Sudhi Ranjan Das, J.

1. This is a purchasers suit arising out of an agreementfor sale of certain lands known and numbered as premises No. 6, Ahiripukar 1stLane situate outside the local limits of the Ordinary Original CivilJurisdiction of this Court.

2. The lands in question originally belonged to Kartik LalJamadar and Budhia Jamadarni. They mortgaged the lands to the defendantshusband, Tincouri Sinha. In 1928, Serajul Huq (the husband of the plaintiff)and his 3 brothers purchased the lands from the original owners, subject to themortgage in favour of Tincouri. In 1932 Tincouri, the mortgagee, filed a suiton that mortgage against the mortgagors and their assignees the Huqs. Aftervarious proceedings the lands were sold in execution of the decrees passed inthat mortgage suit in 1934 and Tincouri himself purchased the same and obtainedpossession thereof. In 1936 Tincouri transferred the lands to his wife, thedefendant, by a deed of gift.

3. On 25th February 1940, the defendant entered into anagreement in writing with the plaintiff for the sale of the lands to theplaintiff. This agreement was made in Calcutta and was executed at therespective places of residence of the plaintiff and the defendant in Calcutta withinthe jurisdiction of this Court. The present suit is founded on this agreementwhich has been marked as Ex. C in this suit.

4. By this agreement, the defendant agreed to sell and theplaintiff agreed to purchase all the lands included in the premises No. 6,Ahiripukar 1st Lane within P.S. Ballygunge, measuring more or less 12 cottahswith all the appurtenances, rights and privileges belonging thereto which,excepting the southern limit, existed on 14th March 1934 when the vendorshusband purchased the same, free from encumbrances at and for the price of Rs.5,000. The price was agreed to be paid as follows: Rs. 250 as and by way ofearnest money at the time of the execution of this agreement, Rs. 600 at least2 days before the execution of the sale deed for clearing up the arrears ofCorporation taxes upto 31st March 1940 and the balance of Rs. 4150 and also2/3rd of total amount of the arrears of rents (amounting to Rs. 207) due fromthe 3 tenants upto 31st March 1940 at the time of the execution of the saledeed. Clauses 2, 3, 5, 6 and 7 of the agreement are important. At the end ofthe agreement there is a statement as follows: "Be it mentioned here thatthe passage between the Premises No. 5 and the premises No. 6 Ahiripukur 1stLane is disputed."

5. On the date of the execution of this agreement theplaintiff paid Rs. 250 as and by way of earnest money and the fact of suchpayment appears endorsed on the agreement. On the came date copies of 2documents, namely, the deed of gift between Tincouri and the defendant and thesale certificate obtained by Tincouri evidencing his purchase of the lands atthe court sale were handed over to one Sailendra Nath Basak who acted as thepleader for the plaintiff.

6. On 20th April 1940, which was the date fixed forcompletion of the purchase the plaintiffs pleader addressed a letter to thedefendant in which, after referring to the agreement and the delivery of thecopies of 2 documents, it was alleged that it had been found that there was awide discrepancy in the description of the southern boundary and it was statedthat unless the discrepancies were explained to the satisfaction of theplaintiff she could not reasonably be expected to complete the transaction. Theletter concluded with a request that steps be taken by the defendant forexplaining the discrepancies and with an intimation that on that being done theplaintiff would do the needful in the matter at once. No reply appears to havebeen given by the defendant to this letter.

7. On 1st May 1940, the plaintiffs pleader wrote a letterto the defendant enclosing a draft conveyance for her approval. The defendantshusband received this letter with enclosure and granted a receipt (Ex. D).There is dispute as to where and by whom this letter and the draft conveyancewere delivered to the defendants husband.

8. On 7th May 1940, the defendants husband wrote back tothe plaintiffs pleader stating that the earnest money had been forfeited underthe forfeiture clause in the agreement on account of her failure to completethe transaction within 20th April 1940 and enquiring why on 1st May 1940 adraft was sent along with a letter.

9. This letter was replied to by the plaintiffs pleader on16th May 1940. It was stated that on being unable to account for thediscrepancies regarding the southern boundary he had written to the defendanton 20th April 1940 requesting her to explain the discrepancies as the plaintiffintended to complete the transaction as soon as she got satisfactoryexplanation and that thereafter the plaintiffs representative saw thedefendants husband who satisfied the former about the discrepancies and thatthereafter the plaintiff sent the draft conveyance on 1st May 1940 intending tocomplete the transaction and it had been received without any objection. Thepurported forfeiture of the earnest money was characterised as an afterthought.The letter insisted on the agreement being subsisting and plaintiff being readyand willing to have the conveyance on payment of the balance of the purchasemoney and concluded with a request for the return of the draft conveyance afterapproval so that the transaction might be completed in no time.

10. At this stage the defendant appears to have gone to apleader and through him she replied to the last letter on 20th May 1940. Inthis reply it was stated that the plaintiff having failed to pay Rs. 600 twodays prior to 20th April 1940 or to complete the transaction by that date theagreement automatically came to an end and the earnest money had beenforfeited. The plaintiffs pleaders letter of 20th April 1940 wascharacterised as a dodge. The copies of documents had been made over on thedate of the agreement and the alleged discrepancies had been explained longbefore the agreement had been entered into and indeed the discrepancies arenoted in the agreement itself and were well known to the plaintiff and herhusband. A letter with the draft conveyance had been sent on 1st May 1940apparently as another dodge. That was replied to on 7th May 1940 and the storyof interview and explanation of discrepancies was false. Without prejudice,however, the defendant was prepared to reconsider the matter should theplaintiff undertake to complete the transaction by 27th May 1940 and give suchundertaking in writing within 24 hours after receipt of this letter, time beingof the essence of this offer.

11. On 23rd May the plaintiffs pleader wrote to say that20th April 1940 had been fixed as a provisional date for completion and thedraft conveyance had been sent in advance for expediting matters. It wascomplained that copies of only 2 documents had been given and not of the restand called upon the defendant to send over copies of all other documents so asto enable the plaintiff to investigate into the defendants title. It endedwith reiterating readiness and willingness on the part of the plaintiff tocomplete the transaction as soon as possible.

12. The defendants pleader sent the final reply on 30th May1940 denying that 20th April 1940 was fixed as a provisional date and assertingthat the plaintiff had not been ready to do her part and that the agreementautomatically came to an end on 20th April 1940 and declining to do anythingmore after the plaintiff had failed to take advantage of the chance offered bythe defendants pleaders letter of 20th May 1940.

13. It appears that on 6th November 1940 the defendant soldthe lands to another party named Mahbub Mistry at and for Rs. 6000 of which thepurchaser retained Rs. 1000 for 3 years.

14. The present suit was filed on 20th December 1940. Afterpleading the agreement in suit the plaintiff in para. 2 of the plaint sets upan agreement for extension of time for delivery of the title deeds by thevendor and payment of the balance of the purchase money by the purchaser tillthe end of September 1940 by mutual consent. In the particulars furnished bythe plaintiffs solicitor this extension of time is said to have been agreedupon on 1st May 1940 i.e., the date when the draft conveyance had beendelivered along with a letter. After reciting the plaintiffs readiness andwillingness the plaint formulates the plaintiffs claim in para. 5 in thefollowing terms:

5. The plaintiff claims that either this Honble Court willorder the defendant specifically to perform the agreement and to do all actsnecessary to put the plaintiff in full possession of the said property and topay the costs of this suit or in the alternative to () direct the defendant topay to the plaintiff damages to such extent as to this Honble Court may seemfit and proper and costs of this suit.

Then follow the prayers:

The plaintiff claims:

(a) decree for specific performance and/or

(b) damages to such extent as to this Honble Court may seemfit and proper: and

(c) injunction and costs.

15. In the written statement the defendant denies that thisCourt has any jurisdiction to entertain this suit or that there was anyextension of time or that the plaintiff performed her part of the agreement orwas ready or willing to do so. It avers that as the plaintiffs husband alongwith his 3 brothers were formerly owners of this property, they had copies ofall old title deeds and did not want them and that is why only copies of thetwo subsequent documents had been taken by them. The defendant states that theplaintiff having failed to perform her part of the agreement, the defendant onor about 6th November 1940 sold the premises to one Mahbub Mistry of No. 4,Cantofer Lane for Rs. 5000 and the plaintiff had full knowledge of that saleand that in the circumstances the suit as framed is not maintainable.

