The Judgment of the Court was as follows:—

Das, J.:— This is a purchaser's suit arising out of an agreement for sale of certain lands known and numbered as premises No. 6, Ahiripukur, 1st Lane situate outside the local limits of the Ordinary Original Civil Jurisdiction of this Court.

2. The lands in question originally belonged to Kartik Lal Jamadar and Budhia Jamadarni. They mortgaged the lands to the Defendant's husband, Tincouri Singa. In 1928, Serajul Huq (the husband of the Plaintiff) and his three brothers purchased the lands from the original owners, subject to the mortgage in favour of Tincouri. In 1932, Tincouri, the mortgagee filed a suit on that mortgage against the mortgagors and their assignees, the Huqs. After various proceedings the lands were sold in execution of the decree passed in that mortgage suit in 1934 and Tincouri himself purchased the same and obtained possession thereof. In 1936, Tincouri transferred the lands to his wife, the Defendant, by a deed of gift.

3. On February 25th, 1940, the Defendant entered into an agreement in writing with the Plaintiff for the sale of the lands to the Plaintiff. This agreement was made in Calcutta and was executed at the respective places of residence of the Plaintiff and the Defendant in-Calcutta within the jurisdiction of this Court.’, The present suit is founded on this agreement which has been marked as Ex. C in this suit.

4. By this agreement the Defendant agreed to sell and the Plaintiff agreed to purchase all the lands included in the premises No. 6, Ahiri pukur, 1st Lane within P.S Ballygunge, measuring more or less 12 cottahs with all the appurtenances, rights and privileges belonging thereto which, excepting the southern limit existed on March 14th, 1934, when the vendor's husband 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. 25O as and by way of earnest money at the time of the execution of this agreement, Rs. 600 at least two days before the execution of the sale deed for clearing up the arrears of Corporation taxes up to 31st March, 1940, and the balance of Rs. 4,150 and also 2|3rd of the total amount of the arrears of rents (amounting to Rs. 207) due from the three tenants up to 31st March, 1940, at the time of the execution of the sale deed. Cls. 2, 3, 5, 6 and 7 of the agreement are important. At the end of the agreement there is a statement as follows:

“Be it mentioned here that the passage between the premises No. 6 and the premises No. 6 Ahiripnkur 1st Lane is disputed,”

5. On the date of the execution of this agreement the Plaintiff paid Rs. 250 as and by way of earnest money and the fact of such payment appears endorsed on the agreement. On the same date copies of two documents, namely the deed of gift between Tincouri and the Defendant and the sale certificate obtained by Tincouri evidencing his purchase of the lands at the Court sale were handed over to one Sailendra Nath Basak who acted as the pleader for the Plaintiff.

6. On April 20th, 1940, which was the date fixed for completion of the purchase the Plaintiff's pleader addressed a letter to the Defendant in which after referring to the agreement and the delivery of the copies of two documents it was alleged that it had been found that there was a wide discrepancy in the description of the southern boundary and it was stated that unless the discrepancies were explained to the satisfaction of the Plaintiff she could not reasonably be expected to complete the transaction. The letter concluded with a request that steps be taken by the Defendant for explaining the discrepancies and with an intimation that on that being done the Plaintiff would do the needful in the matter at once. No reply appears tip have been given by the Defendant to this letter.

7. On May 1st, 1940, the Plaintiff's pleader wrote a letter to the Defendant enclosing a draft conveyance for her approval. The Defendant's husband received this letter with en-closure and granted a receipt (Ex. D). There is dispute as to where and by whom this letter and the draft conveyance were delivered to the Defendant's husband.

8. On May 7th, 1940, the Defendant's husband (wrote back to the Plaintiff's pleader stating that the earnest money had been forfeited under the forfeiture clause in the agreement on account of her failure to complete the transaction within April 20th, 1940, and enquiring why on May 1st, 1940, a draft was sent along with a letter.

9. This letter was replied to by the Plaintiff's pleader on May 16th, 1940. It was stated that on being unable to account for the discrepancies regarding the southern boundary he had written to the Defendant on April 20th, 1940, requesting her to explain the discrepancies as the Plaintiff intended to complete the transaction as soon as she got satisfactory explanation and that thereafter the Plaintiff's representative saw the Defendant's husband who satisfied the former about the discrepancies and that thereafter the Plaintiff sent the draft conveyance on May 1st, 1940, intending to complete the transaction and it had been received without any objection. The purported forfeiture of the earnest money was characterised as an after thought. The letter insisted on the agreement being subsisting arid Plaintiff being ready and willing to have the conveyance on payment of the balance of the purchase money and concluded with a request for the return of the draft conveyance after approval so that the transaction might be completed in no time.

