Amberson Marten, C J

[1] The first and principal question of the five questions submitted to this Full Bench is : "Whether a suit brought by a mortgagee of land to enforce his mortgage by sale is a suit for land within the meaning of Clause 12 of the Letters Patent." It will be noticed that the question has been deliberately confined to enforcing a mortgage by sale. That is the relief asked for in the present suit, and that is the relief ordinarily asked for on the Original Side. Indeed it was even said during the hearing that many Judges in this Court have refused to grant foreclosure at all. And personally I do not remember any case in which I was asked to pass a foreclosure decree, although I must have had hundreds of mortgage suits before me at various times during the last ten years.

[2] Clause 12 of the Letters Patent runs as follows :-

And we do further ordain that the, said High Court of Judicature at Bombay, in the 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 immoveable 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 Cause Court at Bombay, in which the debt, or damage, or value of property sued for does not exceed one hundred rupees.

[3] It will be seen that Clause 12 divides suits into at least two branches, viz., (a) suits for land within the jurisdiction, and (b) all other suits where the cause of action arises wholly or partially within the jurisdiction, provided in the latter case the leave of the Court is obtained, or the defendant dwells or works for gain within the jurisdiction. For the present I omit from consideration the possibility of construing Clause 12 as containing two other branches, viz., (c) where part of the land is within the jurisdiction and the leave of the Court is obtained, and (d) where all the land is outside the jurisdiction or the whole cause of action arises outside the jurisdiction, but yet the defendant dwells or works within the jurisdiction. Confining then Clause 12 to the first two branches (a) and (6), then if the present suit is one for land, it cannot be brought in this Court, as though the defendant dwells within the jurisdiction, the whole of the mortgaged land is situate without the jurisdiction. If, however, the present suit is not a suit for land, then it can be brought in this Court with leave, for undoubtedly a part of the cause of action arose within the jurisdiction inasmuch as the mortgage in question was effected by a deposit of deeds made within the jurisdiction.

[4] In this connection Section 59 of the Transfer of Property Act provides that:-

Nothing in this section shall be deemed to render invalid mortgages made in the towns of Calcutta, Madras, Bombay, ... by delivery to a creditor or his agent of documents of title to immoveable property, with intent to create a security thereon.

It will be noticed that Section 59 does not confine the mortgaged property to property within Bombay. And it is not disputed that in Bombay a valid mortgage is created by the deposit there of title deeds relating to land outside Bombay. (See Laxman Ganesh v. Mathurabai (1913) I.L.R. 38 Bom. 369, 376, s.c. 16 Bom. L.R. 2

6. Accordingly, leave under Clause 12 of the Letters Patent was granted by the Court in the present case on the assumption that the case fell within the second branch (V) of Clause 12 of the Letters Patent and not the first branch (a).

[5] There is no other clause in the Letters Patent in which the precise words "suits for land or other immoveable property" are used, but Clause 14 refers to "causes of action not being for land or other immoveable property." That clause runs as follows :-

And we do further ordain that where plaintiff has several causes of action against defendant, such causes of action not being for land or other immoveable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as to the said High Court shall seem fit.

[6] Consequently, if a cause of action is for land or other immoveable property, then the joinder of the several causes of action otherwise permitted by that clause cannot be justified thereunder. Further, Sections 16 or 17 of the present Civil Procedure Code cannot be relied on, for those provisions do not apply to this High Court in the exercise of its original civil jurisdiction. (See Section 120). And though Order II, Rule 4, prohibits the joinder of any cause of action "with a suit for the recovery of land with certain exceptions, yet it expressly provides (as does Rules of the Supreme Court, Order XVIII, Rule 2) that nothing in this rule is to be deemed to prevent any party to a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.

[7] The main questions, therefore, before us are (1) what is the true nature of a suit to enforce a mortgage by sale and (2) what is the true construction of the words "suits for land" On the first point there are at least two opposite views. The one view is that a mortgage consists of two elements, the debt and the security, but that in the eyes of the law the paramount element is the debt, and that on this consideration the whole basis of the law of mortgages is based whether in India or in England. Consequently, a suit to enforce a mortgage by sale is one primarily to obtain the payment of a mortgage debt either directly from the mortgagor, or indirectly from the proceeds of sale of the mortgaged property, leaving only the surplus proceeds, if any, for the mortgagor. The opposite view is that the main object of a mortgage suit is to get at the land, whether the actual remedy adopted be by foreclosure or by sale : that the very fact that a suit is brought means generally that a mortgagor has refused or is unwilling to pay, and that accordingly it is the security itself which is to be realised by the process of the Court. If the relief asked for is for foreclosure, then the result of the foreclosure decree is to transfer the whole of the interest in the property to the mortgagee. If, on the other hand, the remedy adopted is that of sale, then by means of the Court s action the property is transferred, and though it be to a third party, yet nevertheless it is the land which has been operated on by means of the process of the Court.

[8] As regards the second point, there are also at least two opposite views. One is that these words mean suits for the recovery or delivery of land. The other view is that the words are wider and should be construed as meaning "suits relating to or concerning land." Midway between these two extreme views comes a third view, viz., that the expression means "substantially suits for lands, or suits whose primary object is the acquisition of land or some interest therein."

[9] This is an outline of some of the main arguments presented to us. But the discussion has covered an extremely wide field ranging in fact over the history and procedure in connection with the law of mortgages both in England and in India for over one hundred years. So, although it may be urged that the real question for our decision lies in a nutshell, viz., what is a mortgage suit and what is a, suit for land, yet what was said by Lord Macnaghten with reference to the rule in Shelley s case in his famous judgment in Van Grutten v. Foxwell [1897] A.C. 658 seems apposite in the present case, viz. (p. 671) :-

But it is the one thing to put a case like shelley s in a nutshell and another thing to keep it there. In spite of the simplicity of the view which commended itself to Mr. Hargrave and Lord Thurlow, and which, indeed, was never at any time wholly obscured, there grew up a mass of decisions so numerous and so perplexing that, in Lord Eldon s opinion the mind is overpowered by their multitude and the subtlety of the distinctions between them.

[10] On the present hearing about one hundred authorities were cited to us. But in a case of this extreme importance, I in nowise grudge the time involved. On the contrary the Court is much indebted to the Advocate General for the mortgagee, and to Mr. Mulla and Mr. Setalvad for the mortgagor, for their clear and able arguments, and their industry in bringing to our attention all material considerations.

[11] Taking then the first point, I think this is a case where we must go back to first principles. It is clear that a mortgage consists of a debt and a security, and further that a suit to enforce that security necessarily relates to both the debt and the security. It is also clear that, by English law, of these two elements, the debt is regarded as the primary, and the security as the secondary element. All that the mortgagee is absolutely entitled to is his money. If he gets his money, he must restore the security, for his interest in the security is always subject to redemption. On those principles are based the leading doctrine "Once a mortgage always a mortgage", and the prohibition against clogging the equity of redemption. (See Samuel v. Jarrah Timber and Wood Paving Corporation [1904] A.C. 323, 326-7.)

[12] Over one hundred and twenty years ago Lord Eldon in Seton v. Slade: Hunter v. Seton (1802) 7 Ves. Jun. 264 has thus stated the law, viz. (p. 272) :-

To say, time is regarded in this Court, as at law, is quite impossible. The case

mentioned of a mortgage is very strong : an express contract under hand and seal. At law the mortgagee is under no obligation to reconvey at that particular day; and yet this Court says, that, though the money ia not paid at the time stipulated, if paid with interest at the time a re-conveyance is demanded, there shall be a re-conveyance; upon this ground; that the contract is in this Court considered a mere loan of money, secured by a pledge of the estate. But that is a doctrine, upon which this Court acts against what is the prima facie import of the terms of the agreement itself; which does not import at law, that, once a mortgage, always a mortgage; but Equity says that; and the doctrine of this Court as to redemption does give countenance to that strong declaration of Lord Thurlow, that the agreement of the parties will not alter it; for I take it to be so in the case of a mortgage; that you shall not by special terms alter what this Court says are the special terms of that contract.

[13] So, too, in 1816 in Quarrell v. Beckford (1816) 1 Madd. 269 Sir Thomas Plumer stated at p. 278 :-

What is a Mortgage Every body knows, it consists of two things; it is a personal Contract for a Debt, secured by an Estate, and, in Equity, the Estate is no more than a Pledge or Security for the Debt; the Debt is the Principal-the Estate is the Accident. Whether the Mortgagee is, or is not, in Possession of the Pledge, his right is precisely the same, with this difference, indeed, that he has never any right, in Equity, to the Estate, except as a Fund to pay him his Debt; for every other purpose, the Estate is the Estate of the Mortgagor, and when the Debt is paid, all the Mortgagee s right and interest in the Estate ceases; he has then the legal Estate only, and not a beneficial Interest in it ... All the Cases treat the Mortgagee, as soon as he is paid, as becoming a mere naked Trustee, holding the legal Estate for the benefit of the Cestui que Trust, the Mortgagor.

[14] I next turn to a modern text book, Halsbury s Laws of England, Vol. XXI, p. 70, where the law, in my opinion, is concisely and accurately stated :-

A mortgage consists of two things. It is a personal contract for a debt and an estate pledged as a security for the debt. Every mortgage implies a debt and a personal obligation by the mortgagor to pay it ... Incident to every mortgage is the right of the debtor to redeem, a right which is called his equity of redemption, and which continues notwithstanding that the mortgagor fails to pay the debt in accordance with the proviso for redemption. This right arises from the transaction being considered as a mere loan, of money secured by a pledge of the estate.