16. After Mr. Sircar opened the case for the plaintiff, Mr.Mullick appearing for the defendant submitted that on the plaint as framed theplaintiff was not entitled to claim any damages as on a breach of the contract.The land had been sold away and consequently there could not be an actualspecific performance by execution of a deed of transfer of the property infavour of the plaintiff. Mr. Mullick, however, conceded that on the plaint asit is, it is open to the plaintiff, in the circumstances that have happened, toclaim compensation in lieu of specific performance under S. 19, Specific ReliefAct. Mr. Sircar stated that be would not claim damages as on a breach ofcontract and did not desire to amend the plaint. He stated that he would becontent with compensation in lieu of specific performance under S. 19, SpecificRelief Act. Mr. Sircar conceded that if a purchasers suit for specificperformance of an agreement for sale of land outside Calcutta is notmaintainable in this Court, this suit, although the plaintiff is now claimingcompensation, must be dismissed. Mr. Sircar and Mr. Mullick both agreed that,in the circumstances, the suit must yet be treated as one by the purchaser forspecific performance of an agreement for sale of land situate outside theOrdinary Original Civil Jurisdiction and the legal position was exactly thesame as if the lands were yet available to be transferred to the plaintiff. Inother words it was agreed on both sides that the suit is still a suit forspecific performance but that the land having been sold away the decree willaward compensation as specific relief on the footing that the agreement issubsisting and not damages as for breach of the agreement. On this footing thefollowing issues were settled:

Issues.

1. Has the Court jurisdiction to entertain this suit

2. Having regard to Cl. 5 of the agreement, is this suitmaintainable

3. Was the time for delivery of the title deeds and paymentof purchase money extended till the end of September 1940

4. Was the plaintiff ready and willing to perform thecontract at the due date and at all times thereafter

5. Did the defendant sell the premises in suit to MahbubMistry If so, did the said sale take place with the plaintiffs knowledge

6. Is the plaintiff entitled to compensation If so, forwhat amount

7. To what relief, if any, is the plaintiff entitled

17. I have had the pleasure of listening to the veryinteresting, able and learned arguments addressed to me from both sides onissue 1 which raises the vexed question whether a purchasers suit for specificperformance of an agreement for sale of land is a "suit for land"within the meaning of Cl. 12, Letters Patent. This question was, untilrecently, tacitly regarded as settled, so far as this Court was concerned. In1937 the question was raised in the case of All India Sugar Mills Ltd. v.Sardar Sundar Singh I.L.R. (1937) 2 Cal. 644 : (: A.I.R. 1937Cal. 593) and was answered by Ameer Ali J. in the affirmative. In 1943 thequestion was canvassed over again in Suit No. 822 of 1940, Probodh Kumar Das v.The Dantmara Tea Co. Ltd., before Gentle J. and his Lordship after reviewingthe earlier decisions answered the question in the negative. There are thus twoconflicting decisions of recent times on this important point each of which isentitled to great respect and careful consideration. Understanding that thelast mentioned decision had been appealed from, I suggested that I should postponedelivering my judgment in the case now before me until after the point had beenauthoritatively set at rest by the decision of the Court on appeal. Mr.Mullick, however, informed me that he had good reason to believe that there wasconsiderable uncertainty as to whether the plaintiff appellant, who had won onthe preliminary point but had lost on merits, would proceed with that appealand he pressed me to dispose of this suit. I have, therefore, no otheralternative but to deliver my judgment, although I would have much preferred toawait the decision of the Court on appeal. Since I have to give my decision, itis necessary that I should not shirk the responsibility of stating my reasonsin support thereof.

18. The expression suit for land has given infinitetrouble to Judges who have had to construe it to arrive at its true meaning andimport. A perusal of the cases reported in the Law Reports will at oncedisclose a singular lack of uniformity of decisions. Indeed the readers mindis bound to be "overpowered by their multitude and the subtlety of thedistinctions between them." I shall, therefore, not take upon myself whatI consider to be an impossible task of attempting to reconcile the numerousdivergent and conflicting decisions and deduce any common principle therefrom.I propose, therefore, to examine the expression on broad and general principlesof interpretation and only to deal with the reported cases relating to suitsfor specific performance. I am conscious that in doing so, I may be adding tothe confusion that has already arisen, by reason of the conflicting decisionsof this and other High Courts, as regards the true meaning and import of thatexpression but I see no help for it. Some day in the near future, the mattermay, I hope, be clarified and set at rest by the Legislature or at any rate, sofar as this High Court is concerned, by an authoritative decision of a FullBench of this High Court.

19. It will appear from the numerous reported decisions thatthe expression suit for land has been construed by different Judges to havedifferent meanings. Broadly speaking three different meanings have been putupon the expression suit for land namely:

(a) a suit to obtain land i.e., for recovery of land;

(b) a suit in which, having regard to the issues raised inthe pleadings, the decree or order will affect directly the proprietary orpossessory title to land i.e., a suit in which the substantial question is theright to land; and

(c) a suit relating to or concerning land.

It will be noticed that the first is the narrowest and thelast is the widest meaning and in between the two there is the second meaningwhich to some extent narrows down the wider meaning by the addition of somequalifying adverb like directly or substantially or primarily, Differentlearned Judges have arrived at one or other of these meanings by adoptingdifferent processes or reasonings. Some have adopted the method of simpleinterpretation which has now been laid down and emphasised in Bank of England v.Vagliano Brothers, (1891) A.C. 107 : (60 L.J.Q.B. 145) as a cardinal rule ofinterpretation, namely, the rule of putting the ordinary natural meaning onordinary English words, uninfluenced by any considerations derived from theprevious state of the law. By adopting this method they have arrived at themeaning (a) by laying emphasis on the preposition for. The latest examples ofthis method are to be found in the judgment of Sanderson C.J. in Nagendra NathChowdhuri v. Eraligool Co. Ltd., (1922) 49 Cal. 670 : (:A.I.R. 1922 Cal. 443) [LQ/CalHC/1922/9] and the judgment of Blackwell J. in the Bombay Full Benchcase of Hatimbhai Hassanally v. Framroz Eduljee, (1927) 51 Bom. 516 [LQ/BomHC/1927/17] :(: A.I.R. 1927 Bom. 278 [LQ/BomHC/1927/17] (F.B.)). Some learned Judges have followedthe doctrines of English equity on the hypothesis that the Letters Patentestablishing the High Courts in India have incorporated those doctrines andhave construed the expression "suit for land" in the light of thosedoctrines. Their reasonings have been two-fold: Courts of Equity in Englandentertain certain suits concerning land outside the jurisdiction if thedefendant is resident within jurisdiction. The High Court has all the powers ofthe Courts of equity and can act in personam and therefore can entertain thosesuits and therefore those suits are not suits for land. Conversely Courts ofEquity do not entertain certain suits concerning foreign land even if thedefendant is within jurisdiction and therefore the High Court also cannot entertainthose suits and therefore those suits are "suits for land." Applyingthese reasonings they have arrived at meaning (b). As examples of this methodof construction I may refer to the cases of Yesvantrav Holkar v. DadabhaiCursetji Ashburner, (1890) 14 Bom. 353 and Goculdas v. Chaganlal, (1927) 54Cal. 655 : (: A.I.R. 1927 Cal. 768) [LQ/CalHC/1927/76] and the cases of thisHigh Court and the Rangoon High Court following the case of Goculdas vChaganlal, 54 Cal. 655 [LQ/CalHC/1927/76] : (: A.I.R. 1927 Cal. 768) [LQ/CalHC/1927/76] . Lastlysome learned Judges have adopted what may be called the historical method anddelving deep into the past history of the law evidenced by repealed enactmentsand other statutes in pari materia, reports of Law Commissioners, despatch fromthe Secretary of State and text books of eminent writers have, on thehypothesis that the intention of the authorities was to bring about uniformityof the jurisdiction of the different Courts, arrived at meaning (c). Examplesof this method of construction are to be found in Nalum v. Krishnaswamy, (1903)27 Mad. 157; Sudamdih Coal Co. Ltd. v. Empire Coal Co. Ltd., (1915) 42 Cal. 942: (A.I.R. 1916 Cal. 557) and in the dissentient judgment of Fawcett J. in theBombay Full Bench case of Hatimbhai Hassanally v. Framroz Eduljee, (1927) 51Bom. 516 : (: A.I.R. 1927 Bom. 278 [LQ/BomHC/1927/17] (F.B.)). This method hasled the learned Judges adopting it to construe "suit for land" in cl.12 not only in the light of the same expression in S. 5 of the Code of 1859 andthe territorial restrictions on jurisdiction of the mofussil Court perpetuatedthereby but also to read into cl. 12 the provisions of S. 16 of the later Codesof 1877, 1882 and 1908 which amended that section, on the hypothesis that thelatter section only illustrated what was meant by the expression "suit forland." I have to decide for myself which of these three methods andmeanings I should adopt.