10. At this stage the Defendant appears to have gone to a pleader and through him she replied to the last letter on May 20th, 1940. In this reply it was stated that the Plaintiff having failed to pay Rs. 600 two days prior to April 20th, 1940, or to complete the transaction by that date the agreement automatically came to an end and the earnest money had been forfeited. The Plaintiff's pleader's letter of April 20th, 1940 was characterised as a dodge. The copies of documents had been made over on the date of the agreement and the alleged discrepancies had been explained long before the agreement had been entered into and indeed the discrepancies are noted in the agreement itself and were well known to the Plaintiff and her husband. A letter with the draft conveyance had been sent on May 1st, 1940, apparently as another dodge. That was replied to on May 7th, 1940, and the story of interview and explanation of discrepancies was false. Without prejudice, however, the Defendant was prepared to reconsider the matter should the Plaintiff undertake to complete the transaction by May 27th, 1940, and give such undertaking in writing within 24 hours after receipt of this letter, time being of the essence of this offer.

11. On May 23rd, 1940, the Plaintiff's pleader wrote to say that April 20th, 1940, had been fixed as a provisional date for completion and the draft conveyance had been sent in advance for expediting matters. It was complained that copies of only two documents had been given and not of the rest and called upon the Defendant to send over copies of all other documents so as to enable the Plaintiff to investigate into the Defendant's title. It ended with re-iterating readiness and willingness on the part of the Plaintiff to complete the transaction as soon as possible.

12. The Defendant's pleader sent the final reply on May 30th, 1940, denying that April 20th, 1940, was fixed as a provisional date and asserting that the Plaintiff had not been ready to do her part and that the agreement automatically came to an end on April 20th, 1940, and declining to do anything more after the Plaintiff had failed to take advantage of the chance offered by the Defendant's pleader's letter of May 20th, 1940.

13. It appears that on November 6th, 1940, the Defendant sold the lands to another party named Mahbub Mistry at and for Rs. 5,000 of which the purchaser retained Rs. 1,000 for three years.

14. The present suit was filed on December 20th, 1940. After pleading the agreement in suit the Plaintiff in paragraph 2 of the plaint sets up an agreement for extension of time for delivery of the title deeds by the vendors and payment of the balance of the purchase money by the purchaser till the end of September, 1940, by mutual consent. In the particulars furnished by the Plaintiff's solicitor this extension of time is said to have been agreed upon on May 1st, 1940, i.e, the date when the draft conveyance had been delivered along with a letter. After reciting the Plaintiff's readiness and willingness the plaint formulates the Plaintiff's claim in paragraph 5 in the following terms:

“5. The Plaintiff claims that either this Hon'ble Court will order the Defendant specifically to perform the Agreement and to do all acts necessary to pat the Plaintiff in fall possession of the said property and to pay the coats of this suit or in the alternative to P. direct the Defendant to pay to the Plaintiff damages to such extent as to this Hon'ble Court may seem fit and proper and coats of this suit.”

15. Then follow the prayers:

“The Plaintiff claims:

(a) decree for specific performance and/or

(b) damages to each extent as to this Hon'ble Court may seem fit and proper and

(c) injunction and costs.”

16. In the written statement the Defendant denies that this Court has any jurisdiction to entertain this suit or that there was any extension of time or that the Plaintiff performed her part of the agreement or was ready or willing to do so. It avers that as the Plaintiff's husband along with his three brothers were formerly owners of this property they had copies of all old title deeds and did not want them and that is why only copies of the two subsequent documents had been taken by them. The Defendant states that the Plaintiff having failed to perform her part of the agreement, the Defendant on or about November 6th, 1940, sold the premises to one Mahbub Mistry of No. 4, Cantoter Lane for Rs. 5,000 and the Plaintiff had full knowledge of that sale and that in the circumstances the suit as framed is not maintainable.