Then the note (g) says :-

At common law, unless the mortgagor strictly complied as to time and place with the condition of payment, he forfeited his estate, which became the absolute property of the mortgagee. From early times, however, the courts of equity held that until foreclosure by order of the court the mortgagor, by applying within a reasonable time and offering to pay principal and interest and all proper costs, might redeem the estate forfeited at law (Emanuel College (Master etc.) v. Evans (1625) 1 Rep. Ch. 10 (19).) As the right was only enforceable in the courts of equity^it was called the equity of redemption.

[15] As regards Indian law, if we turn to the Indian Trustees Act, 1866, and the Trustees and Mortgagees Powers Act, 1866, we find the Indian Legislature applying many of the remedial provisions of the Trustee Act, 1850, (13 & 14 Vic. c. 60), the Trustee Act, 1852, (15 & 16 Vic. c. 55), and Lord Cranworth s Act (23 & 24 Vic. c. 145) to Indian mortgages and trusts. The preamble to the former Indian Act states that it is expedient to consolidate and amend the laws relating to the conveyance and transfer of moveable and immoveable property in British India vested in mortgagees and trustees in cases "to which English law is applicable." And the interpretation Clause 2 provides that :-

Mortgage shall be applicable to every estate or interest in immoveable or moveable property which would in the High Court be deemed merely a security for money.

This definition is taken direct from Section 2 of the Trustee Act 1850, except that "the High Court" is substituted for "a Court of Equity." Clause 3 provides that :-

The powers and authorities given by this Act to the High Court shall and maybe exercised only in cases to which English law is applicable, and may be exercised with respect to property within the local limits of the extraordinary original civil jurisdiction....

The Act then confers various powers on the High Court, including vesting orders in lieu of a conveyance in the case of a trustee (Section 18) or of a Court sale of land (Section 32).

[16] It will be noted that Section 3 expressly refers to "extraordinary" original civil jurisdiction. That is a jurisdiction given by Clause 13 of the Letters Patent, and is far wider than the ordinary original civil jurisdiction given by Sections 11 and 12 of the Letters Patent. Clause 13 gives the High Court in effect jurisdiction over the whole of the Presidency, viz., "power to remove and to try and determine as a Court of extraordinary original jurisdiction any suit being or falling within the jurisdiction of any Court whether within or without the Presidency of Bombay subject to its superintendence."

[17] The other Act, viz., the Trustees and Mortgagees Powers Act, 1866, is confined by Section 45 to property within British India, and to cases to which English law is applicable. It contains a somewhat similar preamble, and the definition of "mortgage" includes "every instrument by virtue whereof immoveable property is in any manner conveyed, pledged or charged as security for the repayment of money or money s worth lent, and to be reconveyed or released on satisfaction of the debt." This latter definition is taken from Section 25 of Lord St. Leonard s Act (22 & 23 Vic. c. 35).

[18] It was held by Mr. Justice West in In re Kahandas Narrandas (1881) I.L.R. 5 Bom. 154 that under the former Act the High Court has power to appoint new trustees of a Hindu charitable trust. And this decision was followed by myself in Lang v. Moolji and Bhagwan . The view taken by the Bench in each case was that English law was "applicable" although the parties were Hindus : and that consequently a Hindu trust could enjoy the benefits of that Act. Mr. Justice West s instructive judgment should be read in its entirety, but I may quote one passage at p. 173, viz. :-

I think that the English law was applicable in 1866 to all cases in which peculiarly equitable doctrines had obtained recognition in the relations between the native inhabitants of Bombay. Those doctrines could not, consistently with the statutes and the charter, be employed to subvert the native substantive laws, but they afforded a means of continually ameliorating them, and so preventing their desuetude by a system of rules borrowed from the English Courts of Equity.

[19] I, therefore, regard these two Acts, viz., the Indian Trustees Act, 1866, and the Trustees and Mortgagees Powers Act, 1866, as affording clear legislative recognition of the applicability of the English law of mortgages in certain cases whether within, or without the Presidency town of Bombay. The English law of mortgages can in no way be said "to subvert the native substantive laws" if any on the subject, On the contrary, one main object of English mortgage law is protection from usury; and the necessity for that protection is at least as great in India as in England. Many competent people would indeed say more so. And in our Presidency, the Dekkhan Agriculturists Relief Act, 1879, has extended that protection in a marked degree. Mortgage suits against an "agriculturist" must be brought in the local Court (Section 11), the real nature of the transaction may be enquired into and accounts reopened (Sections 10A, 12 and 13), payment by instalments ordered (Section 15B) and only simple interest allowed at the rate allowed by the Court (Section 13(e)).

[20] Next, if we turn to the Transfer of Property Act, 1882, which was applied to this Presidency as from January 1, 1893, although Section 58 defines a mortgage to be "the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan" etc.-a definition on which Mr. Mulla for the mortgagor strongly relied-yet the subsequent provisions in Sections 60 to 101 are in effect the English law of mortgages, including in particular the mortgagor s right of redemption (Section 60), though certain exceptions are made on a few points, such as consolidation (Section 61), tacking (Section 80), and the effect of a mortgage to secure further advances (Section 79). These sections include, however, the English rule as to marshalling securities (Section 81).

[21] As a matter of history, it would appear that in a certain class of mortgages the mofussil Courts, prior to the Indian High Courts Act, 1861, were disposed to adopt the old common law rule and to hold that if the mortgagor once failed to redeem on the date specified, then he could not recover the property. This decision was arrived at, although the Regulation 4 of 1827, Section 26, required the Company s Courts to act according to justice, equity and good conscience in the absence of a specific law and usage. After the Indian High Courts Act was enacted, the Bombay High Court held this practice to be erroneous (see Ramji Tukaram v. Chinto Sakharam (1864) 1 B.H.C.R. 199, and Shankarbhai Gulabbhai v. Kassibhai Vithalbhai (1872) 9 B.H.C.R. 69)-a, view which can hardly be supported having regard to the Privy Council decision in Thumbusawmy Moodelly v. Hossain Rowthen (1875) I.L.R. 1 Mad. 1, p.c. But the contest between the letter and the spirit of the law in this limited class of cases was finally put an end to by the Transfer of Property Act, 1882, if not before, and thenceforth it was clearly established that the mortgagee did not hold the property absolutely, but only subject to redemption. In other words the equitable principle of "once a mortgage always a mortgage" applied to all mortgages throughout this Presidency. Indeed as regards "agriculturists", as defined in the Act, the Dekkhan Agriculturists Belief Act, 1879, extended that principle in a marked degree as I have already shown. But to avoid any possible misunderstanding I should add that this Act does not apply in the present case, nor do the questions submitted to us relate to cases where the defendant establishes that he is an agriculturist.

[22] A good illustration of the primary importance of the debt as compared with the security is derived from the devolution of the mortgagee s interest on death. It is clear that under English law (prior to the new Acts) the interest of a mortgagee was regarded as an interest in moveables and not in immoveables, and that consequently it passed to his next of kin, and not to his heir-at-law. Thus in In re Loveridge : Drayton v. Loveridge [1902] 2 Ch. 859, Mr. Justice Buckley says (p. 863) :-

Regarding this matter upon principle, it seams to me that the property is for purposes of devolution to be treated as personalty. The testator at the time of his death was entitled to the mortgage debt, which was personalty, and as security for that the land was vested in him subject to redemption. The estate in the land descended to the heir; but at the moment of the testator s death the heir was, as it appears to me, only a trustee for the legal personal representative, who was entitled to the debt and to the beneficial interest in the land in respect of the debt.

[23] So, too, in Halsbury s Laws of England, Vol. XXI, at p. 184, it is stated :-

So long as the equity of redemption is not released or foreclosed or extinguished by lapse of time, the mortgagee s interest continues to be personal estate, notwithstanding that he may have entered into possession.

In this Court in Tarvadi Bholanath v. Bai Kashi (1901) I.L.R. 26 Bom. 305, s.c. 4 Bom. L.R. 18 Sir Lawrence Jenkins and Mr. Justice Chandavarkar held a mortgage debt to be moveable property within the meaning of Section 268 of the Civil Procedure Code of 1882.

[24] If, however, a decree for foreclosure absolute is made, then its effect is thus stated in Halsbury, Vol. XXI, at p. 294 :-

The effect of the order for foreclosure absolute is to transfer the equitable estate of the

mortgagor to the mortgagee, and the mortgagor has thenceforth no interest in the property. The mortgagee holds the mortgaged property as absolute owner in lieu of the mortgage money, and, if it is real estate, he holds it as such, and not as personalty.

[25] So much for the mortgagee. It is equally clear that the interest of the mortgagor, notwithstanding the creation of the mortgage, remains, as before, immoveable property, and descends as such on his death, (See Halsbury, Vol XXI, p. 146).

[26] If, then, as I hold to be the case, both in England and India the primary element in a mortgage is the debt and not the security, what is the primary element in a suit to enforce a mortgage by sale Now, here the detailed relief really asked for is (1) an account of what is due to the mortgagee for principal, interest and costs under his mortgage, and (2) an order that in default of payment of the mortgage debt by a certain date, the mortgaged property or a sufficient portion thereof may be sold by order of the Court, and that the mortgagor may be ordered to execute a conveyance of the property to the purchaser at such sale, and that the proceeds of sale may be applied first in payment of the mortgage debt, and secondly as to any balance in payment to the mortgagor. If the mortgagor pays within the time limited by the order, or as subsequently extended, then there is an end of the suit. In that case the mortgagee in no sense recovers or gets any land. On the contrary he has to reconvey any interest in the mortgaged land which he may have to the mortgagor.

