1. These are Applications for leave to institute suits on the original side of this Court. The plaintiffs in the proposed suits are the applicants. The proposed suits are for recovery of money by enforcement of equitable mortgages, created by deposits of tide deeds within the jurisdiction of the original side of this Court. The prayers include sale of the immovable properties covered by such deposits of title deeds, in satisfaction of the money claims. But, all the immovable properties, covered by such deposits of title deeds, are situate outside the jurisdiction of the original side of this Court. Mainly faced with this contingency; but urging the feature that the cause of action has partially arisen within the jurisdiction of this Court, and other similar features, the plaintiffs have sought for leave to institute the suits on the original side of this Court. In Application No. 1752 of 1989, M.Srinivasan, J., who earlier dealt with it, found conflicting views; one by Moore, J. in Nalum Lakshmikantham and another v. Krishnaswamy Mudaliar and others (1904) ILR 27157) and the other by Shanmukham, J. in State Industries Promotion Corporation of Tamil Nadu Ltd. v. Arvind Distillery and Chemicals Ltd., Madras and others (AIR 1982 Madras 273); and deemed fit to refer the matter to a Bench of this Court and the said Application has been listed before the Bench. Subsequently, similar matters have also been listed before the Bench. That is how we are seized of these Applications.

2. The question that has got to be resolved depends upon the interpretation that we should put on the set of expressions suits for land or other immovable property occurring in clause 12 of the Letters Patent of this Court. As already stated, the proposed suits are for recovery of money by enforcement of equitable mortgages clause 12, as a whole, reads as follows:

12. Original jurisdiction as to suits:-

And we do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary or 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 immovable 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 ordina ry 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 again, 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 at Madras, in which the debt or damage, or value of the property used for does not exceed one hundred rupees.

Dissected and rearranged conveniently, the implications of the relevant portions of clause 12 of the Letters Patent, relating to suits for land or other immovable property, can be summed up as follows:

(i) In the case of a suit for land or other immovable property, if such land or property is situate wholly within the local limits of the ordinary original civil jurisdiction of this Court, the suit will be competent without a necessity of obtaining any leave;

(ii) if such land

wholly outside the local limits of the ordinary original civil jurisdiction of this Court, such a suit will be incompetent before this Court;

(iii) if, however, such land or property is situate only in part within the local limits of the ordinary original civil jurisdiction of this Court, the rest being outside such jurisdiction, the suit can be laid before this Court, provided leave is obtained.

Can it be stated that the suits of the present nature are suits for land or other immovable property and since all the immovable properties are outside the jurisdiction of the original side of this Court, the proposed suits are incompetent before this Court

3. There are pronouncements of this Court, which have taken the view that a suit to enforce a mortgage or a charge on immovable property or to avoid an encumbrance would be a suit for land. We do not propose to advert to the discussion of the ratio for in those pronouncements and it would suffice the purpose if we refer to them as follows:

(1) Nalum Lakshimikantham and another v. Krishnaswamy Mudaliar and others (1904) ILR 27, 157) [LQ/MadHC/1902/57] ; (Moore, J.)

(2) Sundara Bai Sahiba v. Tirumal Rao Sahib and another (1910) ILR 33 Madras 131); (Sir. R. S. Benson, OCJ and Sankaran Nair, J.)

(3) The Official Assignee of Madras v. T.C.Ramaswamy Iyengar and another (1912) 23 MLJ 726 [LQ/MadHC/1912/280] ) Bakewell, J.)

(4) Application No. 3079 of 1979, Order dated 21.9.1979

(By one of us -- Nainar Sundaram, J.)

There is case law arising out of pronouncements of other High Courts expressing views, one way or the other. But, we find that it is not necessary to advert to it, because categoric principles have come to be rendered by a Full Bench of five learned Judges of this Court itself the question and as well as by the Federal the first three of the pronouncements of this courts, referred to above, the principles subsequently set down by the Full Bench of this Court and by the Federal Court were obviously not a vailable then. In the fourth pronouncement rendered by one of us Nainar Sundaram, J., the pronouncements of the Full Bench and of the Federal Court did not appear to have been brought to the notice of the Court.