17. After Mr. Sircar opened the case for the Plaintiff Mr. Mullick appearing for the Defendant submitted that on the plaint as framed the Plaintiff 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 actual specific performance by execution of a deed of transfer of the property in favour of the Plaintiff. Mr. Mullick, however, conceded that on the plaint as it is, it is open to the Plaintiff, in the circumstances that have j happened, to claim compensation in lieu of specific performance under sec. 19 of the Specific | Relief Act. Mr. Sircar stated that he would | not claim damages as on a breach of contract and did not desire to amend the plaint. He stated that he would be content with compensation in lieu of specific performance under sec. 19 of the Specific Relief Act. Mr. Sircar conceded that if a purchaser's suit for specific performance of an agreement for sale of land outside Calcutta is not maintainable in this Court this suit, although the Plaintiff is now claiming compensation, 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 for a specific performance of an agreement for sale of land situate outside, the Ordinary Original Civil Jurisdiction and the legal position was exactly the same as if the lands were yet available to be transferred to the Plaintiff. In other words, it was agreed on both sides that the suit is still a suit for specific performance but that the land having been sold away the decree will award compensation as specific relief on the footing that the agreement is subsisting and not damages as for breach of the agreement. On this footing the following issues were settled:

Issues:

1. Has the Court jurisdiction to entertain this suit?

2. Having regard to clauae 5 of the agreement, is this suit maintainable?

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

4. Was the Plaintiff ready and willing to perform the contract at the due date and at all times thereafter?

5. Did the Defendant sell the premises in suit to Mahbub Mistry? If so, did the said sale take place with the Plaintiff's knowledge?

6. Is the Plaintiff entitled to compensation? If??? for what amount?

7. To what relief, if any, is the Plaintiff entitled?

18. I have had the pleasure of listening to the very interesting, able and learned arguments addressed to me from both sides on issue No. 1 which raises the vexed question whether a purchaser's suit for specific performance of an agreement for sale of land is a “suit for land” within the meaning of cl. 12 of the Letters Patent. This question was, until recently, tacitly regarded as settled, so far as this Court was concerned.; In 1937 the question was raised in the case of All India Sugar Mills, Ltd. v. Sardar Sundar Singh . I.L.R [1937] 2 Cal. 644. and was answered by Ameer Ali, J., in the affirmative. In 1943, the question was canvassed over again in Suit No. 822 of 1940 [Probodh Kumar Das v. The Dantmara Tea Co., Ltd. . Suit No. 822 of 1940.] before Gentle, J., and his Lordship after reviewing the earlier decisions answered the question in the negative. There are thus two conflicting decisions of recent times on this important point each of which is entitled to great respect and careful consideration. Understanding that the last-mentioned decision had been appealed from, I suggested that I should postpone delivering my judgment in the case now before me until after the point had been authoritatively 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 was consider-, able uncertainty as to whether the Plaintiff-Appellant, who had won on the preliminary point but had lost on merits, would proceed with that appeal and he pressed me to dispose of this suit. I have, therefore, no other alternative but to (deliver my judgment, although I would have much preferred to await the decision of the Court on appeal. Since I have to give my decision, it is necessary that I should not shirk the responsibility of stating my reasons in support thereof.

19. The expression “suit for land” has given infinite trouble to Judges who have had to construe it to arrive at its true meaning and import. A perusal of the cases reported in the Law Reports will at once disclose a singular Jack of uniformity of decisions. Indeed the reader's mind is bound to be “overpowered by their multitude and the subtlety of the distinctions between them.” I shall, therefore, not take upon myself what I consider to be an impossible task of attempting to reconcile the numerous divergent and conflicting decisions and deduce any common principle therefrom. I propose, therefore, to examine the expression on broad and general principles of interpretation and only to deal with the reported cases relating to suits for specific performance. I am conscious that in doing so, I may be adding to the confusion that has already arisen, by reason of the conflicting decisions of this and other High Courts, as regards the true meaning and import of that expression but I see no help for it. Some day in the near future the matter may, I hope, be clarified and set at rest by the legislature or at any rate, so far as this High Court is concerned, by an authoritative decision of a Full Bench of this High Court.

20. It will appear from the numerous reported decisions that the expression “suit for land” has been construed by different Judges to have different meanings. Broadly speaking, three different meanings have been put upon 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 in the pleadings, the decree or order will affect directly the proprietory or possessory title to land, i.e, a suit in which the substantial question is the right to land; and

(c) a suit relating to or concerning land.