[27] If, on the other hand, the mortgagor does not pay within the specified time, then equally so the mortgagee does not recover or get the land. That passes to the purchaser under a conveyance which the mortgagor is compelled by the Court s order to execute. The case is to some degree different if foreclosure is the remedy given, for in that case the ultimate result is that a mortgagee acquires the sole interest in the land, whereas previously he had only an interest subject to redemption. But that, as I have already stated, is not the precise question we have to determine here, and therefore I do not pursue it further. Similarly, the fact that a mortgagee may get leave to bid at the auction, and thus indirectly become a purchaser of the property, is to my mind immaterial in considering the present question. In that event he would acquire the land qua purchaser like any third party and not qua mortgagee. Nor does the existence of a second mortgagee (if any) make any substantial difference in this respect. He may not be personally liable to the first mortgagee, but he may yet have to execute a conveyance to a Court purchaser, unless he pays the first mortgage.

[28] It has been pointed out by my brother Fawcett that Order XXXIV, Rule 5, merely directs that the Court is to pass a decree that the mortgaged property, or a sufficient part thereof, be sold, and that Order XXI, Rule 92, provides that "the Court shall make an order confirming the sale, and thereupon the sale shall become absolute." He further states that the practice in the mofussil Courts is to be content with the order confirming the sale and not to require any conveyance. But, however that may be, the rules on the Original Side are quite clear in that respect. They set out in detail the procedure to be adopted by the Commissioner or Master in Equity for carrying out an order for sale. (See Rules 417-490). Rule 460 expressly gives the Court purchaser a right to a conveyance, which by Rule 463 has to be settled by the Commissioner if the parties disagree. Rule 465 provides for enforcing the execution of such a conveyance. The foregoing rules relating to sales by the Commissioner are expressly made applicable to sales by the Court under Order XXXIV, Rule 5; and Rule 552 gives the right to a purchaser to obtain a certificate of sale and also at his own costs, a conveyance from the mortgagor. Further, the form of ordinary conditions of sale set out at page 326 of the Rules provides in Condition 8 for the execution of a conveyance to the purchaser.

[29] It was not even suggested at the bar that these rules are ultra vires. Section 104 of the Transfer of Property Act gives express power to the High Court to frame rules for carrying out the provisions contained in Chapter IV relating to mortgages. Our Rules 541-555 are framed thereunder. Further, under Clause 37 of the Letters Patent of 1865, this Court has power to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the Court, provided that the Court shall be guided in making such rules and orders as far as possible by the provisions of the Code of Civil Procedure. But, in my .judgment, the rules in question are in no way inconsistent with Order XXXIV, Rule 5, or Order XXI, Rule 92, as has been suggested by my brother Fawcett. They are mere machinery for making effective the order of the Court. In fact they run on the same general lines as the rules prevailing under the English Chancery practice, except that unfortunately here we have no conveyancing counsel to advise on title. That arduous work in fact falls upon the Master in Equity himself. Apparently in the mofussil, the title is not investigated by a purchaser at a Court sale at all-so it is said. But there the value of the land is often trifling compared with that in the average High Court suit.

[30] It, therefore, comes to this that the relief in a mortgage suit on the Original Side is really obtained by means of the "personal obedience" of the defendant to the Court s orders, to borrow a phrase from the proviso to Section 16, Civil Procedure Code. Normally the order confirming the sale does not operate as a conveyance under the practice on the Original Side. The purchaser is clearly entitled under Rules 460 and 552 to a conveyance as well, and that conveyance is made by the mortgagor through his personal obedience to the orders of the Court. If the mortgagor be unwilling to execute the conveyance, then I take it he may be imprisoned for contempt of Court, or alternatively the Commissioner may execute it for him under Rule 465, or there may be a vesting order under Section 32 of the Indian Trustees Act, 1866, which, by the express terms of that section, is to have the same effect as a conveyance.

[31] If the purchaser is content with an order confirming the sale, that is his choice. In England he would not, for this order would merely confirm the auction and not effect a conveyance, So, too, I think that in dealing with valuable properties such as we are accustomed to in Bombay, the purchaser would normally require a conveyance. And in particular would he require this in a sale of foreign land. I have consulted the Commissioner Mr. H.H. Wadia on this point, and he informs me that "purchasers at Court sales of mortgaged property almost always require a conveyance," and he has been good enough to refer me to Condition 8 of the usual conditions at Court sales already cited.

[32] Nor I think need one be troubled by the fact that the decree may enable the purchaser to be put in possession of the land. It is in any event the purchaser who gets possession, and not the mortgagee. This, too, can be effected by an order in personam on the mortgagor. If in India there are facilities for sending the decree for execution by another Court, this does not affect the essential qualities of a mortgage suit. As I have already pointed out, Order II, Rule 4, does not prohibit possession being asked for in a mortgage suit. Nor is it essential to the validity of a mortgage suit relating to land outside the jurisdiction that every relief should be available to the plaintiff which he could claim if the land was situate within the jurisdiction. For instance, practical difficulties not unfrequently arise in debenture holders actions brought in the English Courts in relation to lands abroad, where the local laws require registration or perhaps prohibit foreigners from being on the register. In those cases the English Court does all it can do, and so would the Original Side here in an appropriate case.

[33] Accordingly, with all respect, I disagree with the contention that though the English Courts act in personam in mortgage suits, the Original Side here does not do so, but acts directly and solely upon the land itself. Modern rules may give facilities for avoiding the actual imprisonment of the defendant. The English Courts also have power to make vesting orders or to nominate a person to execute a conveyance on behalf of a disobedient defendant. (See Trustee Act, 1850, Sections 20 and 30, and Trustee Act, 1893, Sections 30 to 33). This does not mean that in mortgage suits the English Courts no longer act in personam, or cease to base their jurisdiction on that principle. So, here, Rule 465 is not exhaustive. The purchaser may still, I think, insist upon a conveyance by the mortgagor himself. And even if he does not, then the alleged operation in the mofussil of Order XXI, Rule 92, would only have much the same effect as a vesting order or as a conveyance executed by a nominee appointed by the Court.

[34] In this connection it must be borne in mind that generally speaking this High Court has succeeded to the jurisdiction conferred upon its predecessor the Supreme Court by the Supreme Court Charter, 1823 (see Section 11, Indian High Courts Act, 1861; Clause 18, Letters Patent, 1862; Clause 19, Letters Patent, 1865; and Sections 106 and 130, Government of India Act, 1915). And under Clause 36 of the Supreme Court Charter 1823 (counting the clauses from the operative part and neglecting the recitals), the Supreme Court was expressly made a Court of Equity, and given an equitable jurisdiction corresponding to that of the Court of Chancery, including in particular power to summon the parties and to "compel...obedience to the decrees and orders of the said Court of Equity." In effect, therefore, this Court and its predecessor has been administering an equitable jurisdiction in personam for over one hundred years.

[35] At the same time it must be pointed out that though under Clause 19 of the Letters Patent, 1865, the law or equity to be applied in each case coming before the High Court in the exercise of its ordinary original civil jurisdiction is the law or equity which would have been applied if the Letters Patent had not been issued, yet I take it that Clauses 11 and 12 govern the local limits of the Court s jurisdiction. In other words the Court must first acquire jurisdiction under Clauses 11 and 12 before applying the law or equity applicable under Clause

1

9. Further, it is clear that those local limits are not so extensive or at any rate are different from those stated in Clause 23 of the Supreme Court Charter, 1823.

[36] Counsel for the mortgagor approached this question differently from the line of argument suggested by my brother Fawcett. They contended, first, that the definition of mortgage in Section 58 of the Transfer of Property Act shows that in India the primary element of a mortgage is the land and not the debt, and that hence the whole law of mortgages is substantially different. Secondly, it was urged that in any event this Court does not and cannot apply the game doctrine of in personam as the English Courts of Equity do, because the English Courts only pass mortgage decrees affecting foreign land, if they can find the defendant within the jurisdiction, and that in that class of suits they do not give leave for service out of the jurisdiction. On the other hand, it was argued that under Clause 12 of the Letters Patent, if mortgage suits are not suits for land, then, provided the whole cause of action arose within the jurisdiction, it would not be necessary to obtain the leave of the Court to sue, nor need the mortgagor bo within the jurisdiction. Consequently, it was urged that the English equity jurisdiction depends on the defendant being within the jurisdiction, but the jurisdiction under Clause 12 does not necessarily do so.

[37] As regards the first point, I am satisfied that the definition in Section 58 has no such wide-reaching effect as is contended. The subsequent clauses of the Transfer of Property Act, as I have already said, enact in effect the main provisions of the English law of mortgages and indeed amongst the descriptions of mortgages, Section 58(e) relates to an "English mortgage." It would indeed be strange if an English mortgage was thus to be deprived of its main characteristic. It was also pointed out by the Advocate General that Section 8 provides that a transfer of property passes all the interest of the transferor in the property "and in the legal incidents thereof" : and that such incidents include where the property is a debt or other actionable claim "the securities therefor" (with certain exceptions). This section seems again to recognize that of the two elements, viz., the debt and the security, the debt is the primary one-a view which I have already pointed out is strongly supported by the definition of mortgage in the Indian Trustees Act, 1866, and to some degree by the corresponding definition in the Trustees and Mortgagees Powers Act 1866.

[38] As regards the second point, it is true that there are some variations between the English practice and the practice of the High Court. The English practice as to service out of the jurisdiction is regulated by what is in effect a Code, viz., Rules of the Supreme Court, Order XI, Rule 1. But the facilities thereby given for service out of the jurisdiction have from time to time been extended, and can in no way be said to be finally fixed. Mr. Setalvad cited to us a passage out of Pigott on Service out of the Jurisdiction to the effect that originally the Courts of Equity used to give leave for service out of the jurisdiction. Then if the defendant appeared, well and good; but if he did not, the suit could not proceed, as any decree could not be made effective. Assuming that to be so, that would only mean this that the Chancery Court was prepared to exercise jurisdiction relating to any land, but that in fact it did not do so unless its decrees could be made effective by a process against the person of the defendant himself. This is analogous to the practice of the Chancery Courts in other respects which, for instance, will not usually pass a decree for specific performance of a building contract, although this rule is not without exceptions. (See Kerr on Injunctions, 4th Edition, p. 359). This is because it considers that normally it cannot properly supervise the carrying out of such a decree. It may well be that under the present Rules of the Supremo Court, Order XI, Rule 1, although they have been extended from time to time, the Court either cannot or will not give leave for service out of the jurisdiction where the mortgage is one of foreign land, and the sole defendant is out of the jurisdiction. But what is thought proper in this respect as regards the English Courts as compared with the Courts of Scotland and Ireland on the one hand, and the Courts in Continental countries, such as France and Germany on the other hand, does not necessarily apply to matters in India between the City of Bombay and land twenty or thirty miles out, or on the other hand to land in other Presidencies. There is at any rate no difficutly as regards the territorial jurisdiction in British India, as there is, say, in the case of France.

