C.C. Ghose, J.
1. This is an appeal against a decision of my learned brother Mr. Page, J., by which he dismissed the plaintiffs' suit in the circumstances hereinafter mentioned. The suit was instituted on 23rd March 1923, and the plaint as it stood, was filed against five defendants, namely, Chagan Lal, Sohan Lal, Kanya Lal, Rukmani and Mathuia Bai. Shortly stated, the plaintiffs' allegations were these : They stated that there was a dwelling house in Bhawalpore in the Punjab in which they were interested as part owners and that the said house had been sold by the defendant Chagan Lal acting for himself and as the constituted attorney of the other defendants by several conveyances in the months of March and April 1920. They further alleged that the sales were effected without the consent and knowledge of the plaintiffs or any of them and that Chagan Lal had realized a sum of Rs. 19,476. They stated also that they were entitled to one-third of the sum of Rs. 19,476, that is to say, to the sum of Rs. 6,492, In the prayer portion of the plaint, the reliefs prayed for were as follows : For leave under Clause 12, Letters Patent to institute the suit in this Court, for a decree for the said sum of Rs. 6,492; if necessary, for a declaration of the shares of the parties in the sale proceeds of the said house and premises and for a direction upon the defendants to pay to the plaintiffs their share of the said sale proceeds, and if necessary, for an account by and under the direction of this Court of the dealings of the defendants of the moneys realized by them from the said sales and for a direction upon them to pay to the plaintiffs whatever might be found to be due to them on the taking of such accounts. In their written statement the defendants Chagan Lal and Kanya Lal stated that the suit as framed was one for lands outside the jurisdiction of this Court and was not maintainable. They further denied that the plaintiffs had any title to the said house.
2. It appeared that some time in May 1926, an order was made by my learned brother Buckland, J., when he was sitting on the original side of this Court, to the effect that the plaintiffs' application for issue of a commission of which notice had been given should stand to trial, that at the hearing of the suit the plea as to jurisdiction taken by the defendants should be heard and decided first, that such plea would be decided on the basis of the plaint having regard to the contention of the defendant Chagan Lal and Kanya Lal chat the plaintiffs had no title to the house and premises in Bhawalpore in the Punjab and that, in the event of the plea of jurisdiction being decided in favour of the plaintiffs, the application for issue of a commission was to be brought on before the Judge hearing the case. This order, as stated above, was made on 18th May 1926. The suit came on for hearing before Page, J., on 2nd March 1927 when Sircar who appeared on behalf of the plaintiffs intimated to the Court that his clients were not willing to proceed against defendants 3, 4 and 5. Defendants 3, 4 and 5 were thereupon dismissed from the suit the necessary orders as to their costs being made at the same time. The ease thereafter proceeded as against the two remaining defendants who were residents in Calcutta, namely, Chagan Lal and Sohan Lal.
3. When the appeal came on for hearing before us this morning, Mr. Sircar on behalf of the appellants stated that, so far as defendant 2, Sohan Lal, was con-corned, the matter had been settled with him and that he was to be dismissed from the suit and the appeal and that, so far as his costs in the first Court were concerned, the order made by that Court was not to be disturbed but, so far as his costs of appeal in this Court were concerned, one counsel's fee was to be allowed. Upon this statement being made by Mr. Sircar and upon an order being made as prayed for, counsel for Sohan Lal retired. Thereupon, there was only defendant-respondent 1, left and that is Chagan Lal for whom Mr. N.N. Bose, with Mr. S.K. Dutt (Advocate) appears.
4. Now, it appears from the judgment of the learned Judge that two points were taken before him, (1) that, having, regard to the allegations in the plaint, the suit was a suit for land and that no portion of the land being situate within the jurisdiction of this Court, the suit, was not entertainable, and (2) that having regard to the decision of the Court of appeal in the case of Hadjee Ismail Hadjee Hubbub v. Hadjee Mahomed Hadjee Joosub 13 B.L.R. 91, and it appearing that all the defendants were not dwelling or carrying on business within the jurisdiction of this Court, the present suit was not maintainable.