21. It will be noticed that the first is the narrowest and the last is the widest meaning and in between the two there is the second meaning which to some extent narrows down the wider meaning by the addition of some qualifying adverb like “directly” or “substantially” or “primarily.” Different learned Judges have arrived at one or other of these meanings by adopting different processes of reasoning. Some have adopted the method of simple interpretation which has now been laid down and emphasised in Bank of England v. Vagliano Brothers . L.R [1891] A.C 107. as a cardinal rule of interpretation, namely the rule of putting the ordinary natural meaning on ordinary English words, uninfluenced by any considerations derived from the previous state of the law. By adopting this method they have arrived at the meaning (a) by laying emphasis on the preposition “for.” The latest examples of this method are to be found in the judgment of Sanderson, C. J., in Nagendra Nath Chowdhury v. Eraligool Company, Ltd. . I.L.R 49 Cal. 670 and the judgment of Blackwell, J., in the Bombay Full Bench case of Hatimbhai Hassanally v. Framroz Eduljee . I.L.R 51 Bom. 516 1927.. Some learned Judges have followed the doctrines of English equity on the hypothesis that the Letters Patent establishing the High Courts in India have incorporated those doctrines and have construed the expression “suit for land” in the light of those doctrines. Their reasonings have been two-fold: Courts of Equity in England entertain certain suits “concerning” land outside the jurisdiction if the Defendant is resident within jurisdiction. The High Court has all the powers of the Courts of Equity and can act in personam and therefore can entertain those suits and therefore those suits are not “suits for land.” Conversely Courts of Equity do not entertain certain suits concerning foreign land even if the Defendant is within jurisdiction and therefore the High Court also cannot entertain those suits and therefore those suits are “suits for land.” Applying these reasonings they have arrived at meaning (b). As examples of this method of construction I may refer to the cases of Holkar v. Dadabhai Cursetji Ashburner . I.L.R 14 Bom. 353 1890. and Goculdas v. Chagulal . I.L.R 54 Cal. 655 1927. and the cases of this High Court and the Rangoon High Court following the case of Goculdas v. Chagulal. Lastly, some learned Judges have: adopted what may be called the historical method and delving deep into the past history of the law evidenced by repeated enactments and other statutes in pari materia, reports of Law Commissioners, despatch from the Secretary of State and text-books of eminent writers have, on the hypothesis that the intention of the authorities was to bring about uniformity of the jurisdiction of the different Courts, arrived at meaning (c). Examples of this method of construction are to be found in Nalum v. Krishnasawmy . I.L.R 27 Mad. 157 1903., Sudamdih Coal Co., Ltd. v. Empire Coal Co., Ltd. . I.L.R 42 Cal. 942 1915. and in the dissentient judgment of Fawcett, J., in the Bombay Full Bench case of Hatimbhai Hassanally v. Framroz Eduljee. This method have led the learned Judges adopting it to construe “suit for land in cl. 12 not only in the light of the same expression in sec. 5 of the Code of 1859 and the territorial restrictions on jurisdiction of the Mofussil Courts perpetuated thereby but also to read into cl. 12 the provisions of sec. 16 of the later codes of 1877, 1882 and 1908 which amended that section, on the hypothesis that the latter section only illustrated what was meant by the expression “suit for land.” I have to decide for myself which of these three methods and meanings I should adopt

22. In order to appreciate the methods of construction adopted by those learned Judges who arrived at meanings (b) and (c) and to ascertain their merit and, if I may add, their difficiencies, one has necessarily to undertake a close study of the Statutes and Charters establishing the High Courts in India, and the Regulations prescribing the jurisdiction 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 186s all take us back to the earlier statutes and charters under which the Mayor's Court and subsequently the Supreme Court were constituted. It is well established that, subject to the provisions of the present Letters Patent, this High Court has inherited the jurisdiction of the Supreme Court of Calcutta. It is, therefore, necessary to consider the question of jurisdiction of this High Court in the light of the earlier statutes and charters. In dealing witty those statutes and charters I shall confine myself only to those provisions thereof which have a bearing on the Original Civil Jurisdiction of the particular Court constituted there under.