[39] Accordingly, I do not propose to go into any further details on this point, interesting though they may be. I, therefore, do not deal with the various English Acts cited at the bar tracing historically the evolution of service out of the jurisdiction. I may, however, refer to Duder v. Amsterdamsch Trustees Kantoor [1902] 2 Ch. 132, where although the mortgage suit related to land outside the jurisdiction Mr. Justice Byrne gave leave for service on the defendant outside the jurisdiction, because his co-defendant was properly served within the jurisdiction. This case shows that the jurisdiction of the English Courts is not necessarily ousted by the absence abroad of a defendant in a mortgage suit. Similarly in Bawtree v. The Great North-West Central Railway Company (1898) 14 T.L.R. 448 the bonds were charged on land in Canada where the defendant company was registered, but the trustees for the bond holders were served in England, and it was held by the Court of Appeal that the Company was a necessary and proper party, and that accordingly leave should be given for service out of the jurisdiction although the plaintiffs sought to have their charge on land outside the jurisdiction enforced by foreclosure or sale.

[40] In this Court service out of the jurisdiction is regulated by Clause 12 of the Letters Patent. We have no provisions corresponding to the Supreme Court Rules, Order XI, Rule 1. But unless the whole cause of action arises in Bombay, the leave of the Court has to be obtained to a mortgage suit where both the land and the defendant are out of the jurisdiction. Accordingly, in my opinion, this leave is a safeguard intended by the framers of the Letters Patent against an unfair use of the jurisdiction in mortgage as well as in other suits.

[41] It was, however, contended that the cases might arise where the whole cause of action arose in Bombay. It was said that if the mortgage was executed in Bombay, and the money was paid and to be repaid in Bombay, then the whole cause of action would arise there, and that no leave of the Court would be necessary. I express no opinion on the question whether the fact that the suit related to land outside the jurisdiction would make a part of the cause of the action arise without the jurisdiction. But even assuming the whole cause of action arose within the jurisdiction, then there would seem no great hardship in the Court of that jurisdiction enforcing the payment of the mortgage debt in question, For instance, if a Bombay bank lent money to a Bombay merchant on the security of land whether twenty or two hundred miles out of Bombay, probably both parties would prefer the High Court to decide any subsequent mortgage suit and not to oblige the parties to travel to some country Court where they would be without the assistance of their ordinary legal advisers. But if mortgage suits are suits for land, then, unlike in England, this High Court would have no jurisdiction in such a case, although the defendant was residing within the jurisdiction and could be served there; unless Clause 12 can be construed to have a fourth branch (d) as regards residence etc., as mentioned in paragraph 3 above.

[42] In my judgement then it is erroneous to say that this High Court does not act in personam in mortgage suits. I am satisfied that it does, although in details there may be some differences now a days between English and Indian practice. But those differences I do not regard as vital, nor as changing the essential qualities of a mortgage or a mortgage suit.

[43] That brings me to the second main question, viz.: What is a suit for land within Clause 12 The words "suit" and "land" create no difficulty. It is the word "for" which causes all the difficulty. Speaking for myself, and without attempting any definition, I should have thought those words referred to suits to obtain or recover land, or alternatively to suits which substantially involved the recovery of land or its equivalent. Personally I prefer the former meaning. For instance, a suit for foreclosure, or for specific performance, or for damages is a suit to obtain or recover foreclosure, specific performance or damages. We do not speak of a suit relating to or concerning foreclosure, specific performance or damages. But for the purposes of the present case, it is not necessary to insist on the former meaning. The alternative meaning which introduces the qualification of "substantially" may yet be adopted for testing whether a mortgage suit is a suit for land within Clause 12.

[44] Accordingly, suits for damages for trespass to land may well be regarded as substantially suits for land. Thus in Sudamdih Coal Co., Ld. v. Empire Coal Co., Ld. (1915) I.L.R. 42 Cal. 942, where the defendant was alleged in effect to have trespassed across the boundary between two collieries and to have stolen the plaintiffs coal, and the defence was a denial that the land from which the coal was extracted belonged to the plaintiffs, it was held by Sir Lawrence Jenkins and Mr. Justice Woodroffe that "the substantial question" was "the right to the land", and that accordingly it was a suit for land. (See page 952). Similarly, in the well-known case of British South Africa Company v. Companhia de Mocambigue [1893] A.C. 602, it was held that the English Courts would not entertain a suit for damages for trespass to foreign land, and accordingly the House of Lords reversed the decision of a majority of the Court of Appeal to the opposite effect. Or, again, if a plaintiff asks for a declaration of title to land and an injunction, that may in substance be an action for land, although he does not formally seek a writ of possession. (See Vaghoji v. Camaji (1904) I.L.R. 29 Bom. 249, s.c. 6 Bom. L.R. 958). Sir Lawrence Jenkins there held that the leading purpose of the suit was to establish a title to possession of land, and to secure that possession from molestation, and that the claim was not based on any contract, trust or fraud, but was brought to vindicate, rights resulting from ownership and possession alleged to be with the plaintiffs. (See pp. 258-9).

[45] On the other hand, there is, in my judgment, a substantial difference between these cases and those where the main object of the suit is to obtain money. Thus, although it has been held by the Calcutta High Court that a purchaser s suit for specific performance is a suit for land, yet it has been held by Sir Lancelot Sanderson and Mr. Justice Richardson in Nagendra Nath Chowdhuri v. Eraligool Company, Ltd. (1922) I.L.R. 49 Cal. 670, that a vendor s suit for specific performance is not a suit for land. There in the course of the argument as to Clause 12, the Chief Justice observed (p. 672):-

If anything more than recovery of land was meant, why did not the Legislature say suit.,in respect of or concerning land .

And in his judgment he says at pp. 677-678 :-

It is not necessary for me to express any opinion about that case, (viz., the Colliery Case, 42 cal. 942 [LQ/CalHC/1915/40] , above cited) because, in my judgment, that case does not cover the present one, for it is clear to me that the substantial question between the parties in this case is not the right to the land. The words in Clause 12, if we give to them their natural meaning, in my judgment, cannot be said to cover this suit, which is a suit for specific performance of the agreement, which was made in Calcutta, and to recover a sum of Rs. 88,000 odd said to be due from the defendant to the plaintiffs by reason of that agreement.

And Mr. Justice Richardson added at p. 680 :-

To the best of my judgment, on the argument addressed to us, this is not a suit for land either within the natural meaning of those words or within the meaning which has been given to them in previous decisions of this Court. It has been held that a suit in the nature of a suit by a purchaser for specific performance is a suit for land ... in my opinion the suit cannot he regarded as being in substance a suit for land within that test.

[46] In this connection it must be borne in mind that in a vendor s specific performance action the decree involves the execution and delivery of a conveyance of the land to the purchaser, and incidentally a previous inquiry into the title to the land unless already admitted. It cannot, therefore, be said that the suit does not relate to or concern land, if that is the real meaning to be attributed to the words "suits for land." So, too, in the case of the present mortgage suit, although the execution of a conveyance is a necessary or at any rate a usual part of an effective sale. yet the primary object remains, as I have said, the money. For instance, money is loaned out by banks and others in Bombay on an extensive scale on the security of mortgages of various description. If those banks wish to recover their debt, probably the last thing they desire is to be burdended with the land itself.

[47] This brings me to what I consider is the crux of the case so far as the mortgagor is concerned. His counsel were constrained to argue that the expression "suits for land" meant "suits relating to or concerning land" and nothing narrower. They accordingly insisted on the extreme view I have already mentioned, and would not accept the via media of "substantially." The result must clearly be to include within the expression "suits for land" a large number of suits whose primary object is not land, but which yet undoubtedly may relate to or concern land. I refer, for instance, to administration suits and partnership suits. All specific performance actions would also be included, despite the view to the contrary taken in Nagendra Nath Chowdhuri v. Eraligool Company, Ltd. (1928) I.L.R. 49 Cal. 670 with respect to a vendor s suit for specific performance.

[48] But at any rate as regards administration suits it is not open to the Indian Courts to adopt this argument of the mortgagor. Their Lordships of the Privy Council have laid it down clearly in Benode Behary Bose v. Nistarini Dassi (1905) I.L.R. 33 Cal. 180, s.c. 7 Bom. L.R. 887, P.C. that though an administration suit may relate to land, yet its primary object is to administer the estate of the deceased and that accordingly the High Court has jurisdiction to entertain the suit although the land or a part of it may be without the jurisdiction. Thus at p. 191 Lord Davey s judgment states :-

On the question of jurisdiction their Lordships consider the decision right. The primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and the actual administration going on there. The High Court of Calcutta, in its Ordinary Jurisdiction, had a right to order administration of this estate, and, as ancillary to such an order, to set aside deeds obtained by the fraud of the executor ... In like manner, their Lordships consider the Calcutta Court entitled, for the due administration of the estate, to set aside leases of land outside the territorial limits of their jurisdiction, those leases having been made as an incident of the same fraud.