20. In order to appreciate the methods of constructionadopted by those learned Judges who arrived at meanings (b) and (c) and toascertain their merit and, if I may add, their deficiencies, one hasnecessarily to undertake a close study of the Statutes and Chartersestablishing the High Courts in India, and the Regulations prescribing thejurisdiction and powers of the Mofussil Courts. The Indian High Courts Act 1861(24 and 25 vic. C. 104) and the Letters Patent of 1862 and of 1865 all take usback to the earlier Statutes and Charters under which the Mayors Court andsubsequently the Supreme Court were constituted. It is well established that,subject to the provisions of the present Letters Patent, this High Court hasinherited the jurisdiction of the Supreme Court of Calcutta.

21. It is, therefore, necessary to consider the question ofjurisdiction of this High Court in the light of the earlier Statutes andCharters. In dealing with those Statutes and Charters, I shall confine myselfonly to those provisions thereof which have a bearing on the Original Civiljurisdiction of the particular Court constituted thereunder.

22. The ancient Statutes and Charters will be found referredto and discussed elaborately in the judgment of Westropp J. in the case ofNowroji Beramji v. Henry Rogers, (1867) 4 Bom. H.C.R. (O.C.J.) 1. For mypresent purpose, however, it will be enough to start with the Letters Patent of1726 granted by King George I to the United Company of Merchants of Englandtrading to the East Indies. These Letters Patent established and constituted 3several Courts of Record, by the name of Mayors Court, at Madras, Bombay andFort William in Bengal. The Mayors Court of Calcutta was authorised to try,hear and determine all civil suits, actions and pleas between party and partythat should or might arise or happen or that had already arisen or happenedwithin the said town or factory of Calcutta at Fort William in Bengal or withinany of the factories subject or subordinate thereunto. Its jurisdiction couldbe invoked upon complaint to be made in writing by or on behalf of any personor persons against any other person or persons whatsoever then residing orbeing or who, at the time when such cause of action did or should accrue did orshould reside or be within the said town of Calcutta at Fort William in Bengalor the precincts, districts or territories thereof. It was to give sentence orjudgment according to justice and right. The Governor or President and Councilwere empowered to make, constitute and ordain bye-Laws, Rules or Ordinances forthe good government and Regulation of the Corporation and of the inhabitants ofthe factories aforesaid, agreeable to reason and not contrary to the laws andStatutes of England.

23. It will be noticed that the civil jurisdiction of theMayors Court of Calcutta was dependent upon the residence of the defendant aswell as the accrual of the cause of action within the town or Factory ofCalcutta, at Fort William in Bengal or within any of the factories subject orsubordinate thereunto. It was not necessary that the defendant must reside orthe cause of action must accrue within the town of Calcutta. There was nodistinction between causes of action relating to land and other causes ofaction. The laws to be administered by the Mayors Court were the bye-laws andordinances and rules of justice and right.

24. These Letters Patent of 1726 were surrendered by theEast India Company to King George II and the company obtained fresh LettersPatent in 1753. No substantial change in the jurisdiction and powers of theMayors Court was made by the Letters Patent of 1753. Then came what iscommonly known as the Regulating Act of 1773 (Statute 13 Geo. III C. 63) whichempowered His Majesty by Charter to erect and establish a Supreme Court at FortWilliam, with full power and authority to exercise and perform all civil,criminal, admiralty and ecclesiastical jurisdiction. Sections 14 and 16 of thisAct were in the following terms:

14. Provided, nevertheless, and be it further enacted, bythe authority, aforesaid, that the said new Chatter, which His Majesty ishereinbefore empowered to grant, and the jurisdiction, powers and authoritiesto be hereby established, shall and may extend to all British subjects whoshall reside in the Kingdoms or provinces of Bengal, Bihar and Orissa, or anyof them, under the protection of the said United Company; and the same Chartershall be competent and effectual and the Supreme Court of judicature thereinand thereby to be established, shall have full power and authority to hear anddetermine all complaints against any of His Majestys subjects for any crimes,misdemeanors or oppressions committed, or to be committed, and also toentertain, hear and determine any suits or actions whatsoever, against any ofHis Majestys subjects in Bengal, Bihar and Orissa, and any suit, action orcomplaint against any person who shall at the time when such debt or cause ofaction or complaint, shall have arisen, have been employed by, or shall thenhave been, directly or indirectly, in the service of the said United Company,or any of His Majestys subjects.

16. Provided also, and be it enacted, that the said SupremeCourt shall hear and determine any suits or actions whatsoever, of any of HisMajestys subjects against any inhabitant of India, residing in any of the saidKingdoms or Provinces of Bengal, Bihar and Orissa, or any of them, upon anycontract or agreement, in writing, entered into by any of the said inhabitantswith any of His Majestys said subjects, where the cause of action shall exceedthe sum of five hundred current rupees, and where the said inhabitant shallhave agreed in the said contract, that, in case of dispute, the matter shall beheard and determined in the said Supreme Court; and all such suits or actionsmay be brought, in the first instance, before the said Court, or by appeal fromthe sentence of any of the Courts established in the said provinces or any ofthem.

Section 36 of the Act empowered the Governor-General inCouncil to make subject to certain conditions, such rules, ordinances andregulations for the good order and civil government of the companys settlementat Fort William and other factories and places subordinate or to be subordinatethereto as should be deemed just and reasonable and not repugnant to the lawsof the realm.

25. Pursuant to the Regulating Act of 1773 King George IIIissued the Charter dated 26th March 1774 establishing a Court of Record calledthe Supreme Court of Judicature at Fort William in Bengal. For our presentpurpose reference may only be made to cls. 13, 14, 15, 16 and 18 of thisCharter. Under cl. 13 the Supreme Court of Calcutta was empowered to hear,examine, try and determine in the manner thereinafter mentioned:

(a) All actions and suits which should or might arise,happen, be brought or promoted upon or concerning:

(i) any trespasses or injuries of what nature or kind soever;

(ii) any debts, duties, demands, interests, or concerns ofwhat nature or kind so ever;

(iii) any rights, titles, claims or demands of, in or to anyhouses, lands or other things, real or personal, in the several provinces ordistricts called Bengal Bihar and Orissa or touching the possession or anyinterest or lien in or upon the same.

(b) All pleas, real, personal or mixed, the causes of whichshould or might hereafter arise, accrue or grow against:

(i) The United Company.

(ii) The Mayor and Alderman of Calcutta.

(iii) Any other of "our subjects" who should beresident within the said provinces, districts or countries called Bengal, Biharand Orissa or who should have resided there or who should have any debts,effects or estates, real or personal within the same.

(iv) The executors and administrators of such of "oursubjects."

(v) Any other person who should, at the time of such actionbeing brought or at the time when any such action should have accrued, he orhave been employed by the United Company, the Mayor and Alderman or of anyother of "our subjects."

(vi) Other inhabitants of India residing in the saidprovinces, districts or countries of Bengal, Behar and Orissa upon any contractin writing entered into by them with any of His Majestys subjects, where thecause of action should exceed Rs. 500 and when such inhabitant should haveagreed in the said contract that, in case of dispute, the matter should bedetermined in the said Supreme Court.

Clause 14 empowered the Supreme Court of Calcutta to givejudgment and sentence according to justice and right. Clauses 15 and 16 dealtwith execution and the powers of the Sheriff. Under cl. 18, the Supreme Courtwas also constituted a Court of Equity with full power and authority toadminister justice in a summary manner, as nearly as may, according to therules and proceedings of the High Court of Chancery in Great Britain.

26. It will be noticed that the conditions of civiljurisdiction of the Supreme Court in the matter of suits and actions were: (i)that the defendant must be one of the 6 classes of persons. This civiljurisdiction was confined mainly to "our subjects" or those who wereemployed by "our subjects" or those who entered into written contractswith "our subjects." It is well known that at that time theexpression "our subjects" i.e. "British subjects" meant andincluded only British-born subjects of The King and this restriction ofjurisdiction to British subjects was due to a policy of avoiding conflict withthe formal overlordship of the Moghul Emperor as will appear from the case ofThe Raja of Vizianagaram v. The Secretary of State for India, I.L.R. (1937)Mad. 383 : (A.I.R. 1937 Mad. 51) which was referred to in In the matter ofRatanji Ramji, I.L.R. (1942) Bom. 39 [LQ/BomHC/1941/81] : (A.I.R. 1941 Bom. 397 (S.B.)): (ii) thatin suits "concerning" any right to any property real or personal, theproperty must be situate within the provinces of Bengal, Bihar and Orissa. Thecivil jurisdiction in respect of suits "concerning" laud was notconfined to the town of Calcutta but extended to the provinces of Bengal, Biharand Orissa. So much for the civil jurisdiction to try and hear suits andactions. If the above conditions were fulfilled in any particular case, thecase fell within the civil jurisdiction of the Supreme Court. Once a suit oraction was properly filed in the Supreme Court the question as to what law theSupreme Court had to administer in the exercise of this jurisdiction wasanswered by the provisions of Cl. 14 and Cl. 18, namely, the rules of justiceand right and the rules of English Equity. This was of course subject to therules, ordinances and regulations made by the Governor-General in Council underS. 36, Regulating Act of 1773. One should carefully note that the RegulatingAct and the Charter issued thereunder dealt with the two matters, jurisdictionand laws to be administered, separately. It will be found hereafter that thismethod of separate treatment of the two matters have been perpetuated insubsequent Statutes and Charters. This separate treatment of jurisdiction andlaws to be administered in the exercise of jurisdiction has, in my humbleopinion, been overlooked by learned Judges who have adopted the method ofconstruction on equitable principles.