23. The ancient statutes and charters will be found referred to and discussed elaborately iri the judgment of Westrop, J., in the case of Nowraji Beramji v. Henry Rogers . 4 Bom.???. C.R O.C.J 1 1867.. For my present purpose, however, it will be enough to start with the Letters Patent of 1726 granted by King George I to the United Company of Merchants of England trading to the East Indies. These Letters Patent established and constituted three several Courts of record, by the name of Mayor's Court at Madras, Bombay and Fort William in Bengal. The Mayor's Court of Calcutta was authorised to try, hear and determine all civil suits, actions and pleas between party and party that should or might arise or happen or that had already arisen or happened within the said town or factory of Calcutta at Fort William in Bengal or within any of the factories subject or subordinate thereunto. Its jurisdiction could be invoked upon complaint to be made in writing by or on behalf of any person or persons against any other person or persons whatsoever then residing or being or who, at the time when such cause of action did or should accrue, did or should reside or be within the said town of Calcutta at Fort William in Bengal or the precincts, districts or territories thereof. It was to give sentence or judgment according to justice and right. The Governor or President and Council were empowered to make constitute and ordain Bye-laws, Rules or Ordinances for the good Government and regulation of the Corporation and of the inhabitants of the factories aforesaid, agreeable to reason and not contrary to the laws and statutes of England.

24. It will be noticed that the civil jurisdiction of the Mayor's Court of Calcutta was dependent upon the residence of the Defendant as well as the accrual of the cause of action within the town or factory of Calcutta, at Fort William in Bengal or within any ‘of the factories subject or subordinate thereunto. It was not necessary that the Defendant must reside or the cause of action must accrue within the town of Calcutta. There was no distinction between causes of action relating to land and other causes of action. The laws to be administered by the Mayor's Court were the bye-laws and ordinances and rules of justice and right.

25. These Letters Patent of 1726 were surrendered by the East India Company to King George II and the Company obtained fresh Letters Patent in 1753. No substantial change in the jurisdiction and powers of the Mayor's Court was made by the Letters Patent of 1753.

26. Then came what is commonly known as the Regulating Act of 1773 (Statute 13 Geo. III C. 63) which empowered His Majesty by Charter to erect and establish a Supreme Court ‘sat Fort William with full power and authority to exercise and perform all civil, criminal, admiralty and ecclesiastical jurisdiction. Secs. 14 and 16 of this Act were in the following terms:

“14. Provided, nevertheless, and be it further enacted by the authority aforesaid, that the said new Charter which His Majesty is hereinbefore empowered to grant, and the jurisdiction, powers and authorities to be hereby established shall and may extend to all British subjects who shall reside in the Kingdoms or provinces of Bengal, Behar and Orissa, or any of them under the protection of the said United Company: and the same Charter shall be competent and effectual and the Supreme Court of Judicature therein and thereby to be established shall have fall power and authority to hear and determine all complaints against any of His Majesty's subjects for any crimes, misdemeanours or oppressions committed or to be committed and also to entertain, hear and determine any suits or actions whatsoever, against any of His Majesty's subjerts in Bengal, Behar and Orissa, and any suit, action or complaint, against any person who shall at the time when; such debt or cause of action or complaint, shall have arisen, have been employed by, or shall then have been, directly or indirectly, in the service of the said United Company, or any of His Majesty's subjects.”

“16. Provided also, and be it enacted, that the said Supreme Court shall hear and determine any suits or actions whatsoever, of any of His Majesty's subjects against any inhabitant of India, residing in any of the Said Kingdoms or Provinces of Bengal, Behar and Orissa, or any of them, upon any contract or agreement, in writing, entered into by any of the said inhabitants with any of His Majesty's said subjects, where the cause of action shall exceed the sum of five hundred current [rupees, and where the said inhabitant shall have agreed in the said contract, that, in case of dispute, the matter shall be heard and determined in the said Supreme Court; and all such suits or actions may be brought, in the first instance, before the said Court, or by appeal from the sentence of any of the courts established in the said provinces or any of them.”

27. Sec, 36 of the Act empowered the Governor-General and Council to make, subject to certain conditions, such rules, ordinances and regulations for the good order and civil government of the company's settlement at Fort William and other factories and places subordinate or to be subordinate thereto as should be deemed just and reasonable and not repugnant to the laws of the realm.