[49] But it must be borne in mind that a full administration decree in a normal case contains a contingent order for the sale of the land of the deceased. The Civil Procedure Code itself contains a common form administration decree to that effect. (See Appendix D, Form 17). The contingency there contemplated is the necessity for a sale to carry out the objects of the suit (see Clauses 10 and 11) which usually means insufficient money to pay debts and perhaps legacies charged on land. In a mortgage suit the corresponding contingency is substantially the same, for the primary object of a mortgage suit is in my judgment the payment of money and the contingency of sale depends on the non-payment of that money.

[50] If, then, the above Privy Council decision debars the counsel for the present mortgagor from applying his wide definition to administration suits, I should have thought it would follow that his definition is defective, and that it cannot be relied on either as regards mortgage, or specific performance or partnership suits.

[51] Similarly, in another Privy Council case, Srinivasa Moorthy v. Venkata Varada Aiyangar (1911) I.L.R. 34 Mad. 257, s.c. 13 Bom. L.R. 520, p.c., it was held that the Original Side had jurisdiction in a breach of trust case, although the trust property in dispute which was claimed by the executor and trustee as his own property was outside the jurisdiction. The judgment of the Board was given in that case by Lord Macnaghten, and he described the question of jurisdiction as being "too plain for argument." (See p. 267).

[52] Accordingly, after giving my best attention to the able arguments addressed to us by counsel, and to the numerous authorities that have been cited to us, on this and other points, I find myself in substantial agreement with the following passage from the judgment of Sir Basil Scott in Venkatrao Sethupathy v. Khimji Assur Virji (1916) 26 Bom. L.R. 535, where he says (p. 536):-

Speaking for myself, it appears to me difficult to understand how a suit in which the mortgagee seeks to have the land vested in him under his mortgage sold to somebody else by the agency of the Court is a suit for land. It is a suit to realise and dispose of his and his debtors interests in the land. The object of the suit is not to obtain land or to obtain a declaration of title to land or to obtain damages for interference with land, but to obtain repayment of debt owing to the plaintiff and for that purpose to realise the security which has been vested in him. I can see no move reason for treating such a suit as a suit for land than there was in Nistarini Dassi v. Nundo Lall Bose (1899) I.L.R. 26 Cal. 891, where the plaintiff sought to set aside leases granted by the defendant-executors for land outside the jurisdiction for holding it a suit in which the Court had no jurisdiction. Mr. Justice Stanley observed that the Court assumes jurisdiction in regard to immoveable properties situate outside the jurisdiction in cases where it can act in personam either to compel the owner to give effect to legal obligations into which he has entered or to a trust reposed in him. The Judicial Committee in appeal expressly upheld this ruling of the Calcutta High Court in reference to jurisdiction : Benode Behary Bose v. Nistarini Dassi (1905) I.L.R. 33 Cal. 180, s.c. 7 Bom. L.R. 887, P.C.

I should add that Venkatrao Sethupathy v. Khimji Assur Virji was a case of enforcing a mortgage by sale. The report is wrong in saying at p. 535 that the "usual foreclosure decree" was passed. This will be seen from Sir Basil s judgment at p. 536, I have called for the record, and find, as he says, that in default of payment the mortgagee was to be entitled to apply "for a decree absolute for sale."

[53] It necessarily follows that with all respect I disagree with the decision of Sir Norman Macleod, and Mr. Justice Crump and Mr. Justice Coyajee, in India Spinning & Weaving Co., Ltd. v. Climax Industrial Syndicate (1925) I.L.R. 50 Bom. 1, s.c. 27 Bom. L.R. 1281, F.B., which was also a case of enforcing a mortgage by sale. The decision of that Bench was given by Sir Norman Macleod and he deals in detail with the numerous authorities on the point. But, apart from the authorities, the reasoning on which that decision is based is not given in any detail. Indeed the Court appears to have thought the point clear, apart from the authorities. For instance, at the beginning of his judgment Sir Norman says (p. 9) :-

If the question had to be decided without reference to previous decisions of this Court, I do not think, speaking for myself, that there could be any doubt that the suit was a suit for land, but we are faced with the fact that ever since the decision in Holkar v. Dadabhai Cursetji Ashburner (1890) I.L.R. 14 Bom. 353 this Court has assumed jurisdiction to entertain suits on mortgages on land outside its jurisdiction.

[54] In this connection it would have been more accurate to have said that this jurisdiction was also exercised for some eighteen years before Holkar s case, or fifty-four years in all up to Sir Norman s judgment. For, as is pointed out by Sir Basil Scott in Venkatrao Sethupathy v. Khimji Assur Virji (p. 538) :-

That makes a consecutive period of forty-five years, during which the practice has been uniform to entertain mortgage suits in this Court relating to land outside the Presidency, and many titles have been founded upon decrees in such suits.

The decision of Sir Basil Scott was given in 191

6. Holkar s case was only decided in 1890.

[55] Then, again, at p. 26 Sir Norman says :-

I have not the slightest hesitation in holding that a suit on a mortgage, as this is, is a suit for land within the meaning of that expression in Clause 12 of the Charter. I entirely agree with the long series of Calcutta decisions to the effect, as summed up in the words of Jenkins, C.J., that regard had to be had to the substance of the suit. The Judges of the Calcutta and Madras High Courts have declined to follow the specious argument that because in certain classes of suits, though they are suits for land, a Court of Equity in England will grant relief in personam, therefore such suits cease to be suits for land so as to exclude them from the meaning of that expression in Clause 12 of the Charter. I think the difference between the two views may be expressed thus. Calcutta and Madras look to the relief actually claimed in the suit. Bombay considers the possibility of a decree being passed in personam. I do not for a moment dispute the powers of this Court to pass a decree in personam in spite of the fact that the suit relates to land outside the jurisdiction. Such a power is expressly granted to the Subordinate Courts by Section 16 of the Civil Procedure Code. If the plaintiff asks for relief against the defendant only, the Court has jurisdiction though the suit relates to property outside the jurisdiction.

The learned Judge refers to Section 16 of the Civil Procedure Code, but that section does not apply to the High Court on its Original Side, and he does not specifically state under what clause of the Letters Patent this Court is to act in granting the relief in personam in respect of land outside the jurisdiction which he concedes exists. As I read his judgment he does not rely on any question of residence under what I have called the fourth branch (d) of Clause

12. In fact in the case before him the principal defendant was outside the jurisdiction. Nor do I find that the learned Judge examines what to my mind is the essential consideration, viz., the real nature of a mortgage and the real nature of a mortgage suit. If that is done, "the substance of the suit" to adopt the learned Judge s own test seems to me to be one for money.

[56] But the examination of authorities effected in India Spinning & Weaving Co., Ltd. v. Climax Industrial Syndicate relieves me from the necessity of recapitulating them in any detail. I will only endeavour to summarise them. At first sight it sounds as if the views which I have expressed are opposed not only to the opinions of the learned Judges who decided India Spinning & Weaving Co., Ltd. v. Climax Industrial Syndicate but also to a long current of unanimous authorities in Calcutta and Madras. But on examination the true position is hardly that. It is true that from the very beginning Calcutta and Bombay have adopted different constructions of Clause 12 so far as regards mortgage suits, and that the Madras High Court has substantially adopted the Calcutta view But, curious to say, there is hardly any judgment giving detailed reasons for adopting either view of Clause

12. And the recent decision of Sir Lancelot Sanderson in Nagendra Nath Chowdhuri v. Eratigool Co. Ltd., already cited, and another decision of Sir Victor Coutts-Trotter and Mr. Justice Srinivasa Aiyangar in Krishnadoss Vithaldoss v. Ghanshamdoss & Narayanadoss seem to me to throw considerable doubt on whether the past practice of the Calcutta and Madras High Courts will be continued in the future, should the point arise for a specific decision before a Full Bench.

[57] As far as the Bombay High Court is concerned, the view taken of Clause 12 has been uniform in its result. The earliest decision was in 1872 that of Yenkoba B. Kasar v. Rambhaji valad Arjun (1872) 9 B.H.C.E. 12 where Mr. Justice Gibbs and Mr. Justice Melvill decided that a suit to enforce a mortgage by sale was not a suit for land within Section 5, Civil Procedure Code. That was an Appellate Side suit. There had previously been a decision in 1869 in another Appellate Side suit, Chintaman Narayan v. Madhavrav Venkatesh (1869) 6 B.H.C.R. (A.C.J.)29, that a suit to recover the balance of rents was not a suit for land. The former decision appears to have been accepted and adopted in practice until it was challenged in the well-known case of Holkar v. Dadabhai, where Sir Charles Sargent affirmed the jurisdiction of the Original Side of this Court to deal with mortgages of land outside Bombay. That, again, was a case of enforcing a mortgage by sale. Before us, the references by the learned Judge to the powers of the Court in porsonam and to the presumed intention of the English framers of the Letters Patent were much criticised. But the judgment is a mercifully brief one, and as I read it, the references to the powers in personam were only intended to illustrate the real nature of a mortgage and a mortgage suit. The other reference I attach little importance to. But it may be assumed that the framers of the Letters Patent were familiar or had made themselves familiar with the relevant law and procedure in India and England.

[58] This decision was followed by Chief Justice Farran in 1894 in Kessowji Damodhar v. Khimji Jairam(3), which is cited in Sorabji v. Rattonji (1898) I.L.R. 22 Bom. 701. We have seen the original judgment of Sir Charles Farran, and it is in accordance with what Mr. Justice Strachey says at p. 706, Mr. Justice Strachey himself followed Holkmr s case and extended it to foreclosure suits in Sorabji v. Rattonji, although not without some doubt. In 1904 came Sir Lawrence Jenkins decision in Vaghoji v. Camaji (1904) I.L.R. 29 Bom. 249, s.c. 6 Bom. L.R. 958, which, as I have already stated, was to the effect that a suit for a declaration of title and an injunction was a suit for land. Next, in Zulekabai v. Ebrahim Haji Vyedina (1912) I.L.R. 37 Bom. 494, s.c. 14 Bom. L.R. 846 Mr. Justice Davar held that a suit to recover title deeds was in effect a suit for land.