4. In Velliappa Chettiar and others v. Saha Govinda Doss and others (AIR 1929 Madras 721), a Full Bench of five learned Judges of this Court had to deal with a suit by a purchaser of land situate outside the presidency town for specific performance of a contract to sell, made in the presidency town by parties resident therein and the question, which the Full Bench was called upon to answer ran as follows:

Is a suit by a purchaser of lands situate outside Madras for specific performance of a contract to sell made in Madras by parties resident therein, a suit for land within the meaning of clause 12 of the Letters Patent, and so not cognizable by the High Court in its ordinary original civil jurisdiction.

There are discussions and expressions of views by the learned Judges, who went to constitute the Full Bench, and they uniformly opined that a suit for specific performance is a suit in personam and not in term. But, we find that the ratio to define suit for land has been succintly stated by Venkata Subbarao, J., as he then was, by observing,

However reluctant one may be to define the term suit for land, it is impossible to answer the reference, without attempting some kind of definition. I shall not discuss the point, for it has been discussed threadbare, but I shall content myself with stating that, in my opinion, a suit is not a suit for land, unless the decision in that suit primarily involves title to, or primarily affects possession of land. Applying this test, I am satisfied that the present suit is not a suit for land.

5. In Moolji Jaitha and Co. v. K.S. and W.Mills Co. (AIR (37) 1950 Federal Court 83), the facts of the case dealt with by the five learned Judges of the Federal Court ran as follows:

The defendants, who were a firm of merchants carrying on business in Bombay, were the secretaries and treasures of the plaintiff company and, as such, were in sole management of the spinning and weaving mill owned by the company at Jalgaon outside the local limits of its jurisdiction. After terminating the agency of the defendants, the company brought a suit for various reliefs founded, in general, on alleged wrongful action by the defendants in breach of their fiduciary obligation in the course of their employment. In addition to the prayer for a general account of the defendants management of the companys affairs and business during the whole period of the agency and certain other connected prayers, the company asked for two reliefs concerning certain lands at Jalgaon specified in the plaint which were alleged to have been acquired by the defendants on behalf of the company and out of the moneys or other property belonging to the company but in the name of the defendants and that the lands stood in the name of the defendants only as benamidars or trustees of the plaintiff company. The reliefs were thus described: (a) That it may be declared that the said lands belong to and are the property of the plaintiff company and that the defendants have no beneficial interest therein.(b) That the defendants may be ordered to execute all such acts as may be necessary for transferring the said lands to the name of the plaintiff company.

The views expressed by each one of the learned Judges with regard to suit for land occurring in clause 12 of the Letters Patent of the High Court of Bombay the language of which is similar to clause 12 of the Letters Patent of this Court are portent and they have been, in our view, correctly summed up in the head - note of the report itself and it will suffice the purpose if we extract them as follows:-

Per kania C.J. In order to see whether a suit is covered by the expression suit for land in clause 12 one has to consider whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different but involved the consideration of the question of title to land indirectly. Per Fazl Ali, J. (Obiter) - The expression suit for land covers the following three classes of suits (1) suits for the determination of title to land; ( 2) suits for possession of land; and (3) other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land.

Per Patanjali Sastri, J. - The words suits for land or other immovable property in clause 12 besides obviously covering claim for recovery of possession or control of land, are apt to connote also suits which primarily and substantially seek an adjudication upon title to immovable property or a determination of any right or interest therein.

Per Mahajan, J. - Where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression.

Per B.K.Mukherjea, J. - The words suit for land mean a suit for establishing title to land or any interest in the same or for possession or control thereof; and the decree sought for must be intended proprio vigore to be enforceable against and binding on the land itself.