5. Page, J., held, on an exhaustive review of the oases relating to what is a suit for land, that the present suit was not a suit for land and he thereupon negatived the first contention raised on behalf of Chagan Lal. As regards the second of the two contentions referred to above, he held, on a consideration of the facts of this case as appearing from the plaint, that this case was covered by authority, namely the case reported in Hadjee Ismail v. Hadjee Mahomed 13 B.L.R. 91, and that, inasmuch as all the defendants were not dwelling or carrying on business within the jurisdiction of the Court, the present suit could not be maintained at the instance of the plaintiffs. The learned Judge thereupon dismissed the entire suit.
6. On appeal before us it has been contended by learned Counsel for the appellants that on the facts of the present case it can be distinguished from the case reported in Hadjee Ismail v. Hadjee Mohamed 13 B.L.R. 91, in this way, namely, that-whereas in that case the account prayed for could not be taken and the case finally determined because of the fact that all the defendants were residents outside the jurisdiction of this Court and that, therefore, the suit could not possibly be maintained, in the present case the plaintiffs proceeded on the footing; that a tort had been committed, namely; that there had been a wrongful conversion of the property in which they were interested without their knowledge and assent and that, in law, the plaintiffs were entitled to proceed against one tort-feasor or against all the tort-feasors jointly. In this case one of the tort-feasors, namely, Chagan Lal i.e., the person who had sold the property for himself and acting as the attorney of some of the other parties interested in the property, was dwelling or residing within the jurisdiction of this Court, and that, therefore, the suit could properly be maintained in this Court. Mr. N.N. Bose on behalf of the respondent Chagan Lal argues that the case is covered by authority, namely, the case reported in Hartjee Ismail v. Hadjee Mahomed 13 B.L.R. 91, and further that his client does not admit that the plaintiffs had any share whatsoever in the property in Bhawalpore referred to in the plaint and that, both on law and on facts, the suit could not be maintained in this Court.
7. So far as the last point is concerned, that is dependent upon an investigation of facts and this investigation has not yet been held. But for the purposes of this appeal, we must proceed upon this footing, namely, whether, it being conceded that no part of the cause of action had arisen within the jurisdiction of this Court, the suit is maintainable in this Court because of the fact that one of the tort-feasors, namely, the defendant Chagan Lal, is residing within the jurisdiction of this Court. Now, the case has been decided on demurrer and the matters referred of in Buckland, J's. order of 18th May 1926, have not been gone into. The position, therefore, is that the case has been decided in the Court of first instance on the footing that what is stated in the plaint must be taken to be correct. Now, it is stated in the plaint that the sale of the house in Bhawalpore was an unauthorized sale so far as the plaintiffs were concerned. It is, therefore, clear that the suit is one in tort and, if it is a suit in tort, it is elementary that the suit can be maintained at the option of the plaintiffs against one tort-feasor or against the entire body of tort feasors. It is, therefore, not a case in which it was essential that all the defendants who had been originally made parties should be before the Court at the time the suit is heard ; in other words, in my view, the case is different from the case reported in 13 B.L.R. 91. The facts in that case were as follows : The plaintiff sued H, resident in Bombay but carrying on business by his agent in Calcutta and others resident in Bombay, to set aside a release of his interest in a certain property in Bombay. The plaintiff prayed also for inventory and accounts. The learned Chief Justice held that the real object of the suit was that an account might be taken of the property and the share of the plaintiff ascertained and provision made for his recovering it. The greater portion of the property was immovable property in Bombay. It was held that full and complete relief could not be given to the plaintiff in the absence of any of the defendants there and that the suit could not be maintained in the. absence of leave under Clause 12, Letters Patent, as the whole of the cause of action had not arisen in Calcutta. Therefore, so far as the present appeal is concerned, speaking for myself, I should be inclined to allow it because the question that is raised in the plaint is one whether or not there had been a conversion by Chagan Lal, who is resident in Calcutta, of the property in which the plaintiffs were interested and there is nothing in law to prevent the institution of a suit in the present circumstances against a tort-feasor who was resident within the jurisdiction of this Court.