28. Pursuant to the Regulating Act of 1773, King George III issued the Charter dated March 26th, 1774, establishing a Court of record, called the Supreme Court of Judicature at Fort William in Bengal. For our present purpose, reference may only be made to cls. 13, 14, 15, 16 and 18 of this Charter. 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 of what nature or kind soever;

(iii) any rights, titles, claims or demands of, in or to any houses, lands or other things, real or personal, in the several provinces or districts called Bengal, Behar and Orissa or touching the possession or any interest or lien in or upon the same,

(b) All pleas, real, personal or mixed, the causes of which should or might hereafter arise, accrue or grow against—

(i) The United Company;

(ii) The Mayor and Aldermen of Calcutta;

(iii) Any other of “our subjects” who should be resident within the said provinces, districts or countries called Bengal, Behar and 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 “our subjects.”

(v) Any other person who should, at the time of such action being brought or at the time when any such action should have accrued, be or have been employed by the United Company, the Mayor and Aldermen or of any other of “our subjects.”

(vi) Other inhabitants of India residing in the said provinces, districts or countries of Bengal, Behar and Orissa upon any contract in writing entered into by them with any of His Majesty's subjects, where the cause of action should exceed Rs. 5OO and when such inhabitant should have agreed in the said contract that, in case of dispute, the matter should be determined in the said Supreme Court.

29. Cl. 14 empowered the Supreme Court of Calcutta to give judgment and sentence according to justice and right. Cls. 15 and 16 dealt with execution and the powers of the Sheriff. Under cl. 18 the Supreme Court was also constituted a Court of Equity with full power and authority to administer justice in a summary manner, as nearly as may, according to the rules and proceedings of the High Court of Chancery in Great Britain.

30. It will be noticed that the conditions of civil jurisdiction 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 civil jurisdiction was confined mainly to “our subjects” or those who were employed by “our subjects” or those who entered into written contracts with “our subjects.” It is well known that at that time the expression “our subjects,” i.e, “British subjects” meant and included only British-born subjects of the King and this restriction of jurisdiction to British subjects was due to a policy of avoiding conflict with the formal over-lordship of the Moghul Emperor as will appear from the case of The Raja of Vizianagram v. The Secretary of State for India . I.L.R [1937] Mad. 383. which was referred to in In the matter of Ratanji Ramaji12.

(ii) that in suits “concerning” any right to any property, real or personal, the property must be situate within the provinces of Bengal, Behar and Orissa. This civil jurisdiction in respect of suits “concerning” land was not confined to the town of Calcutta but extended to the provinces of Bengal, Behar and Orissa. So much for the civil jurisdiction to try and hear suits and actions. If the above conditions were fulfilled in any particular case, the case fell within the civil jurisdiction of the Supreme Court. Once a suit or action was properly filed in the’ Supreme Court, the question as to what law the Supreme Court had to administer in the exercise of this jurisdiction was answer ed by the provisions of cl. 14 and cl. 18, namely, the rules of justice and right and the rules of English Equity. This was of course subject to the rules ordinances and regulations made by the Governor-General and Council under sect 36 of the Regulating Act of 1773. One should carefully note that the Regulating Act and the Charter issued thereunder dealt with the two matters, jurisdiction and laws to be administered, separately. It will be found hereafter that this method of separate treatment of the two matters has been perpetuated in subsequent statutes and charters. This separate treatment of jurisdiction and laws to be administered in the exercise of jurisdiction has, in my humble opinion, been overlooked by learned Judges who have adopted the method of construction on equitable principles.

31. In passing, reference may be made to the Act of Settlement, 1781 (Stat. 21 Geo. III C 70). This Act took away the jurisdiction of the Supreme Court in any matter concerning revenue and provided that no person should be subject to the jurisdiction of the Supreme Court on account of his being a land-holder or farmer of land or of receipt of any pension, compensation or share of profit or for being employed by the company or any native of Great Britain. Sec. 17 of this Act was in following terms:

“17. Provided always, and be it enacted that the Supreme Court of Judicature at Fort William in Bengal, shall have full power and authority to hear and detor mine, in such, manner as is provided for that purpose in the said Charter or Letters Patent, all and all manner of actions and suits against all and singular, the inhabitants of the said City of Calcutta; provided that their inheritance and succession to lands, rents and goods) and all matters of contract and dealing between party and party, shall be determined, in the case of Mahome-dans, by the laws and usages of Mahomedans and in the 1 case of Gentoos, by the laws and usages of Gentoos: and where only one of the parties shall be a Mahomedans or Gentoo, by the laws and usages of the Defendant”