6. As we could see from the views of the learned Judges of the Federal Court, the relevant tests to be remembered and applied to find out as to whether the suit is one for land are: (1) Whether the suit involves determination of right, title or interest in land; or (2) whether the suit involves recovery of possession or control of land. In a suit to recover money due under a mortgage, when we apply the above tests, it is not possible to say that the suit will come within the mischief of any of the above tests. There may not be a determination of title to the land as such. Equally so, there may not be straightway a decree for recovery of possession of land. Primarily the decree will be one for recovery of money. Only when there is a default, a final decree may ensue permitting recourse to the land in satisfaction of the money claim. Even then, there is no determination of title to the land and there is no decree for recovery of possession. It is only at the time of execution, a need to advert to these questions may arise, on contingencies therefor presenting themselves. Shanmukham, J. in State Industries Promotion Corporation of Tamil Nadu Ltd, v. M/S. Arvind Distillery and Chemicals Ltd., Madras and others (AIR 1982 Madras 273) adverted to the pronouncements of the Full Bench of this Court in Velliappa Chettiar and others v. Saha Govinda Doss and others (AIR 1929 Madras 721) and the pronouncement of the Federal Court in Moolji Jaitha and Co. v. K.S. and W.Mills Co. (AIR (37) 1950 Federal Court 83) and held that the suit for recovery of amount due on mortgage in respect of properties situate outside the jurisdiction of the original side of this Court cannot be classified as a suit for land. The learned Judge approached the question as follows:

In this case the suit is not for recovery of possession, nor is the question of the title to the land involved even indirectly. Indeed, till execution is levied there is need for the Court to deal with any question relating to the property, all that the Court has to decide is the amount due on the mortgage. Further even in execution, the Court is in no way concerned with the possession of the property or the title to the property.

We approve the view of Shanmukham, J. on this question. M. Srinivasan, J. in his order of reference, is of the view that the observations neither in the pronouncement of the Full Bench in Velliappa Chettiar and others v. Saha Govinda Doss and others (AIR 1929 Madras 721) nor in the pronouncement of the Federal Court in Moolji Jaihta and Co. v. K.S. and W.Mills Co. (AIR (37) 1950 Federal Court 83) can be stated to have the effect of overruling the view of Moore, J. in Nalum Lakshimikantham and another v. Krishnaswamy Mudaliar and others (1904) ILR 27 157). Our analysis of the principles and tests laid down by the Full Bench of this Court and of the Federal Court to govern the question leaves no room for doubt in our mind, that the view of Moore, J. in Nalum Lakshimikantham and another v. Krishnaswamy Mudaliar and others (1904) ILR 27 157) and the view of the other subsequent pronouncements, already referred to, which seem to have fallen in line with the thinking of Moore, J. cannot survive on this question.

7. M.Srinivasan, J. in M/s.Ram Bahadur Thakur V. (P) Ltd. v. A. Velliangiri and three others (1989 (2) LW 529) dealt with a case for specific performance relating to land situate outside Madras after the enactment of the Specific Relief Act, 1963 and construing provisions of the Specific Relief Act, 1963, the learned Judge held that in a suit for specific performance, even if there is no prayer for possession initially, the relief of possession could be obtained by the plaintiff at a subsequent stage and he cannot file a separate suit for possession and hence every suit for specific performance is also a suit for recovery of possession and in that view the learned Judge held that the suit is one for land within the meaning of clause 12 of the Letters Patent of this Court. The learned Judge also expressed the view that the basis on which the Full Bench decided in Velliappa Chettiar and others v. Saha Govinda Doss and others (AIR 1929 Madras 721) does not exist. That is a question with reference to the aspect of recovery of possession, but the principle and the ratio set down by the Full Bench to find out when a suit could be one for land, still holds good. In Bank of Madurai Limited V. M/s. Balaramadass & Brothers rep. by its partner (1984) 97 LW 485) a Bench of this Court, though was asked to go into the present question, did not do so and was content to view the matter from a different angle. Hence, that decision has not proved of any help to us.

8. As a result of our above discussion, we allow all these Applications and grant the leave prayed for.