Ameer Ali, J.
1. This is again Clause 12 of the Letters Patent, 'suit for land', and Mr. Clough in a fighting, or at any rate an ambitious mood, asks me to hold that a suit by a purchaser for specific performance of an agreement to sell land outside the jurisdiction can be brought in Calcutta. Obviously, in view of the authorities in this Court, the burden and heat of the day is upon Mr. Clough.
2. Mr. Clough attacked the defendant's position along three lines First of all, he relied upon the decisions of the other Courts, Madras and Bombay, authoritative considered decisions of the Court of Appeal of those two provinces; in particular the case in Velliappa Chettiar v. Govinda Doss AIR 1929 Mad 721 at p. 815, which was a purchaser's suit for specific performance, and therefore a decision in direct point. There is a similar decision of the Bombay Court in Hansraj v. Ranchordas (1905) 7 Bom LR 319 at p. 323, which has been referred to and accepted as good law in the more recent case, Hatimbhai Hassanally v. Framroz Eduljee Dinshaw AIR 1927 Bom 278 at pp. 553 and 554.
3. Mr. Clough's second line is a triple attack with regard to the authorities of this Court.
4. He first of all suggests that the older authorities which have been acted upon and followed without question by this Court as decisions disowning jurisdiction to entertain purchaser's or mortgagee's suits for specific performance, properly read and considered, are not authorities for the proposition. Mr. Clough contends that they had been accepted as meaning more than they really do mean, and that Judges on the Original Side have followed them without sufficient consideration; in other words that there is a kind of judicial C1.12 complex or inhibition.
5. Secondly, with regard to the Calcutta authorities he suggests that the Court of Appeal has never given its authority to the accepted view, and he referred to certain expressions in the judgment in Nagendra Nath Chowdhuri v. Ecaligool Co., Ltd. AIR 1922 Cal 443 to show that the Court, on appeal, has not accepted the more expanded construction of 'suits for land'.
6. Thirdly, Mr. Clough has pointed to certain later decisions of this Court, in particular that of Page, J. in Goculdas v. Chaganlal : AIR1927Cal768 , to show that this Court has now adopted a principle or method of construction of this embarrassing clause based on English law. Ha has also referred to a judgment of my own in Vedabala Davi v. Official Trustee of Bengal (1935) 62 Cal 1062. If this view is accepted, Mr. Clough contends that a purchaser's suit for specific performance is not to be regarded as a suit for land: see the reasoning in Velliappa Chettiar v. Govinda Doss AIR 1929 Mad 721 at p. 815.
7. Mr. Clough's last line of attack is independent of authorities, i.e. on principle. He argues that the relief sought in a suit for specific performance is an order in personam, an order to execute an agreement. It therefore does not either at all or at any rate 'directly' affect the title; that is only affected when parties do what they are ordered to do, viz. execute a conveyance. He therefore contends that whatever may be the popular meaning or understanding of the word 'suit or action 'for' land', according to legal ideas, a suit for specific performance is not one 'for' land except in an indirect or remote manner.
8. Having regard to the view which I take as to my duty in this matter, I do not propose to deal with any of the cases in detail, but I will deal shortly with the three contentions or classes of contentions which I have isolated, omitting consideration of the Madras and Bombay cases. Sreenath Roy v. Cally Doss Ghose (1880) 5 Cal 82 was a suit on a contract to mortgage land. It was relied upon in Land Mortgage Bank v. Sudurudeen Ahmad (1892) 19 Cal 358 at pp. 364 and 366, which was a vendor's suit for the purchase price.
9. Mr. Clough's contention with regard to this case, the leading case in Calcutta, is that it is not a direct authority. That is quite true. The Court's view as to jurisdiction in a purchaser's suit is only to be elicited by inference. That inference however has been drawn in subsequent decided cases, both reported as in Ratanchand Dharamchand v. Gobind Lall Dutt AIR 1922 Cal 328, and unreported.
10. Mr. Clough has referred to a still older case in Ramdhone v. Nobeemoney (1865) Bourke O C 218, a case which in itself contains no discussion with regard to Clause 12. That was a suit in respect of land outside the jurisdiction, and the Court in fact exercised jurisdiction. On the other hand, as pointed out to me, the learned Judge in the later case in Bank v. Sudurudeen Ahmad (1892) 19 Cal 358 did apparently satisfy himself that this was a decision in the sense in which Mr. Clough now contends. However that is a long time ago.
11. With regard to Eraligool Company's case the Court of Appeal was impressed with the argument that the Calcutta decisions had construed the Charter too widely, and therefore it refused to commit itself to an extended meaning.