8. Mr. Bose has, however, argued that in this case also having regard to the prayers in the plaint the question of accounts would have to be gone into. I express no opinion on the matter at the present moment but it is curious that if that was the view taken by the defendant Chagan Lal, he should not have raised the matter at the time when the other defendants were dismissed from the suit. I do not, however, wish to say anything which will preclude Mr. Bose's client from raising the questions relating to the plaintiffs' title to the property and to the other matters referred to in his written statement. They are questions which it will be open to the defendant Chagan Lal, to raise, if so advised, at a subsequent stage of the suit.
9. Tha result, therefore, is that, in my opinion, the present appeal should be allowed with costs and the case sent back to the Court of first instance for trial upon the issues arising on the pleadings. All earlier costs will follow the event.
10. A suit against several defendants all of whom are necessary for the determination of the questions which have to be decided in the suit must be distinguished from a suit against several defendants in which all the defendants are not necessary for the purpose of giving the plaintiff the relief which he prays and against anyone or more of whom it is open to the plaintiff at his option to proceed. The case of Hadjee Ismail v. Hadjee Mahomed 13 B.L.R. 91 was a case of the former description. Defendant 1 in that case was a resident of Bombay and was carrying on business by his gomastha in Calcutta. But for that, as I understand the case, there was no ground upon which the Court could possibly be asked to hold that it had jurisdiction. Prom the judgment of the learned Chief Justice, it appears that the learned Counsel for the respondent suggested that the suit should be abandoned against the parties other than defendant 1, but as the learned Chief Justice pointed out, in order to set aside the release against defendant 1, that course could not be allowed because
merely to set aside the release in a suit against defendant 1 would leave all the material questions to be decided in another suit. The real object of the suit is that an account, may be taken of the property left by the deceased and the share of the plaintiff ascertained and provision made for his receiving it.
11. The present appeal has been argued upon the footing that the suit as framed is a suit for damages for conversion in which it is open to the plaintiffs to proceed against any one or more of the joint tort-feasors as they may elect. They elected to proceed against five but eventually proceeded against two those two who reside in Calcutta. Though the suit was dismissed in the circumstances stated by my learned brother against the other defendants, nevertheless the learned Judge has held that, upon the authority cited, this Court has no jurisdiction. In my judgment, the case cited has no application in the circumstances, treating the suit as one for conversion.
12. The matter, however, has not been argued from this standpoint on behalf of the respondent. The argument on behalf of the respondent is that this is not a suit for damages for conversion as stated by the learned Counsel for the appellants but that it is a suit to which the five persons who originally were made defendants to the suit are necessary parties. If this is a correct view to take of the situation, then the point which the learned Judge ha3 decided could not arise because, on 2nd March when the suit came on for hearing and the plaintiffs by their counsel stated that they would not proceed against defendants 3, 4 and 5, it would have been open to the-learned Counsel on behalf of defendants 1 and 2 then and there to have made a. protest and pointed out that, if that course were adopted, the suit was not properly constituted and could not proceed. As I read the minutes, that point was never taken and, on behalf of the defendants 1 and 2, the course adopted on behalf of the plaintiffs was acquiesced in. Had the matter been discussed before the learned Judge, I cannot conceive that there would not have beers some reference to it in the minutes and the learned Judge must have dealt with it in his judgment because as I have endeavoured to point out, it goes to the root of the whole case and arises before any question of jurisdiction has to be decided. Mr. N.N. Bose for the respondent has assured us that the point was taken. I must, however, for the present purpose, treat the suit as though it were, as apparently the learned Judge did and as Mr. Sircar argues it is, a suit for damages for conversion and, in that view I agree that the appeal must succeed.
13. As regards the point taken on behalf of the respondent, it is not, as it appears to me, an answer to this appeal. It is a point, however, which notwithstanding the matters which I have pointed out, we have been assured was taken. In the circumstances, I agree that the defendant will be entitled to object that, on the plaint as framed, the suit is not properly constituted and that the plaintiffs cannot succeed. But, on the question of law, treating this suit as a suit for damages for conversion in which the plaintiffs have proceeded eventually exclusively against one of the tort feasors, I am of opinion that the judgment of the learned Judge cannot be sustained and the appeal must be allowed and the suit sent back for trial as my learned brother has directed.