27. In passing, reference may be made to the Act ofSettlement 1781 (Stat. 21 Geo. III c. 70). This Act took away the jurisdictionof the Supreme Court in any matter concerning revenue and provided that noperson should be subject to the jurisdiction of the Supreme Court on account ofhis being a landholder or farmer of land or of receipt of any pension,compensation or share of profit or for being employed by the company or anynative of Great Britain. Section 17 of this Act was in following terms:

17. Provided always, and be it enacted, that the SupremeCourt of Judicature, at Fort William, Bengal, shall have full power andauthority to hear and determine, in such manner as is provided for that purposein the said Charter or Letters Patent, all and all manner of actions and suitsagainst all and singular, the inhabitants of the said City of Calcutta;provided that their inheritance and succession to lands, rents and goods, andall matters of contract and dealing between party and party, shall bedetermined, in the case of Mahomedans, by the laws and usages of Mahoniedans,and in the case of Gentoos, by the Saws and usages of Gentoos; and where onlyone of the parties shall be a Mahomedan, or Gentoo, by the laws and usages ofthe defendant.

Thus the personal laws of the Gentoos and Mahomedans wereadded to the laws to be administered by the Supreme Court in certain specifiedmatters and all inhabitants of the city of Calcutta became amenable to thejurisdiction of the Supreme Court. It will thus be seen that from this time theoriginal civil jurisdiction of the Supreme Court was dependent only on theresidence of the defendant within the city of Calcutta and there was nolimitation that in suits "concerning" land, the land must be situatein the city of Calcutta. The Supreme Court was, therefore, empowered toentertain any suit "concerning" land provided the land was situate inthe provinces of Bengal, Bihar and Orissa and the defendant resided in the cityof Calcutta.

28. It will be convenient here to very briefly refer to thejurisdiction of the zillah Courts established by the East India Company and thelaws to be administered by those Courts. Under S. 7 of the Bengal RegulationIII [3] of 1793 all natives and other persons not British subjects wereamenable to the zillah and city Courts. Under S. 8 of that Regulation thezillah and city Courts were empowered to take cognizance of all suits andcomplaints respecting the succession or right to real or personal property,land rents, revenues, debts, accounts, contracts, partnerships, marriage,caste, claims to damages for injuries and generally all suits and complaints ofcivil nature in which the defendant was a native or other person not Britishsubject, provided the land to which the suit related was situated and in allother cases the cause of action arose or the defendant at the time of thecommencement of the suit resided within the limits of the Court. As regards thelaws to be administered by those Courts reference may be made to Regulations IV[4] of 1793; III [3] of 1803 and VII [7] of 1832 and finally to the Bengal,Agra and Assam Civil Courts Act of 1887. There were similar Regulations inforce in Bombay and Madras.

29. From what has been stated above, it will be noticed thatthe jurisdiction of the zillah Courts and city Courts in suits"respecting" or "relating to" land was strictly restrictedto lands situate within their local limits, but the jurisdiction of the SupremeCourt extended to lands throughout the provinces of Bengal, Bihar and Orissaprovided the defendant was an inhabitant of the city of Calcutta. Thisdistinction has, in my humble opinion, been overlooked by the learned Judgeswho have adopted the historical method of construction. This distinctivefeature of the jurisdiction of the Supreme Court is clearly stated andemphasised in the judgment of Peel C.J. in Musleah v. Musleah, (1844) 1Fultons Rep. 420 at p. 443 in the following terms:

These authorities appear to me to be decisive of the question.The Crown has erected Courts of Justice in India. The Supreme Court of thispresidency, one of those Courts, has jurisdiction to try causes relating tolands within the three provinces of Bengal, Bihar and Orissa. Its process goesagainst them directly. An ejectment lies for them. They are sequestered underits decree, partitioned, redeemed, foreclosed on mortgage suits, Receiversappointed for them, in short there is no power which the Court can exerciseover lands in Calcutta, which it cannot exercise over lands within the threeprovinces before mentioned. The local boundaries of Calcutta circumscribe itsjurisdiction over persons, not over things. The laws by which it is to decideare prescribed. It has no discretionary power, is not a Court of conscience,and must decide by those laws alone which are ordained for it. The general lawof the Court is the English law. The exceptions are statutory, and theintroduction of those very exceptions proves the general rule. The Courts ofthe East India Company are concurrent, and not exclusive Courts. Their courseis prescribed by Regulations. Their constituent authority is the East IndiaCompany, ours the Crown. Each must proceed in the course prescribed.

30. In 1858 the Crown assumed direct control over BritishIndia under Statute 21 and 22 Vic. C. 106 and the Crown became the paramountpower both in theory and in fact.

31. In 1859 was passed the Code of Civil Procedure. Sectionsof that Code provided as follows:

5. Subject to such pecuniary or other limitations as are orshall be prescribed by any law for the time being in force, the civil Courts ofeach grade shall receive, try and determine all suits hereby declaredcognizable by those Courts, if, in the case of suits for land or otherimmovable property, such land or property shall be situate within the limits towhich their respective jurisdiction may extend and in all other cases if thecause of action shall have arisen, or the defendant at the time of thecommencement of the suit shall dwell, or personally work for gain, within suchlimits.

If this section is compared to S. 8 of the Bengal RegulationIII [3] of 1793, it will be found that whereas in the latter section thesubject-matter of different suits were separately enumerated as suits orcomplaints "respecting" the succession or right to real or personalproperty, land-rents, revenues, debts etc, and contained a proviso that thelands to which the suit "relates" must be situate within the locallimits of the jurisdiction of the Court, in the Code of 1859 there was nodetailed enumeration of categories of suits and the suits were divided into twoclasses, namely, "suit for land" and "all other cases." Asregards "suit for land" the condition imposed was that such landshould be situate within the limits to which their jurisdiction might extend.It will be noticed at once that this condition imposed no new limitation on thejurisdiction of the mofussil Courts, for, under the Bengal Regulation to whichI have referred suits "respecting" or "relating to" landcould be entertained by a Court only if the land was situate within itsterritorial limits. The only question under the Code of 1859 was whether anychange had been brought about by the use of the expression "suit forland" in place of the expression suit "respecting" or"relating to" land. If the ordinary and natural meaning were given tothe words "suit for land" so as to include only a suit for obtainingland or for recovery of land then it would follow that a suit "respecting"or "relating to" land which was not a "suit for land" wouldfall within the category of "all other cases" and the Court wouldhave jurisdiction to entertain the same although the land was outside its locallimits provided the cause of action arose or the defendant dwelt, etc., withinits jurisdiction. This interpretation would give a wider jurisdiction to themofussil Courts than it possessed under the Bengal Regulation. On the otherhand, if a wider interpretation were given to the expression "suit forland" so as to include any suit "respecting" or "relatingto" land then the jurisdiction of the mofussil Court would remain as itwas before. This was the problem which confronted the Judges who had toconstrue "suit for land" in S. 5 of the Code of 1859. This aspect ofthe matters should always be borne in mind.

32. The Indian High Courts Act, 1861 (24 and 45 Vic. C. 104)authorised His Majesty to erect and establish High Courts of Judicature atCalcutta, Madras and Bombay and provided for the abolition of the Supreme Courtand the Court of Sudder Dewanny Adawlut and Suder Nizamut Adawlut in each ofthe Presidencies. Section 9 of this Act provided as follows:

9. Each of the High Courts to be established under this Actshall have and exercise all such civil, criminal, admiralty and vice-admiralty,testamentary, intestate, and matrimonial jurisdiction, original and appellate,and all such powers and authority for and in relation to the administration ofjustice in the Presidency for which it is established, as Her Majesty may by suchLetters Patent as aforesaid grant and direct, subject, however, to suchdirections and limitations as to the exercise of original civil and criminaljurisdiction beyond the limits of the Presidency towns as may be prescribedthereby; and, save as by such Letters Patent may be otherwise directed, andsubject and without prejudice to the legislative powers in relation to thematters aforesaid of the Governor-General of India in Council, the High Courtto be established in each Presidency shall have and exercise all jurisdictionand every power and authority whatsoever in any manner vested in any of theCourts in the same Presidency abolished under this Act at the time of theabolition of such last-mentioned Courts.