12. Lastly, there are the recent decisions of Page, J. in Goculdas v. Chaganlal, : AIR1927Cal768 and Provas Chandra Y. Ashutosh Mukherji : AIR1930Cal258 , and my own in Vedabala Davi v. Official Trustee of Bengal (1935) 62 Cal 1062. Page, J. did adopt a method of construction of this Clause differing from that which had been applied in previous decisions of this Court. As pointed out in Vedabala Davi v. Official Trustee of Bengal (1935) 62 Cal 1062, at least four methods of construing this Clause have been adopted. The methods which prior to Page, J.'s decisions had found favour with this Court were (a) attempt to construe the Clause according to its natural meaning, (b) an attempt to construe the Clause according to categories of suits. With regard to 'meaning', that started with Sir Richard Garth's decision in Delhi & London Bank v. Wordie (1876) 1 Cal 249, where the learned Judge declined to investigate origins of English law. In construing the meaning however,, the word 'substantially' slipped in, and since that time until the judgment of Page, J. the test was, is the suit 'substantially for land'? Applying this test the Calcutta Court has consistently held that a mortgagee's and purchaser's suits for specific performance fall into the category of suits 'substantially for land'.
13. Then came Page, J. In Vedabala Davi v. Official Trustee of Bengal (1935) 62 Cal 1062 he introduced the method of construction by reference to English law as to jurisdiction. Adopting that criterion he formulated the rule that those suits were suits for land in which, on the issues raised, a question of title was 'directly' involved.
14. Mr. Clough has pointed out that the decision in Vedabala Davi v. Official Trustee of Bengal (1935) 62 Cal 1062 is only of significance on the basis that the Court accepted' Page, J.'s method of construction. In point of fact I had not the intention of laying down a general proposition that method was only one to be adopted' or accepted in this Court. My object in that case was to show, as I thought, that even accepting the test which Page, J. saw fit to adopt, it did not, in my opinion, exclude the trial on originating summons of questions of construction of deeds or wills even though the decision might ultimately affect the question of title of land. On the other hand Page, J 's method of construction has been adopted by the other Courts in India, and to myself it does appear the most logical.
15. Lastly with regard to principle. The precise relief sought in suits for specific performance is an order on the parties to execute a contract. That order is an order not immediately affecting land. It will affect it in due course because the seller will be forced to convey by execution, against his person or his property.
16. There is another way-and this point was not discussed at the Bar. In England, certainly, the Court is empowered to make an order vesting the property in the purchaser. Whether that power exists in India I have not considered. So that ultimately and by no very circuitous process the Court does procure the land for the plaintiff. There is to my mind little doubt that the man in the street would regard a purchaser's suit for specific performance as a suit 'for' land. It is to get land, and the precise legal machinery by which the result is effected is of little interest to him. There is nothing incidental about the getting of the land. That is the main and real object of the suit, and that is done.
17. The question is whether the popular construction of the Clause should be accepted. It is certainly not the English law as to jurisdiction. English Courts enforce specific performance in personam, irrespective of the situation of land, and therefore if the English law is really the test of the scope and effect of C1. 12, then a suit for specific performance by either party is not to be regarded aa a suit for land.
Speaking for myself, having regard to the judgments of Page, J. in Goculdas v. Chaganlal, : AIR1927Cal768 and Provas Chandra Y. Ashutosh Mukherji : AIR1930Cal258 and to the decision in Velliappa Chettiar v. Govinda Doss AIR 1929 Mad 721, I should probably have held English law to be the key to the construction of this 01. 12, and this suit therefore not a suit for land. But having regard to the decisions of this Court, and to the manner in which they have long been understood, I do not think it would be right for me, sitting on the Original Side, to do so. Such a decision would moreover be contrary in principle to the decisions on the Appellate Side, because there are decisions, e.g. those relating to mortgage suits, which show that this Court on appeal has not been prepared to limit the meaning to that which would follow from the test in question.
18. I hold therefore on the preliminary point of jurisdiction that this suit, being by a purchaser for specific performance of an agreement to sell land outside the jurisdiction of this Court, fails for want of jurisdiction having regard to the terms of C1. 12, Letters Patent.
19. I have taken no note of the first prayer in which the relief asked for is an investigation of the defendant's title. No argument has been based upon that, and I therefore disregard it.
20. In this particular case I considered that this issue of jurisdiction was one which should be tried before the main hearing of the suit. The suit therefore with regard to the issue relating to specific performance fails subject to any appeal that may be filed.