32. Thus the personal laws of the Gentoos and Mahomedans were added to the laws to be administered by the Supreme Court in certain specified matters and all inhabitants of the city of Calcutta became amenable to the jurisdiction of the Supreme Court. It will thus be seen that from this time the Original Civil Jurisdiction of the Supreme Court was dependent only on the residence of the Defendant within the city of Calcutta and there was no limitation that in suits “concerning” land the land must be situate in the city of Calcutta. The Supreme Court was therefore empowered to entertain any suit “concerning” land provided the land was situate in the provinces of Bengal, Behar and Orissa and the Defendant resided in the city of Calcutta.

33. It will be convenient here to very briefly refer to the jurisdiction of the Zillah Courts established by the East India Company and the laws to be administered by those Courts. Under sec. 7 of the Bengal Regulation III of 1793, all natives and other persons not British subjects were amenable to the Zillah and City Courts. Under sec. 8 of that Regulation the Zillah and City Courts were empowered to take cognisance of all suits and complaints respecting the succession or right to real or personal property, land-rents, revenues, debts, accounts, contracts, partnerships, marriage, caste, claim to damages for injuries and generally all suits and com-plaints of a civil nature in which the Defendant (was a native or other person not a British subject, provided the land to which the suit related was situated and in all other cases the cause of action arose or the Defendant at the time of the commencement of the suit resided within the limits of the Court. As regards the laws to be administered by those Courts, reference may be made to Regulations IV of 1793, III of 1803 and VII of 1832 and finally to the Bengal, Agra and Assam Civil Courts Acts of, 1887. There were similar Regulations in force in Bombay and Madras.

34. From what has been stated above it will be noticed that the jurisdiction of the Zillah Courts and City Courts in suits “respecting” or “relating to” land was strictly restricted to lands situate within their local limits,’ but the jurisdiction of the Supreme Court extended to lands throughout the provinces of Bengal, Behar and Orissa provided the Defendant was an inhabitant of the City of Calcutta. This distinction has, in my humble opinion, been overlooked by the learned Judges who have adopted the historical method of construction. This distinctive feature of the jurisdiction of the Supreme Court is clearly stated and emphasised in the judgment of Peel, C. J.: in. Musleah v. Musleah . [1844] 1 Fulton's Report 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 this presidency, one of those Courts, has jurisdiction to try causes relating to lands within the three provinces of Bengal, Behar and Orissa. Its process goes against them directly. An ejestment lies for them, They are sequestered under its decrees, partitioned, redeemed, foreclosed on mortgage suits, receivers appointed for them, in short, there is no power which the Court can exercise over lands in Calcutta, which it cannot exercise over lands within the’ three provinces before-mentioned. The local boundaries of Calcutta circumscribe its jurisdiction over persons, not over things, The laws by which it is to decide are prescribed. It has no discretionary power, is not a Court of conscience, and must decide by these laws alone which are ordained for it. The general law of the Court is the English law. The exceptions are statutory, and the introductions of those very exceptions prove the general rule. The Courts of the East India Company are concurrent, and not exclusive Courts. Their course is prescribed by regulations. Their constituent authority is the East India Company, ours the Crown. Each must proceed in the course prescribed.”

35. In 1858 the Crown assumed direct control over British India under Statute 21 and 22 Vic. C. 106 and the Crown became the paramount power both in theory and in fact.

36. In 1859 was passed the Code of Civil Procedure. Sec. 5 of that Code provided as follows:—

“5. Subject to such pecuniary or other limitations as are or shall be prescribed by any law for the time being in force, the civil courts of each grade shall receive, try and determine all suits hereby declared cognisable by those courts, if, in the case of suits for land or other immovable property, such land or property shall be situate within the limits to which their respective jurisdictions may extend and in all other cases if the cause of action shall have arisen, or the Defendant at the time, of the commencement of the suit shall dwell, or personally work for gain, within such limits.”