[59] It was not till 1924 or 1925 that the matter came to be reopened in the Bombay Courts, and this was due to the decision in Harendra Lal Roy Chowdhuri v. Hari Dasi Debi (1914) L.R. 41 I.A. 110, s.c. 16 Bom. L.R. 400 which I will refer to later. In Yeshvadabai v. Janardhan Fawcett J. held that a suit to recover maintenance charged on land was a suit for land. In Pranlal v. Goculdas Pratt J. held he was bound by Holcar s case but yet decided that he had no jurisdiction to decide a question of priority between two mortgagees. With respect I am unable to agree with either of these decisions. In Jasraj v. Akubai (1922) 26 Bom. L.R. 539 Shah J. doubted Holkar s case but followed it having regard to Venkatrao s case. In Raja Kotakal v. Malabar Timber Co. Fawcett J. held he was bound by Hollar s case, but suggested that the jurisdiction might be upheld if the proviso to Section 16, Civil Procedure Code, was read into Clause 12 of the Letters Patent. But if a mortgage suit is a suit for land, I fail to see how a proviso to a section which does not apply to the High Court and which was first enacted in 1877 can be read into a document of anterior date, viz., the Letters Patent of 1862 or 1865. However that may be, these decisions of single Judges were soon reviewed in the Full Bench case of India, Spinning & Weaving Co., Ltd. v. Climax Industrial Syndicate.

[60] As regards the Calcutta High Court, its practice appears to have originated in two decisions of Mr. Justice Macpherson in Bibee Jaun v. Meerza Mahommed Hadee (1865) 1 Ind. Jur. N.S. 40 and Sreemutty Lalmoney Dossee v. Juddoonauth Shaw (1866) 1 Ind. Jur. N.S. 319; the one being a suit for foreclosure and the other for redemption. In the first of these cases the learned Judge appears to have based his views of the true construction of Clause 12 of the Letters Patent largely on Sections 5 and 33 of the Code of 185

9. This argument was also pressed before us, and I will deal with it later. The next cases were In the matter of the petition of C.J. Leslie (1872) 9 Beng. L.R. 171 and Juggodumba Dossee v. Puddomoney Dossee (1875) 15 Beng. L.R. 318, where Sir William Markby was a member of the Bench, and Land Mortgage Bank v. Sudurudeen Ahmed (1892) I.L.R. 19 Cal. 358, 361, a decision of Mr. Justice Trevelyan, and The Delhi and London Bank v. Wordie (1876) I.L.R. 1 Cal. 249, decided by Garth C.J. and Pontifex J. In one or other of these cases it was pointed out that the Calcutta Courts had in practice adopted the views of Mr. Justice Macpherson as to a mortgage suit being a suit for land. Sir Lawrence Jenkins had occasion to consider the matter in the Colliery case I have already cited, viz., Sudamdih Coal Co., Ld. v. Empire Coal Co., Ld. (1915) I.L.R. 42 Cal. 942, where the suit was one for damages for trespass on land. In this case, as in Vaghoji v. Camaji (1904) I.L.R. 29 Bom. 249, s.c. 6 Bom. L.R. 958, his test in effect was whether the suit was primarily or in substance one for land. Accordingly, as I read his judgments, he would not have agreed to the view taken in some of the other Calcutta cases to the effect that the expression "suits for land" included suits relating to or concerning land.

[61] I may here mention a point of Calcutta practice. I have already alluded to the distinction drawn in Calcutta between a vendor s suit for specific performance and a purchaser s suit, the latter, according to their rulings, being suits for land, and the former not. On the other hand, it would appear that in order to avoid the effects of the decision of Mr. Justice Macpherson in Bibee Jaun v. Meerza Mahommed Hadee, intending mortgagors have been required to purchase a small piece of land within the jurisdiction and to mortgage it along with the valuable land outside the jurisdiction, and that then the High Court has assumed jurisdiction. This is on the assumption that what I have called the third branch (c) of the Letters Patent applies. The point whether the Bombay High Court would have jurisdiction to entertain a mortgage suit where part of the land is outside the jurisdiction and part within, does not arise in the present case for our decision. It was, however, held by Sir Norman Macleod and Mr. Justice Shah in Govindlal v. Bansilal , following Mr. Justice Candy s decision in Balaram v. Ramchandra (1898) I.L.R. 22 Bom. 922, that this Court has jurisdiction to entertain a partition suit where part of the land is within and part without the jurisdiction.

[62] A similar view appears to have been adopted in Calcutta, and even if as Mr. Justice Candy says this construction is open to doubt, yet if it has been adopted by the several High Courts over a long series of years, many titles must now be dependent on it, and accordingly a question of stare decisis would arise. This construction, however, illustrates the difficulties in which the High Courts have been involved in their endeavours to construe this particular clause. And its relevance in the present case is, I think, to diminish the weight of the contention for the mortgagor that Clause 12 did not intend the High Court to have jurisdiction over land outside Bombay. A partition suit does not depend on a contract, trust or any equity like a mortgage suit does. The Court is acting in Tern and not in personam. And yet the Court holds it has jurisdiction to partition land outside Bombay or Calcutta as the case may be.

[63] This brings me to the decision of their Lordships of the Privy Council in Harendra Lal Roy Chowdhuri v. Ham Dasi Dehi (1914) L.R. 41 I.A. 101, s.c. 16 Bom. L.R. 400. It was argued that this case was an express decision of the Board on the subject. If that was the view which I took then it would be sufficient for me merely to give judgment, saying that I respectfully followed that decision. But that is not the view I take. In that case the mortgagor purported to mortgage two lands outside the jurisdiction and a piece of land inside the jurisdiction. On the strength of the latter the registration of all the lands was effected in Calcutta. In fact the insertion of the land in Calcutta was a fraud. The mortgagor had no such land, and the whole object of its insertion was to invoke the jurisdiction first of the registration authorities, and subsequently of the Calcutta High Court. Accordingly their Lordships held that there being here a clear fraud, the registration was nugatory, for the land did not exist. Thus their Lordships say (p. 120) :-

Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact exists is a frand on the registration law and registration obtained by means thereof is valid. To hold otherwise would amount to saying that mortgages relating solely to land in other parts of the Presidency could be validly registered by the subregistrar at Calcutta if the parties merely took the precaution to add, as a last parcel, Government House, Calcutta, or any similar item. The same considerations apply to the question of jurisdiction of the High Court of Fort William in Bengal in its ordinary original jurisdiction. No such fictitious item inserted to give a colourable appearance of the deed relating to property in Calcutta when in reality such is not the case could bring the deed within the limited jurisdiction of the Court.

[64] Their Lordships decision was also founded on another consideration, and it is this which has given rise to the argument for the appellant in the present case. The judgment runs (p. 120) :-

In the first place the property, No. 25, Guru Das Street, purporting to be mortgaged, is a non-existing property, and therefore no portion of the property mortgaged is situated in Calcutta. The deed, therefore, could not be registered there, nor had the Court of ordinary original jurisdiction of Fort William in Bengal any jurisdiction to entertain the suit upon the mortgage bond, and its decree is of no validity.

It was consequently argued that this meant that if all the land was outside Calcutta, the High Court could in no event entertain a mortgage suit in relation to it. But it is to be observed that under Clause 12 it is essential that if the suit is not for land, the whole cause of action should have arisen within the jurisdiction or alternatively that leave should have been obtained in default of residence. It is not, however, shown in the report that the whole cause of action arose in Calcutta. And assuming that leave was given under the Letters Patent, that presumably would have been given on the assumption that there was land inside the jurisdiction. If in fact there was none, then the leave given would, I take it, be revoked. But, apart from that, it does not appear that their Lordships necessarily took the view that a mortgage suit was a suit for land. The mortgage being in effect an unregistered one, the Calcutta Court would have had no jurisdiction, whether the suit was or was not one for land.

[65] I do not overlook the fact that in a case coming from Calcutta, counsel may have argued on the assumption that the Calcutta view of Clause 12 was the correct one, viz., that a mortgage suit is a suit for land. Similarly, the case may have been argued on the assumption that if part of the land was within the jurisdiction, the Calcutta Court could entertain the suit. Otherwise it is difficult to understand why the suit should have been maintained in any event. As to this Lord Moulton says (p. 119) :-

Taking all these matters into consideration, their Lordships can come to no other conclusion than that parcel No. 28 was, to the knowledge of the parties to the deed, a fictitious entry probably designed to give to the deed the appearance of relating to property situated in Calcutta and therefore within the jurisdiction of the sub-registrar and the Calcutta High Court, so that registration could be obtained and actions brought in Calcutta.

I am, however, unable to see that their Lordships thereby positively upheld the jurisdiction where the suit related to land partly within and partly without the jurisdiction, any more than at p. 120 they positively ruled out any possibility of the High Court having jurisdiction should all the land be outside the jurisdiction.

[66] As regards the Madras cases, the practice of the Madras High Court would seem to have followed the decision of Mr. Justice Moore in Nalum Lakshimikantham v. Krishnasawmy Mudaliar (1903) I.L.R. 27 Mad. 15

7. On the other hand in the recent case of Krishnadosa Vithaldoss v. Ghanshamdoss & Narayanadoss which was a suit for the administration of a trust, the Chief Justice said (p. 311) :-

No one, I think, using language in its natural sense, would ever think of describing this plaint after the excision of the two grounds which Mr. Grant gave up, as being a suit for land, but it is said that there are decisions of this and other Courts which compel such a construction to be put on those words as would bring the present suit within them. It is sufficient for me to say that I do not think that any one of the authorities cited has that effect. I only desire to say one thing; and that is chiefly in reference to the case in Srinivasa Aiyangar v. Kannappa Chelly (1915) 30 M.L.J. 120 that, if that case is to be supposed to say that you are entitled to look at the amended Civil Procedure Code for the purpose of construing the words of the earlier statute, namely the Letters Patent with which we are concerned, I do not agree with it. But I am by no means convinced that that case is an authority for the position for which it was cited.

