigner owns property within the jurisdiction of an Indian Court and enters into a contract regarding that property no matter where such contract is entered into, the Indian Court clearly has jurisdiction to try that suit by reason of the immovable properties being situate within its jurisdiction. I respectfully agree with the view aforesaid and the reasons stated above.
10. In that view, the appeal is dismissed; butI make no order as to costs.