Section 10 preserved all existing provisions then in forcein India of Acts of Parliament, Orders in Council, Charters or of any Act ofthe Legislature of India which were applicable to the Supreme Court.

33. This High Court was established by the Letters Patent,dated 14th May 1862. Clauses 11 to 17 dealt with the civil jurisdiction of thisCourt and Cls. 18 to 20 prescribed the law to be administered by this Court.These Letters Patent were replaced by the Letters Patent of 1865 which are nowin force. It will be noticed that by these Letters Patent the two topics -jurisdiction and law to be administered-were kept separate and dealt with bytwo groups of clauses. Clauses 11 and 12 confer original civil jurisdiction andonce you determine that this Court has Jurisdiction, under those clauses, toentertain a particular proceeding then and only then you can turn to Cls. 18 to20, Letters Patent of 1862 which correspond to Cls. 19 to 21 of the presentLetters Patent to ascertain the law to be applied to those proceedings. In myhumble opinion, it is not permissible to cut down or enlarge the jurisdictionconferred on this Court by Cls. 11 and 12 by a reference to the provisions ofthe last mentioned clauses. Clause 11 defines the local limits of the ordinaryoriginal civil jurisdiction of this Court. Clause 12 ordains that in theexercise of its ordinary original civil jurisdiction this Court shall beempowered to receive, try and determine suits of every description subject tocertain important qualifications. The ambit and scope of the ordinary originalcivil jurisdiction of this Court must, therefore, be confined within the fourcorners of these two clauses. If these clauses cover any proceeding, then youcan apply all the laws mentioned in Cl. 19, i.e., the same law and equity asused to be administered by the Supreme Court; but you cannot, by invoking anyprinciple of law or equity, abridge or enlarge the jurisdiction conferred onthis Court by Cls. 11 and 12 and exclude or include suits or proceedings whichwere included or excluded, as the case may be, by those clauses. I respectfullyagree with the observation of Martin C.J. and Fawcett and Blackwell JJ. on thispoint in the Bombay Full Bench case to which I have already referred. I humblymaintain that the failure to observe this distinction is one of the maindefects, if I may say so respectfully, of the method of construction based onequitable principles.

34. We have seen that in the Charter issued under theRegulating Act the expression used was "concerning" land and we havenoted that by the combined operation of the Regulating Acts, the Charter issuedthereunder and the Act of Settlement the local boundaries of the town ofCalcutta circumscribed the jurisdiction of the Supreme Court over persons andnot over lands or things. The Supreme Court had jurisdiction to entertain anysuit "concerning" land outside the town of Calcutta provided it waswithin the provinces of Bengal, Bihar and Orissa and provided the defendantresided within the town of Calcutta. Some of the different kinds of suits "concerning"land that could be entertained by the Supreme Court were noted by Peel C.J. inhis judgment in Musleah v. Musleah, (1844) 1 Fulton Rep. 420, to which I havereferred. We have then seen that the Indian High Courts Act of 1861 by S. 9empowered and authorised the High Court, subject to the provisions of theLetters Patent to be issued thereunder, to exercise all jurisdiction and everypower and authority whatsoever in any manner vested in the Supreme Court. Thenwe find the expression "suit for land" in Cl. 12, Letters Patent of1862 and those of 1865. For my present purpose, the alterations introduced inCl. 12, Letters Patent, in 1865 are not material. I shall only apply myself tothe question as to what is the meaning of the expression "suit forland" in Cl. 12. If I give the ordinary and natural and, therefore, thenarrow meaning to the words "suit for land" so as to mean only a suitfor obtaining land or for recovery of land, the original civil jurisdiction ofthis Court in a suit "concerning" land which is not a "suit forland" so understood remains as before, whereas if I give a wider meaningto the words so as to include all suits "concerning" land then I cutdown the jurisdiction of this Court to a far greater extent. This is theproblem which confronts a Judge whose duty it is to construe the expression"suit for land" appearing in Cl. 12, Letters Patent. The problem wasquite different and almost opposite as I have said, in the matter ofconstruction of the same expression appearing in S. 5 of the Code of 1859. Togive the natural and narrow meaning to the words "suit for land" inthe Code of 1859 was to enlarge the jurisdiction of the mofussil Courts but togive the natural and narrow meaning to the words "suit for land" inCl. 12, Letters Patent, is to cut down the jurisdiction of this Court only tothe limited extent of excluding suits in ejectment but to leave itsjurisdiction in respect of other suits "concerning" land intact. Onthe other hand to give a wider meaning to the expression in the Code of 1859was to leave the jurisdiction of the mofussil Courts "respecting" or"relating to" land intact as before but to give the same widermeaning to the expression in Cl. 12 is to cut down the jurisdiction of thisCourt to a very great extent. It is quite clear to me that the initial positionof the two Courts being quite different the same considerations ought not toprevail in the manner of construction of the expression "suit forland" as appearing in the Code of 1859 and of the same expression in Cl.12, Letters Patent, and the construction put upon S. 5 of the Code of 1859cannot be a safe guide. The two problems were entirely different. Leaving asidethen the Code of 1859 I ask myself the meaning of that expression in Cl. 12. Itcertainly cuts down the jurisdiction of this Court. But the question is to whatextent was it intended to be cut down. It is true that the jurisdictionconferred by S. 9, Indian High Courts Act of 1861 was subject to the provisionsof the Letters Patent to be issued; but do the provisions of the Letters Patentnecessarily bring about a drastic change In my humble view, I should startwith the full jurisdiction of the Supreme Court as conferred on the High Courtby S. 9 of the Act of 1861 and then see to what extent it has been whittleddown by the Letters Patent. In construing the Letters Patent, if twoconstructions are open to me, I should adopt the one which is in favour ofjurisdiction rather than the other which takes away the jurisdiction to agreater extent. I, for one, shall be loath to put a construction on theexpression which will restrict the jurisdiction of this Court and prevent itfrom entertaining suits which were freely entertained by its predecessor theSupreme Court. I find that if I put the natural, which is in this case thenarrowest meaning on the expression "suit for land" I an preserve forthis Court almost the whole of the old jurisdiction of the Supreme Court and atthe same time conform to the true principles of constructions.

35. The historical method does not atop at putting the samemeaning on the expression in interpreting S. 5 of the Code of 1859 and Cl. 12but goes further in holding that the amendment of S. 5 of the Code of 1859 mustalso be read into Cl. 12. To examine this part of the reasoning of thehistorical method it is necessary to ascertain why S. 5 of the Code was amendedand what was the effect of such amendment. It will be convenient at this stageto refer to a few decisions on S. 5 of the Code of 1859 so as to appreciate theamendment of the Civil Procedure Code brought about in 1877. In 1872 the BombayHigh Court in Venkoba Balshet Kesar v. Rambhaji valad Arjun, (1872) 9 Bom.H.C.R. 12 held that a suit for the recovery of a mortgage debt by the sale ofthe mortgaged property was not a "suit for land" within the meaningof S. 5 of the Code of 1859 which it was held included only a suit for deliveryof land. The effect of adopting this restricted meaning was to give to theMofussil Courts a jurisdiction wider than what they had under the Regulations.In the case reported under the heading, In the matter of the petition of S.J.Leslie, (1872) 9 Beng. L.R. 171 : (18 W.R. 269) the Calcutta High Court,however, held, following the decisions in Bibee Jaun v. Meerza Mahomed Haider, 1I.J.N.S. 40 and Sm. Lalmoney Dassee v. Jaddoonauth Shaw 1 I.J.N.S. 319 whichwere decisions on Cl. 12, that a mortgage suit for sale was a "suit forland" within the meaning of S. 5 of the Code of 1859. The effect ofadopting this wider meaning was to make the jurisdiction of the Mofussil Courtsunder this section co-extensive with that under the Regulation. There were thustwo conflicting decisions, one extending the jurisdiction of the MofussilCourts beyond that given by the Regulations and the other maintaining the oldjurisdiction. It was in these circumstances that S. 5, Civil P.C. of 1859, wasreplaced by S. 16, Civil P.C. of 1877. The latter section was reproduced in S.16, Civil P.C. of 1882 and then in S. 16, Civil P.C. of 1908. It will be noticedthat the expression "suit for land" does not find a place in thelast-mentioned sections. The Legislature has now enumerated the differentcategories of suits relating to land which must be instituted in the Courtwithin whose jurisdiction the land is situate. The enumeration of suits in cls.(a) to (d) of S. 16 of the Code of 1877 and the later reproductions thereofgave effect to the abovementioned decision of the Calcutta High Court whichmeans that the jurisdiction of the Mofussil Courts in respect of land asenumerated therein was limited to land Within the local limits of the Courts asit was under Regulation III [3] of 1793. The proviso to the section, however,partially gave effect to the decision of the Bombay High Court by providing analternative forum for instituting suits to obtain relief respecting, orcompensation for wrong to, immoveable property held by or on behalf of thedefendant in the Court within the local limits of whose jurisdiction thedefendant resided or carried on business or worked for gain. Such, I conceive,was the purpose and effect of the new S. 16. To read all these changes into Cl.12, Letters Patent is to ignore the historical background and the expressprovision that the new section should not apply to this Court. The jurisdictionof the Supreme Court in suits "concerning" land was not confined tothe city of Calcutta whereas the jurisdiction of the Mofussil Courts in suits"respecting" or "relating to" land was circumscribed bytheir territorial limits. This distinction, in my view, makes it impossible toapply the same method of construction and giving the same meaning to theexpression "suit for land" appearing in S. 5 of the Code of 1859 andthat appearing in Cl. 12 or to read the amended S. 16 of the Code of 1877 or 1882or 1908 into Cl. 12, Letters Patent. In my humble opinion, the historicalmethod of construction errs in not taking into consideration this basichistorical difference in the jurisdiction of the Supreme Court and the MofussilCourts and goes counter to the express provision making S. 16 inapplicable tothis Court. There was nothing to prevent the Legislature to make it applicableto this Court.

