Pranlal Tribhuwandas v. Goculdas Damodar

1. In this suit plaintiff sues as mortgagee of ??? property in Cutch belonging to the first defendant. The mortgage was made, ??? Bombay on November 20, 1923, ??? deposit of title deeds.

2. He has joined in ??? suit the second defendant on the ??? that the second defendant falsely alleges that he is now in possession as prior mortgagee of the properties and denies the plaintiff is right to a charge on the said properties. Plaintiff accordingly prays not only for a decree for the sale of the properties but also for a declaration of his charge as against the second defendant. The suit as between the plaintiff and the first defendant was decided by a consent decree taken on August 19, 1924, whereby a decree for sale was made on behalf of the plaintiff, with however this reservation as regards the second defendant, that decree was to be without prejudice to the rights of the plaintiff and the second defendant, and the suit was ad journey in order that the rights of the plaintiff and the second defendant should be determined.

3. The second defendant claims a prior charge on the properties by a mortgage of May 1923. By a prayer in the original written statement he prayed for a declaration of the enforcement of that charge, but that written statement was amended on November, 11, 1924, and by the amendment the second defendant pleaded that the Court had no jurisdiction to make a declaration of plaintiffs charge as against him and all the other pleas in his written statement were subject to that objection. The point which has now been argued before me is as to whether I have jurisdiction in this suit to make a declaration that the mortgage alleged to have been created by the first defendant is favour of the plaintiff was not subject to the prior charge by the first defendant in favour of the second defendant in May 1923.

4. Now in the suit against defendant No. 1 jurisdiction was assumed following the rule in Yeshwantrao Holkar v. Dadabhai Cursetji Ashburner(1) that the provision of clause 12 of the Letters Patent as to suits for land does not override the equitable jurisdiction assumed by English Courts in such cases. My own view, however, is that Holkar v. Dadabhai Cursetjee Ashburner is not good law and that Holkar v. Dadabhai has been in fact overruled by the Privy Council in Harendra Lal Roy Chowdhuri v. Hari Dasi Debi (2), but as the contrary has been held by two other Judges of this Court and as Holkar v. Dadabhai has been upheld and followed in a decision of the Appeal Court in Venkatrao Sethupathy v. Khimji Assur Virji(3), subsequent to the Privy Council decision, I have to treat Holkar v. Dadabhai as being still good law.

5. The question then remains whether it necessarily follows that I have jurisdiction to give plaintiff declaration that he seeks as against the second defendant, I think not. Such a declaration is not within the equitable jurisdiction that is assumed in English Courts in such cases, and which was the basis of the decision in Holkar v. Dadabliai. That eqitable jurisdiction was explained in Norris v. Chambres(4) and its limits stated in Des-champs v. Miller(5). That equitable jurisdiction has also been very well summarised by Sir Lawrence Jenkins in Vaghoji v. Camaji(6). The learned Judge there says (p. 256):—

“An examination of the authorities appears to me to establish the proposition that a Court of Equity in England only assumed jurisdiction in relation to land abroad, where as between the litigants or their predecessors some privity or relation was established on the ground of contract, trust or fraud, but in no case of which I am aware has the Court of Equity entertained a suit, even if the defendant was within the limits of its jurisdiction, where the purpose was to obtain a declaration of title to foreign land.”

6. It seems to me clear that there is no such privity between the plaintiff and second defendant and that Vaghoji v. Gamaji is an express decision of this Court that I have no jurisdiction to give a declaration that has been asked for. Also in Norris v. Chambres the Court refused to declare a lien on foreign land.

7. Then the Advocate General contends that the charge which defendant No. 2 has, was created in Bombay. But that is a consideration which seems to me irrelevant. It would only be material if the suit were between the first and second defendants.

8. A reference has also been made to Order 24, rule 1, and it is said that plain-tiff could not have filed this suit without making—as require by that rule—every person interested in the mortgage, party to the suit. But that rule is a rule of procedure and not a rule that can be invoked in order to extend jurisdiction. The object of the rule is that the rights of all parties interested in the mortgage should be determined in one suit and a multiplicity of suits avoided. That cannot apply where the Court has no jurisdiction to adjudicate on the rights. It is true that in the case of Sorabji v. Rattonji(7), where a foreclosure suit was brought by the mortgagee in respect of land outside the original Civil jurisdiction of this Court, an order was made to join as a party the prior mortgagee Jivraj Ludha, but it does not appear from the judgment in that case that the point of jurisdiction was taken or that there was any conflict in that case between Jivraj Ludha the prior mortgagee and the puisne mortgagee who brought the foreclosure suit, or that a declaration against Jivraj Ludha was sought.

9. The Advocate General also refers to a dictum in Venkatrao Sethupathi v. Khimji Assur Virji stated above by Scott, C.J to the effect that a suit in which a mortgagee seeks to have land sold is not a suit for land. I find it difficult to understand this dictum. An interest in land is a land and a suit in which an interest in land is realised must be a suit for land.

10. Again it is contended that if there is jurisdiction as in Holkar v. Dadabhai against the first defendant, it stands to reason that there must be jurisdiction against the second defendant who derives his interest from him. But a mortgage-not in the English form does not even create privity of estate [see Thethalan v. The Eralpad Rajah, Calicut(8)] but it is not privity of estate that equity is concerned with but privity of contract or notice. There can be and is no such privity between the I plaintiff and the second defendant.

11. It is true that the effect of my decision will lead to an anomaly, for whereas according to Holkar v. Dadabhai each of the mortgagees may file a suit against the mortgagor and have their rights as between each of them and the mortgagor determined in a suit in this Court, while the respective interests of the mortgagees inter se cannot be so determined. This, however, is the necessary effect of the judgment in Holkar v. Dadabhai and until that judgment is reversed by the decision of a Full Bench, that anomaly must persist. I, therefore, decide the issue No. 1 in the negative.

12. The suit is accordingly dismissed with costs as against the second defendant.

13. Suit dismissed.