And Srinivasa Aiyangar J. said (p. 312) :-

The expression suit for land, it seems to me, must he construed as an action the primary object of which is to establish claims regarding the title to property or possession of property and no suit can be described as a suit for land as the result of the decision in which the title to, or possession of, immoveable property will not in any manner or measure be directly affected. Further, the preposition for in the expression suit for land would seem to indicate that the title to, or possession of, immoveable property must be the primary object of the action, A suit for an office or for the removal of a person from an office is a well-known form of action. This is a suit merely for the accounts of the management of a trust and for the administration of a trust.

With respect, I agree with the view which Mr. Justice Srinivasa Aiyangar there takes of the word "for."

[67] I should here mention certain decisions on the English Statutes of Limitation. It was held by Lord St. Leonards in Wrixon v. Vize (1842) 3 Dr. & War. 104, that suits for foreclosure are suits to recover land within the meaning of those Acts. That decision has been held binding in subsequent cases, and must now be accepted as good law so far as regards those particular Acts. (See Heath v. Pugh (1881) 6 Q.B.D. 345, s.c. 7 App. Cas. 235, Harlook v. Ashberry (1882) 19 Ch. D. 539, and Badeley v. Consolidated Bank (1886) 34 Ch. D. 536, 549, 551. But I do not go into further details, as the present case is one of sale and not of foreclosure and there are obvious differences in the final result of the two remedies. In the one case the mortgagee becomes the absolute owner of the land. In the other he only gets money and never gets the laud. Further, I think there is some danger in construing Clause 12 of the Letters Patent by the light of a Statute of Limitation in England. The objects of the two documents are quite different. And this difference is illustrated by Tawell v. State Company (1876) 3 Ch. D. 629 and London and County Banking Company v. Dover (1879) 11 Ch. D. 204, where Sir George Jessel held that a foreclosure suit was not a suit for the recovery of land, nor even a suit "in relation to any real estate" within the meaning of certain procedure Rules or Acts.

[68] A different argument altogether, which was strongly urged upon us by the appellant and which I have fully considered, is that we ought to construe Clause 12 of the Letters Patent by the light of Section 5 of the Code of 1859, and that if we turn to Section 33 of that Code, it is clear that the expression "suits for land" means suits relating to land. On the other hand, as pointed out by the Advocate General, Section 33 is the only section in which the expression "suits relating to land" is used. In all the other sections the expression used is "suits for land," and in several of them the context shows that the expression must there be confined to suits for the recovery of land. Accordingly, there seems to me much force in his contention that the words "relating to" in Section 33 are really bad drafting. This view is borne out by Stokes, Vol. II, p. 386, where he says :-

Again, the Code of 1859 was unquestionably ill-drawn, ill-arranged and incomplete, and there had been a large number of decisions, which showed either some inconvenience in the rules of the Code or some ambiguity of expression, or absence of direction, which had given rise to disputes.

[69] Apart from this, I deprecate having first to construe the Code of 1859 with its numerous clauses, and then to apply that construction to an entirely different document such as the Letters Patent and none the less so because the Letters Patent of 1862 were substantially altered by those of 1865. which now govern us. (See Clauses 12 and 37). Sir Lawrence Jenkins seems to have been averse to this in Vaghoji v. Camaji (1904) I.L.R. 29 Bom. 249, 2S4, 258, s.c. 6 Bom. L.R. 95

8. In this connection it must be borne in mind that the Code of 1859 regulated proceedings in the Company s Courts in the mofussil. On the other hand, the Supreme Court was enjoying the extensive jurisdiction given by the Supreme Court Charter of 1823. By Clauses 36 and 5 the Supreme Court was vested in effect with all the powers of the Courts of Chancery and King s Bench in England. By Clause 23 they were given jurisdiction over British subjects residing not only in the town and island of Bombay but in all the factories of the Company, and even in Native States. By Clause 24 they were given jurisdiction over the inhabitants of Bombay subject to certain special provisions in the case of Mahomedans and Gentoos.

[70] The effect of the High Courts Act of 1861 was to amalgamate the two Courts, the Supreme Court and the Company s Courts, into one High Court and to some degree to cut down the jurisdiction of the Supreme Court outside Bombay itself. But nevertheless to a large degree the jurisdiction and powers on the Original Side have remained distinct from those in the mofussil. For instance, the High Court on its Original Side has had expressly preserved to it many of the powers previously vested in it as under the Charter of 1823. Consequently, it is still necessary in many instances to look to that Charter to ascertain that jurisdiction.

[71] Further, if the construction which the appellant asks us to put upon Clause 12 is correct, there would be this strange result, viz., that whereas prior to 1862 this Court undoubtedly had a wide equitable jurisdiction in personam, which would have enabled it to deal with mortgages of foreign land, that jurisdiction was taken away by the Letters Patent, and that on the contrary the Original Side was not even given the jurisdiction which was expressly conferred upon the mofussil Courts by the Code of 1877 by the proviso to what is now Section 16, viz., the proviso that a suit to obtain relief respecting, or compensation for wrong to, immoveable property may "where the relief sought can be entirely obtained through his personal obedience" be instituted either in the Court where the property is or where the defendant resides or works. So, too, Section 17 gives jurisdiction to either Court where property is situate within two jurisdictions, but as that section does not apply to the Original Side, it cannot be relied on. It will also be borne in mind that although Section 5 of the 1859 Code had to be entirely recast in the Code of 1877, yet the Letters patent of 1865 were left unaltered.

[72] It was, however, strongly urged that we ought to look at the Despatch of the Secretary of State which accompanied the Letters Patent of 18

62. And the industry of my brother Fawcett has produced from the Asiatic Library the Report of the Commissioners who were appointed in 1853 to consider the question of the amalgamation of the Supreme Court and the Company s Courts and the draft rules which they prepared. But to my mind it would be wrong of us to look at either document for the purpose of construing Clause 12 except perhaps in so far as they may deal with the history of the law up to that date, and the inconveniences found in the administration of that law. (See the Solio case [1898] A.C. 571, 575). Personally I fail to see how the opinion of an officer of a Government Department, however exalted, can have any relevant bearing in a law Court on the construction of an Act of Parliament any more than, say, the Objects and Reasons or the Debates in Parliament should be looked to. (See Administrator-General of Bengal v. Prem Lal Mullick (1895) L.R. 22 I.A. 107, and Krishna Ayyangar v. Nallaperumal Pillai (1919) 22 Bom. L.R. 568, P.C.). And if the letters of one such officer are looked at, surely the replies might also have to be taken into consideration. Still less, in my opinion, ought the proposed drafts by the Commissioners to be looked at which were written some nine years before the Letters Patent in question.

[73] But if contrary to the view which I take these documents ought to be looked to, to my mind they carry the matter little further. Indeed some discussion arose as to what was the true construction of the Despatch of the Secretary of State himself. This much, however, is clear that the original proposal of the Commissioners was that the clause corresponding to Clause 12 should be "suits relating to or concerning land", and that on the other hand when we come to Clause 12 as finally enacted, those wide words are omitted, and the word "for" is used. Accordingly to my mind that would be an argument that eventually the authorities did not intend "suits for land" to have the wide meaning of "suits relating to or concerning land". So, too, in the Despatch itself, Clause 17 which was much relied on can be contrasted with Clause 24.

[74] In the view which I take of this case, it is unnecessary to decide the point of store decisis which was advanced by the Advocate General for the respondent. He relied strongly upon the judgment in the House of Lords in Bourne v. Keane [1919] A.C. 815, as showing that where the construction of a statute is doubtful and a particular construction has been adopted over a long series of years, and titles to land have been acquired in reliance upon those decisions, then speaking generally the Court will not overrule the previous course of decisions on the subject. If the Letters Patent related solely to Bombay, there would be much force in this contention. But the Letters Patent of Calcutta and Madras are in substantially a similar form, and consequently it is common ground that if the matter went to the Privy Council, it would have to be decided not on stare decisis in Bombay or Calcutta but on what was the correct view in the face of the conflicting decisions in the various Courts. But, so far as this Court is concerned, I think we may at any rate weigh the past practice in Bombay against the past practice in the Calcutta High Court, and that we should not disturb our own practice, unless we are clearly convinced that it is founded on an erroneous interpretation of the Letters Patent, or unless a different decision is arrived at by their Lordships of the Privy Council. At the present moment it is fair to say that titles have been shaken in a large number of cases by the recent decision in India Spinning & Weaving Co., Ltd. v. Climax Industrial Syndicate. The present suits are instances of it. And in this connection a statement was put in to show that during the last five years decrees for sale have been effected in some sixty different suits by the Commissioner of land outside the jurisdiction. There must be a still larger number of suits in which this Court has entertained mortgage proceedings relating to foreign land in which it has become unnecessary to proceed to a Court sale.

[75] Summarising, then, my conclusions on the whole case, I would hold that just as the primary element in a mortgage is the debt and not the security, so the primary or substantial object of a mortgage suit is the payment of the debt, and that the sale sought for is merely ancillary to the main or final end, viz., the payment of the mortgage debt. Consequently, in my judgment a mortgage suit of that nature is not a suit for land within the meaning of Clause 12 of the Letters Patent, any more than an administration suit is. If that opinion, which is in accordance with the past practice of this Court for some fifty-four years prior to India, Spinning & Weaving Co., Ltd. v. Climax Industrial Syndicate, is in fact erroneous, then I am content to err in company with Sir Charles Sargent, Sir Charles Farran and Sir Basil Scott in this Court, and I believe in company with Sir Lancelot Sanderson in the High Court of Calcutta. Further, as it would seem to me, the judgments of Sir Lawrence Jenkins and Sir Victor Coutts-Trotter support that practice, rather than the reverse.