36. The position of the High Court has since 1862 remainedas before as regards its original civil jurisdiction. There has been noamendment of Cl. 12. The two topics-jurisdiction and laws to be administered inexercise of jurisdiction-have been kept separate as before. There has been noalteration of the scheme in this respect either by the Government of India Actof 1915 or by the Government of India Act of 1935.

37. Keeping in view the considerations I have noted anddiscussed above, I now proceed to examine the three methods adopted bydifferent learned judges in construing the expression "suit for land"in Cl. 12, Letters Patent.

38. I first take up the second method. i.e., theconstruction of the expression in the light of the doctrines of equity, byadopting which some learned judges have arrived at meaning (b). I have set outabove the two-fold reasonings employed for arriving at this meaning. Thosereasonings do not appear to me to be logical and overlook the distinctionbetween jurisdiction and the laws to be administered in exercise ofjurisdiction. They are also incomplete in that they do not cover all suitsconcerning land as I shall show. To formulate my respectful criticisms, theyare as follows: (i) This method ignores the cardinal rule of construction laiddown in the case of Bank of England v. Vagliano Brothers, (1891) A.C. 107 : (60L.J.Q.B. 145) by not giving the natural meaning to the words in question. (ii)This method reads into Cl. 12 the equitable doctrines as a sort of proviso andtherefore adds to the clause, which is not permissible. (iii) This methodproceeds on the assumption that jurisdiction of the High Court is not confinedto Cls. 11 and 12 only but may be found also in Cl. 19. (iv). This methodignored the distinction between jurisdiction and the laws to be administered inexercise of that jurisdiction which is emphasised throughout in the Statutesand Charters. (v) This method restricts the jurisdiction of the High Court byincluding within the expression "suit for land" suits which do notfall within that expression in its ordinary and natural meaning, merely becauseCourts of Equity will not entertain those suits e.g. Goculdas v. Chaganlal, 54Cal. 655 : (: A.I.R. 1927 Cal. 768) [LQ/CalHC/1927/76] ; Provas Chandra Sinha v.Ashutosh Mukherjee, (1929) 56 Cal. 979 : (: A.I.R. 1930 Cal.258). (vi) It enlarges the scope of Cl. 12 by excluding from "suit forland" certain suits concerning land merely because Courts of Equity willentertain those suits if it can act in personam e.g. suit for specificperformance where the defendant is within jurisdiction and the land is outside.(vii) This method is an incomplete one in that it does not take intoconsideration or provide for similar suits concerning land situate outsidejurisdiction where the cause of action arises within jurisdiction but thedefendant resides outside jurisdiction e.g., suit for specific performancewhere the agreement is made within jurisdiction but the defendant residesoutside and the land is situate outside.

39. The third method i.e., the historical method is bestformulated and discussed in the comprehensive and erudite judgment of FawcettJ. in the Bombay Full Bench case of Hatimbhai Hassanally v. Framroz Eduljee,(1927) 51 Bom. 516 [LQ/BomHC/1927/17] : (: A.I.R. 1927 Bom. 278 [LQ/BomHC/1927/17] F.B.) Myrespectful objections to this method are as follows: (i) This method ignoresthe cardinal rule of construction which requires that natural meaning should beput upon ordinary English words. (ii) This method does not sufficiently takeinto consideration the different position of the Supreme Court and the MofussilCourts in matters of jurisdiction and applies the same principle ofconstruction to the Code of 1859 and Cl. 12, Letters Patent. (iii) This methodreads into Cl. 12 the provisions of S. 16, Civil P.C. which is a later Statuteand which was designed only to regulate the jurisdiction of Courts whose oldjurisdiction stood on a quite different footing and was circumscribed byterritorial limits and ignores the express provision of the Code which makesthat section inapplicable to this Court. (iv) This method takes away the oldjurisdiction of the Supreme Court inherited by the High Court to a far greaterextent by imputing a wider meaning to the expression "suit for land"than is warranted by the language and the historical considerations. (v) Thismethod involves admitting in evidence of materials e.g., Reports of LawCommissioners, Despatch of Secretary of State about the admissibility of whichthere is considerable doubt. (vi) The meaning arrived at by this methodincludes suits e.g., for administration of the estate of a deceased person orthe administration of a trust which have been held by the Privy Council not tobe suits for land in Benode Behari v. Nistarini, (1905) 33 Cal. 180 : (32 I.A.193 P.C.) and Srinivas v. Venkata Varda, (1911) 34 Mad. 257 : (11 I.C. 447) andtherefore the meaning arrived at by this method of construction cannot beaccepted as a correct definition at all.

40. I am thus left with the first method, i.e., theprinciple of simple interpretation. This method has in my humble opinion thefollowing merits: (i) It conforms to the cardinal rule of construction to whichI have referred. (ii) It leaves the jurisdiction inherited by the High Courtfrom the Supreme Court intact except with regard to what may strictly be calleda "suit for land" within the meaning of Cl. 12. (iii) The meaningarrived at by this method leaves a wide field for the application of equitableprinciple to persons within jurisdiction. (iv) This method has the approval ofthe recent decision of our Court on appeal in Nagendra Nath v. Eraligool Co.,(1922) 49 Cal. 670 : (: A.I.R. 1922 Cal. 443) [LQ/CalHC/1922/9] which isbinding on me. For reasons stated above, I respectfully adopt this method ofconstruction in preference to the other two methods and conclude that the truemeaning of the expression "suit for land" in Cl. 12, Letters Patentis a suit for recovery of land. I am not unmindful of the fact that thismeaning has not been accepted in many decisions of this and other High Courts.Some of the decisions of this Court are of the Court on appeal and binding onme. If in future a case comes before me which is fully covered by any of thosedecisions I shall feel bound to follow them but I shall do so with a respectfulprotest. As regards decisions which are not binding on me I shall respectfullydissent therefrom. If there is any inconvenience as a result of putting thissimple and natural meaning, it is for the Legislature and not for the Courts tomitigate the same.

41. I now proceed to deal with the reported decisions oncases of specific performance.

42. In Ramdhone Shaw v. Sm. Nobumoney Dassi, (1865) Bourke218, Norman J. held that a suit by the purchaser for specific performance of anagreement made in Calcutta for sale of land outside Calcutta was not a suit forland and that this High Court had jurisdiction to entertain such a suit. Thisdecision no doubt loses in weight because no reasons are given in support ofit; but it has a value of its own in that it was given shortly after theLetters Patent of 1862 came into force. This case has also been referred towithout dissent in subsequent cases. I respectfully agree with the actualdecision in this case.

43. The case of Sreenath Roy v. Caily Doss Ghose, (1879) 5Cal. 82, was one by the mortgagee for specific performance of an agreement tomortgage lands outside Calcutta or in the alternative for the return of Rs.4,000. Pontifex J. held that so far as the suit was a suit for specificperformance of the agreement with respect to land, the Court had nojurisdiction to entertain it but his Lordship passed a money decree. No reasonsare given in support of the decision on the first point. Indeed Learned Counselfor the plaintiff did not at the hearing ask for specific performance andlimited himself to the money claim and strictly speaking it was not necessaryto decide whether a suit for specific performance of such an agreement was orwas not a suit for land. No reference was made to Ramdhonis case, (1865)Bourke 218, in the judgment.

44. Yeshwantrav Holkar v. Dadabhai Cursetji Ashburner,(1890) 14 Bom. 353, was a suit by the mortgagee for specific performance of anagreement, made in Bombay, to execute a mortgage over lands situate in theisland of Salsette outside the jurisdiction of the Bombay High Court. Bayley J.held that the Bombay High Court had jurisdiction to entertain the suit. He madea decree which is set out at p. 354-355. Amongst other things, it directedspecific performance by permitting the plaintiff to enter into possession ofthe lands in question. The defendant resided outside jurisdiction. On appeal bythe defendant the decision of Bayley J. was upheld. Sargent C.J. applied what Ihave called the second method i.e., construction on the basis of equitableprinciples. The objections to this method of construction which I have setforth above apply to this decision. The learned Chief Justice overlooked thefact that the defendant did not reside in Bombay and the High Courtconsequently could not act against him in personam. He also overlooked the factthat the agreement provided for delivery of possession and the decree as drawnup directed the defendant to permit the plaintiff to take possession. On thisground, the suit may well have been held to be one for land. Apart from thisand taking the suit as a suit for specific performance only, I would have basedmy decision on the ground that it was not a suit for land because it was not asuit for recovery of land which is the correct meaning of that expression andnot on equitable ground.

45. The nest case is that of Land Mortgage Bank v.Sudurudeen Ahmed, (1892) 19 Cal. 358 decided by Trevelyan J. It was a vendorssuit for specific performance of an agreement made in Calcutta for sale ofcertain lands at Burdwan or in the alternative for damages. His Lordship made adistinction between a vendors suit and a purchasers suit and stated that hehad not to give any decision on the maintainability of the latter, although heexpressed an opinion that the purchasers suit may be a suit for land as theobject of the purchaser is to get possession of the land. His Lordship heldthat a vendors suit is not a suit for land and observed as follows at p. 367:

So far as the paragraphs of the prayer of the plaint in thiscase under the headings (a) and (c), I do not think that this is a suit forland. It is not a suit to sell or acquire possession of or title to land in anysense, Clearly it does not come within the definitions given by Sir R. Garth, Idecline to bold that wherever land has anything to do with a suit it istherefore a suit for land. I must go so far as that to accept Mr. Jacksonsargument.

If the framers of the Letters Patent had intended to excludethe jurisdiction of this Court in the way suggested, they would have useddifferent words.

46. While I agree with the actual decision I respectfullybeg to point out that the reasons do not appeal to me. I do not think that on acorrect view of the true nature and scope of a suit for specific performance ofan agreement for sale there is any real distinction between a vendors suit anda purchasers suit.

47. An agreement for sale of land necessarily involvesmutual obligations, namely, an obligation on the part of the purchaser to paythe purchase money in the manner agreed upon and obtain a deed of transfer ofthe property on such payment and an obligation on the part of the vendor uponpayment of price to execute a deed of transfer of the property to the purchaserafter making out a good title unless the title has been, by the agreement orotherwise, subsequently accepted by the purchaser. It is not necessary for meto specify all the obligations in detail. What I have stated are the minimum inany agreement for sale of land. Whoever seeks specific performance has to beready and willing to perform his part of the agreement. This readiness andwillingness has to be pleaded in the plaint and proved at the trial. In theprayer he has to pray that the agreement be specifically performed. This meansand involves that the agreement be specifically performed by both parties. Whena plaintiff asks for specific performance he offers to perform his part.Without performance on both aides, the agreement is not specifically performed.Whether the suit is brought by the vendor or by the purchaser the decree roustdirect both parties to perform their respective parts of the agreement. If theCourt is of opinion that the agreement ought to be specifically performed, thejudgment contains a declaration to that effect. Omitting the proceedingsrelating to enquiry as to title and other enquiries, it will appear from theforma of decrees in Seton on Judgments and Orders, Edn. 7, vol. 3 p. 1236 etseq. that in a vendors action the vendor is directed to execute a conveyanceand deliver the title deeds and the purchaser is directed, upon the vendorexecuting a conveyance and delivering the title deeds, to pay the purchasemoney. In a purchasers action, it is directed that upon the plaintiff payingthe purchase money the vendor do execute the conveyance and deliver the title deeds.Ordinarily, no provision is made in the decree for delivery of possession ofthe land. The decree in a suit for specific performance is mutual and enuresfor the benefit of both parties. It can be executed by either of the parties.Even if the suit be brought by the vendor, the purchaser can execute the decreeand compel the vendor to execute the conveyance and deliver the title deeds,which, when done, will transfer the title of the vendor to the purchaser.Likewise when the suit is brought by the purchaser, the vendor can uponexecuting the conveyance and delivering the title deeds, execute the decree andcompel the purchaser to pay the price. I need only refer to the case of HerambaChandra Maitra v. Jyotish Chandra Sinha, 36 C.W.N. 172 : (:A.I.R. 1932 Cal. 579) [LQ/CalHC/1931/140] where the nature of a decree for specific performance isclearly laid down by Rankin C.J. In this view of the matter, a suit forspecific performance of an agreement for sale, whether brought by the vendor orby the purchaser, must logically have the same end in view and the decreebrings about the same result. The suit no doubt "concerns" or"relates to" land but merely because a suit "concerns" or"relates to" land it is not necessarily a "suit for land".In a suit for specific performance, the purchaser need not ask for possessionat all. When the agreement is specifically performed then the purchaseracquires title and can Sue for possession. Order 2, R. 2, Civil P.C. is no barto such subsequent suit (see case in Mullas Civil Procedure Code at pp.535-536). Therefore I would rather base my decision that a suit for specificperformance simpliciter is not a "suit for land" on the ground thatit is not a suit for recovery of land than on any equitable ground or on anysupposed distinction between the purchasers suit and the vendors suit, which,in my humble opinion, is based on a superficial and partial view of the truenature and scope of a suit for specific performance.

48. In Hansraj v. Runchordas, ((1905) 7 Bom. L.R. 319) theBombay High Court following its own decision in Halkars case : (14 Bom. 353)held that a suit for specific performance is not a "suit for land".My respectful comments are as stated above.

49. The next decision in a suit for specific performance towhich I should refer is the case of Ratanchand Dharamchand v. Gobind Lall Dutt,(1921) 48 Cal. 882 : (: A.I.R. 1922 Cal. 328) [LQ/CalHC/1921/223] . It was a suitby the mortgagee, who had advanced moneys to the defendant in Calcutta, forspecific performance of an agreement to mortgage lands outside thejurisdiction. Greaves J. following Sreenath Roy v. Caily Doss Ghose, (1879) 5Cal. 82, held that the suit was a "suit for land" and dismissed thesuit. Like Pontifex J. in Sreenath Roys case : (5 Cal. 82) Greaves J. gave noreasons for his decision. With great respect to the learned Judges I am, forreasons set forth above, unable to accept their decisions as correct.

50. The case of Nagendra Nath Chowdhuri v. Eraligool Co.Ltd., (1922) 49 Cal. 670 : (: A.I.R. 1922 Cal. 443) [LQ/CalHC/1922/9] was avendors suit for specific performance of an agreement made in Calcutta forsale of a tea estate in Assam. On the application of the plaintiff company,Greaves J. made an order for the appointment of a receiver. The defendantappealed and the appeal turned on the question whether the Court had anyjurisdiction at all to entertain such a suit. Sanderson C. J. and Richardson J.held that it was not a suit for land and therefore this Court had jurisdictionto entertain it. Their Lordships followed the first method I have discussedabove. At p. 678 the learned Chief Justice observed as follows:

In my judgment, it cannot be too clearly laid down that inconstruing a statute it is necessary for the Court to give the natural meaningto the words which are used, and if it is thought advisable to include caseswhich are not covered by the words of the statute in their natural meaning, itis not for the Court to strain the language of the Statute, and the sameprinciple applies to the construction of the Charter. In my judgment, this isnot a suit for land within the meaning of Cl. 12, Letters Patent, and the Courthad jurisdiction to entertain the suit having regard to the fact that theagreement, which it is sought to enforce, was made in Calcutta. To my mind,that really disposes of this case.

This judgment is binding on me and apart from that fact, themethod of construction adopted by the learned Chief Justice appears to me to bethe only logical and correct method and I respectfully adopt the same. I have,however, humbly to point out that the view that in a vendors suit, he onlyasks for money is not logical or sound. The true view seems to me that thevendor asks all that is inherent in such a suit and a decree in such a suitwhich I have tried to explain above.