[76] Accordingly, in my judgment, the first question submitted for our decision ought to be answered in the negative.

[77] Having regard to the answer given to the first question submitted to us, it follows that in my judgment Questions Nos. 2 and 3 ought to be answered in the affirmative, viz. "Yes under Clause 12 of the Letters Patent." This is because a part of the cause of action arose in Bombay, viz., the creation of this suit mortgage by the deposit there of the title deeds of the land in question, and because the requisite leave was obtained from the Court under Clause 12.

[78] As regards Question No. 2, another argument was advanced to us that even if the suit could not be maintained under Clause 12, it could be maintained under the general equity jurisdiction which we have inherited from the Supreme Court. But in view of the provisions of Clauses 11 and 12, I feel unable to accept this view which is largely founded on the suggestion made by Fawcett J. in Raja Kotakal v. Malabar Timber Company , which I have already dealt with. (See para. 59.)

[79] Another point under Question No. 2 still remains, and it is this. If, contrary to the view which I hold, the present suit was a suit for land within the meaning of Clause 12, then the further point arises whether the Court had not jurisdiction under Clause 12 by reason of the fact that the defendant at the time of the commencement of the suit both dwelt and carried on business within the limits of the ordinary original civil jurisdiction of this Court. This point depends on whether the last alternative under Clause 12 beginning with the words "or if the defendant...shall dwell" is a separate alternative, or whether it is dependent on the earlier alternative beginning with the words "or in all other cases."

[80] We thought this question important enough to require a further argument; and after giving my best attention to what has been urged, I would hold that the final alternative beginning with the words "or if the defendant...shall dwell" is a separate alternative, and that accordingly Question No. 2 should be answered in the affirmative on this ground also. In arriving at this conclusion I attach great importance to the fact that in the first alternative dealing with land, the verb "situated" is carried on past the words "in all other cases" to the words "within the local limits." Consequently, it seems to me that on a natural grammatical construction, the clause runs: "If in the case of suits for land...such land...shall be situated...within the local limits...or if the defendant...shall dwell...within such limits." In effect, therefore, this would divide Clause 12 into two branches made up of (a) jurisdiction re subject matter, and (6) jurisdiction re residence and place of business. The former would apply to suits for land where the property is within the jurisdiction, or in all other cases where the cause of action arises wholly or in part within the jurisdiction. The second branch would apply to jurisdiction in all cases where the defendant himself is within the jurisdiction.

[81] The latter jurisdiction is not a novel jurisdiction, for it is similar to the jurisdiction given by Clause 24 of the Supreme Court Charter of 1823 which directed that "the Supreme Court...shall have full power to hear and determine all suits and actions that may be brought aginst the inhabitants of Bombay." It is true that Clause 12 of the letters Patent of 1862 would not bear that construction, for it is clear that there the alternative of residence is confined to suits other than those for land. But that clause was in any event substantially altered by Clause 12 of the Letters Patent of 1865 which enabled cases to be heard where only a part of the cause of action arose within the jurisdiction, provided the leave of the Court was obtained. There is no such provision in the letters Patent of 18

62. And the distinct alteration in the wording of the 1865 Letters Patent by making the last alternative an independent one beginning with the words "or if," ie in striking contrast to the Letters Patent of 1862 where this final "if is not inserted. It was argued on behalf of the appellant that this final "if was only inserted in the Letters Patent of 1865 to prevent an awkward sounding sentence, but I am not prepared to accept this as a sufficient explanation.

[82] Nor as a matter of general principle does there seem to me anything wrong in a defendant thus being sued in the forum of the place where he lives or works. On the contrary prima fade he should be the last person to complain of this. Whether if the suit relates to foreign land, all the relief claimed can be granted is another matter. But as regards relief in personam, there should be no difficulty.

[83] As regards authorities, Mr. Justice Candy in Balaram v. Ramchandra (1898) I.L.R. 22 Bom. 922 has dealt with the construction of Clause 12, and has stated that no argument appears to have hitherto been advanced to the effect that residence alone would give jurisdiction under this clause (see p. 926). But in Srinivasa Moorthy v. Venknta Varada Ayyangar (1906) I.L.R. 29 Mad. 239 Sir Arnold White appears to have thought that residence alone would give jurisdiction (see p. 253).

[84] As exemplifying, however, the difficulties caused by this clause, Mr.justice Candy states in the former case at p. 925 that the uniform practice of the three High Courts of Bombay, Calcutta and Madras had been (inter alia) to construe the clause as giving jurisdiction to entertain a suit where part of the land was within the local limits. He doubted whether this was a correct view of the clause, but was not prepared to question it after the lapse of time. In Govindlal v. Bansilal , Sir Norman Macleod and Mr. Justice Shah upheld this construction, and held that a partition suit would lie provided a part of the land was within the jurisdiction and the leave of the Court was obtained. I do not propose to say anything further on this beyond what I have stated (see paras. 61-62), except that this view demolishes to a large extent many of the arguments which were urged against the powers of this Court to carry into effect a mortgage decree where the land is outside the jurisdiction. In his final speech Mr. Mulla for the mortgagor was forced to contend that the decision of Sir Norman Macleod and Mr. Justice Shah in Govindlal v. Bansilal and the corresponding Calcutta decision were incorrect, and the Court had no jurisdiction unless all the land was within the jurisdiction. And indeed it seems to me quite illogical to hold that this Court has jurisdiction in a partition action to pass decrees in rem affecting foreign land merely because some other land is within the jurisdiction, and yet that it cannot deal with foreign land in a mortgage suit either in personam or in rem, unless some land within the jurisdiction is included. And this although a mortgage suit necessarily involves a contract or an equity, while a partition suit need involve neither, but be merely one between two absolute co-owners. It does not, however, follow that because a Court can hear a suit, it must necessarily grant all the relief a plaintiff asks for. And it would be clearly impracticable for this Court to pass effective decrees in rem affecting land in, say, Africa or France, whether the suit was a partition or any other suit, and whether or no any land within the jurisdiction was included.

[85] Since the arguments were concluded, my brother Fawcett has obtained a copy of the Despatch accompanying the Letters Patent of 1865. But, for the reasons already given as regards other documents of a similar nature (see para. 72), I would hold it to be inadmissible in evidence. In any event it gives me no assistance. And it is clear that it cannot be contended that the alterations admittedly made by the Letters Patent of 1865 were unimportant. The alteration giving jurisdiction with leave where part of the cause of action arises in Bombay must of itself account for a large number of additional suits in our High Court every year. In support of the view which I take, I would cite what Lord Halsbury has stated as to the danger of accepting even the opinion of the draftsman himself as to the meaning of the documents he has drawn. In Hilder v. Dexter [1902] A.C. 474 he says as follows (pp. 477-78) :-

...I have more than once had occasion to say that in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. At the time he drafted the statute, at all events, he may have been under the impression that he had given full effect to what was intended, but he may be mistaken in construing it afterwards just because what was in his mind was what was intended, though, perhaps, it was not done...I was largely responsible for the language in which the enactment is conveyed.

This passage is also cited in Lord Birkenhead s "Fourteen English Judges" at p. 337.

[86] Under all the circumstances, I do not feel bound by any past practice to adopt the mortgagor s views of the true construction of Clause 12 as regards residence. There is no force in the question of stare decisis, for titles will not be prejudiced by adopting what I consider to be the natural construction of this clause, even if it can be said that there is a definite decision on the point. On the contrary, titles will be assisted, if anything, as in the present case. And this construction may perhaps explain why Sir Norman Macleod in India Spinning & Weaving Go., Ltd. v. Climax Industrial Syndicate (1925) L.R. 50 Bom. 1, 26 s.c. 27 Bom. L.R. 1281, 1305-6, F.B. conceded that a jurisdiction in personam does exist even in the case of foreign land. His real objection may have been that it did not exist if the defendant himself was outside the jurisdiction as well as the lands in suit.

[87] As regards Questions Nos. 4 and 5, it was agreed by counsel that they should be postponed until we had given our decision on Questions Nos. 1, 2 and 3. In view of our decision on the first three questions, it is now unnecessary to decide Questions Nos. 4 and 5. And should it be said that ordinarily an appellate Court should determine all substantial questions in case there should be a further appeal to the Privy Council, my answer in the present case is that although this is the course which this Court adopts in a normal case, the present is an abnormal one. Our Bench of Judges is a small one, and we have been mainly employed for several days in hearing what is after all the main question and one of the greatest public importance, viz., Question No. 1. And owing to the lamentable death of my brother Shah, it became necessary to have that question reargued before a larger Bench. And there has been yet another rehearing on Question No. 2 and residence. It is accordingly not feasible-having regard to the interests of other litigants who are waiting to have their cases heard-for us to devote the time of another Full Bench to decide these further questions, which, in the view we take, are now unnecessary for the purpose of deciding the present suits.

[88] Accordingly, I would answer Questions Nos. 4 and 5 by saying: "Unnecessary to decide". I would add that our answers to Questions Nos. 1, 2 and 3 are irrespective of any special legislation, such as the Dekkhan Agriculturists Relief Act.

[89] In conclusion, I would suggest the advisability of the Letters Patent being amended in such a way as to put at rest the controversies on the true construction of Clause

12. This is of course a matter for others to decide, but the difficulties of Clause 12 are not confined to mortgage suits, and in my judgment it is not right that important commercial communities like those in or dealing with Bombay should be left in doubt as to their ordinary legal remedies in case of need, nor should titles to laud be left to depend on the true construction of ill-drawn documents such as Clause 12 of the Letters Patent.