51. The case of Velliappa Chettiar v. Govinda Das, (1928) 52Mad. 809 : (: A.I.R. 1929 Mad. 721 [LQ/MadHC/1928/279] F.B.), was decided by aFull Bench of the Madras High Court. It was held that a purchasers suit forspecific performance of a contract to sell, made in Madras by parties residenttherein, is not a suit for land. While I agree with the actual decision I findit difficult to follow or adopt the main reasoning on which the decisions ofmost of the members of the Full Bench were based. The reasoning appears to bethat a suit for specific performance is a suit in personam as opposed to a suitin rem and a decree in such a suit can be enforced in personam as the defendantis residing within the jurisdiction and the High Court has jurisdiction inpersonam and therefore a suit for specific performance is not a "suit forland" within the meaning of Cl. 12. First of all I do not think that theprocess or method of execution can determine the nature of a suit, for a decreein a suit for land can in many circumstances be enforced in personam. Secondlythis reasoning does not take into consideration a suit for specific performanceof an agreement made within jurisdiction for sale of land outside jurisdictionagainst defendant who may be outside jurisdiction. This reasoning will notapply to that case. Will the Court then decline to entertain the suit althoughit is not a "suit for land" and although a part of the cause ofaction arose within jurisdiction merely because the defendant being outside theCourt cannot act against him in personam I cannot think that that is thecorrect view. This method of interpretation does not provide for such case andis therefore erroneous and incomplete. I would therefore support this decisionon the broad and simple ground on which it was based by Venkata Subba Rao J.namely that not being a suit for recovery of land the suit was not a "suitfor land" although I do not adopt the adverb "primarily" used bythe learned Judge.

52. The next case to be considered is that of All IndiaSugar Mills Ltd. v. Sardar Sundar Singh, I.L.R. (1937) 2 Cal. 644 :(: A.I.R. 1937 Cal. 593) [LQ/CalHC/1937/123] decided by Ameer Ali J. His Lordshipfollowed the decision of Greaves J. in Ratanchand Dharamchand v. Govind LallDutt, (1921) 48 Cal. 882 : (: A.I.R. 1922 Cal. 328) [LQ/CalHC/1921/223] which inits turn followed the earlier decision in Sreenath Roy v. Cally Doss Ghose,(1879) 5 Cal. 82. I have made my respectful comments on those two earlier casesand pointed out that the learned Judges there do not give any reason in supportof their decisions and consequently those decisions are not of any great helpin ascertaining the meaning of the words "suit for land" in Cl. 12.Ameer Ali J. referred to the different methods of construction and preferredthe method adopted by Page J. in Goculdas v. Chaganlal, (1927) 54 Cal. 655 :(: A.I.R. 1927 Cal. 768) [LQ/CalHC/1927/76] and that adopted by the Madras HighCourt in Vellippa Chettiar v. Govinda Dass, (1928) 52 Mad. 809 : (A.I.R. 1929Mad. 721 F.B.) and was inclined to hold that the suit before him was not a"suit for land" but his Lordship felt bound, having regard to thedecisions of this Court and to the manner in which they have long beenunderstood, to hold that the suit before him was a "suit for land". Ihave made my submissions with regard to this method of construction based onprinciples of equity and it is my misfortune that I cannot appreciate the logicof that method. I have enumerated the objections to that method and I need notrepeat them. With the greatest respect to the learned Judge, I find the methodof simple interpretation which he has described as the popular construction ofthe clause as the most logical method of construction for reasons enumerated byme above.

53. The last decision that I must refer to is that of GentleJ. in Suit No. 822 of 1940, Probodh Kumar Das v. The Dantmara Tea Co. Ltd.delivered on 12th July 1943 wherein his Lordship has held that a purchaserssuit for specific performance is not a "suit for land". Irespectfully agree with the actual decision in that case. I am also inagreement with Gentle J. in so far as he bases his decision on the reasoninggiven by Sanderson C.J. in Nagendra Nath v. Eraligool Co. Ltd. (1922) 49 Cal.670 : (: A.I.R. 1922 Cal. 443) [LQ/CalHC/1922/9] , namely that the naturalmeaning should be given to the words "suit for land". His Lordshiphas, however, also referred to the powers of Court of Equity to act in personamin support of his decision and held that there is no difference in thatrespect, between the jurisdiction of this High Court and the English Courts.For reasons already given I find it difficult to accept this method ofinterpretation of Cl. 12.

54. On a review of the decisions of the different HighCourts in suits for specific performance and on a construction of theexpression "suit for land" in Cl. 12 I have come to the conclusionthat in its true meaning that expression only covers a suit for recovery ofland and a suit for specific performance simpliciter whether brought by thevendor or by the purchaser, is not a "suit for land" so understood,As I have explained above there is, in legal principle, no distinction betweena vendors suit and a purchasers suit.

55. The above conclusion, however, does not dispose of thecase before me. I have already referred to para. 5 of the plaint. The formalprayer, in my opinion, must be regarded as a compendious formula covering allthat has been claimed in para. 5 of the plaint. The agreement itself providesfor the purchaser taking possession of the lands. In this view of the matter,this suit is not a suit for specific performance simpliciter but it is also asuit for possession of the lands which are outside the jurisdiction of thisCourt. In so far as it is a suit for possession it is a "suit forland" according to the meaning I put on that expression and therefore thisCourt has no jurisdiction to entertain this suit. I, therefore, answer issue 1in the negative.

56. As the matter may not rest here, I consider it proper togive my decision very briefly on the merits. By the terms of the agreement thepurchase was to be completed by 20th April 1940. It is common ground that itwas not completed by that date. There is an allegation in the plaint that thetime for performance was extended upto the end of September 1940 by mutualagreement which is said, in the particulars supplied to the defendant, to havebeen arrived at on 1st May 1940. There is no mention of this alleged agreementin any of the letters written on behalf of the plaintiff to which I havealready referred. The story of extension of time is mentioned, for the firsttime, in the plaint and depends on the oral testimony of the plaintiffshusband who has deposed on her behalf. The defendants husband, who was incharge of this matter on behalf of the defendant, denies that there was anysuch agreement. The plaintiffs husband is not supported by any contemporaneousdocument. On the contrary I find from the correspondence that the first excuseput forward for non-completion was the discrepancy regarding the southernboundary. It appears to me to be a lame excuse. The plaintiffs husband and hisbrothers were the original owners of these lands and knew about the boundaries.The agreement itself stated that there were discrepancies regarding thesouthern boundary. Therefore there was no question of the defendants husbandexplaining anything. The next grievance was about non-delivery of copies of oldtitle deeds. The plaintiffs husband and his brothers were original owners andat the time of their purchase they took copies of all old title deeds from thedefendants husband who was the mortgagee. On the date of the agreement theyonly took copies of the two subsequent title deeds. Finally it was said that20th April 1940, had been fixed provisionally. Even on the date of the letterdated 23rd May 1940, it was not alleged that the time had been extended on 1stMay 1940. The plaintiffs husband appeared to me to be a very unsatisfactory witness.He fenced and prevaricated as to his age, as to his knowledge of theproceedings in the mortgage suit, about the extent of the means of theplaintiff and the properties inherited by her and about the defendant appearingbefore him. Of the two witnesses I certainly prefer the evidence of thedefendants husband. On the evidence before me I am not satisfied that therewas any agreement for extending the time for completion and I answer issue 3 inthe negative.

57. Ordinarily time is not regarded as of the essence of acontract for sale of land unless it is made so specifically. Clause 5 of theagreement appears to me to be a condition making time of the essence of thecontract. I have held that there was no agreement for extension of time. Aquestion of waiver was raised based on the fact that the defendants husbandaccepted the draft conveyance after the time for completion had expired. Thedefendants husband has explained the circumstances in which the letter and thedraft had been left with him at his shop and said that he had to leave town onthat very date and replied to that letter on 7th May 1940. I do not hold that,in the circumstances, there was any waiver. There being thus no extension oftime or waiver of time, the agreement became void and I am inclined to holdthat the suit is not maintainable and to answer issue 2 in negative.

58. The plaintiff does not appear to me to have been readyand willing to complete the purchase throughout. No tender was made for thepayment of arrears of municipal rates. The burden of proof is on the plaintiffbut the evidence of the plaintiffs means does not appear to be satisfactory. Iwould answer issue 4 also against the plaintiff.

59. On the evidence before me, I am not satisfied that theplaintiffs husband was ignorant of the sale of the premises by the defendantto Mahboob Mistry in November 1940. This suit was filed on 20th December 1940.The dates are significant. The fact that Mahboob Mistry retained Rs. 1000 outof the purchase money seems to support the evidence of defendants husband thatthe plaintiffs husband threatened the purchaser against purchasing the lands.In view of my other findings I do not, however, consider it necessary toexpress any definite opinion on issue 6.

60. In view of my findings on issues 2, 3 and 4 it is notnecessary to discuss Issues 6 and 7 in detail. Suffice it to say that theevidence of loss alleged to have been suffered by the plaintiff appears to meto be exaggerated. The result is that this suit, for reasons stated above, mustbe dismissed with costs including reserved costs.

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Khatun Bibi vs.Lilabati Dassi (15.03.1944 - CALHC)