37. If this section is compared to sec. 8 of the Bengal Regulation III of 1793, it will be, found that whereas in the latter section the subject matter of different suits were separately enumerated as suits or complaints “respecting” the succession or right to real or personal property, land-rents, revenues, debts, etc. and contained a proviso that the lands to which the suit “relates” must be situate within the local limits of the jurisdiction of the Court, in the Code of 1859 there was no detailed enumeration of categories of suits and the suits were divided into two classes, namely, “suit for land” and “all other cases.” As regards “suit for land” the condition imposed was that such land should 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 the jurisdiction of the Mofussil Courts, for under the Bengal Regulation to which I have referred suits “respecting” or “relating to” land could be entertained by a Court only if the land was situate within its territorial limits. The only question under the Code of 1859 was whether any change had been brought about by the use of the expression “suit for land” in place of the expression suit “respecting” or “relating to” land. If the ordinary and natural meaning were given to the words “suit for land” so as to include only a suit for obtaining land or for recovery of land, then it would follow that a suit “respecting” or “relating to” land which was not a “suit for land” would fall within the category of “all other cases” and the Court would have jurisdiction to entertain the same although the land was outside its local limits, provided the cause of action arose or the Defendant dwelt etc., within its jurisdiction. This interpretation would give a wider jurisdiction to the Mofussil Courts than it possessed under the Bengal Regulation. On the other hand, if a wider interpretation were given to the expression “suit for land” so as to include any suit “respecting” or “relating to” land, then the jurisdiction of the Mofussil Court would remain as it was before. This was the problem which confronted the Judges who had to construe “suit for land” in sec. 5 of the Code of 1859. This aspect of the matter should always be borne in mind.

38. The Indian High Courts Act, 1861 (24 and 25 Vic. C. 104) authorised His Majesty to erect and establish High Courts of Judicature at Calcutta, Madras and Bombay arid provided for the abolition of the Supreme Court and the Court of Sudder Dewany Adawlut’ and Sudder Nizamut Adawlut in each of the Presidencies. Sec. 9 of this Act provdied as follows:—

“9. Each of the High Courts to be established under this Act shall have and exereise 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 of justice in the Presidency for which it is established, as Her Majesty may by such Letters Patent as aforesaid grant and direct, subject, however, to such directions and limitations as to the exercise of original civil and criminal jurisdiction beyond the limits of the Presidency towns as may be prescribed thereby; and, save as by such Letters Patent may be otherwise directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the courts in, the same Presidency abolished under this Act at the time of the abolition of such last-mentioned Courts.”

39. Sec. 10 preserved all existing provisions then in force in India of Acts of Parliament, Orders in Council, Charters or of any Act of the legislature of India which were applicable to the Supreme Court.

40. This High Court was established by the Letters Patent dated May 14th, 1862. Cls. 11 to 17 dealt with the civil jurisdiction of this Court 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 is now in force. It will be noticed that by these Letters Patent the two topics—j-jurisdiction and law to be administered—-were kept separate and dealt with by two groups of clauses. The cls. 11 and 12 confer Original Civil Jurisdiction and once you determine that this Court has jurisdiction, under those clauses,: to entertain a particular proceeding then and’ only then you can turn to cls. 18 to 20 of the Letters Patent of 1862 which correspond to cls 19 to 21 of the present Letters Patent to ascertain the law to be applied to those proceedings. In my humble opinion it is not permissible to cut down or enlarge the jurisdiction conferred on this Court by cls. 11 and 12 by a reference to the provisions of the last-mentioned clauses. Cl. 11 defines the local limits of the Ordinary Original Civil Jurisdiction of this Court. Cl 12 ordains that in the exercise of its Ordinary Original Civil Jurisdiction this Court shall foe empowered to receive, try and determine suits of every description subject to certain important qualifications. The ambit and scope of the Ordinary Original Civil Jurisdiction of this Court must therefore be confined within the four corners of these two clauses. If these] clauses cover any proceeding, then you can, apply all the laws mentioned in cl. 19, i.e, the same law and equity as used to be administered by the Supreme Court; but you cannot, by invoking any principle of law or equity, abridge or enlarge the jurisdiction conferred on this Court by cls. 11 and 12 and exclude or include suits or proceedings which were included or excluded as the case may be, by those clauses. I respectfully agree with the observation of Martin, C.J and Fawcett and Blackwell, JJ., on this point in the Bombay Full Bench case to which I have already referred. I humbly maintain that the failure to observe this distinction is one of the main defects, if I may say so respectfully, of the method of construction based on equitable principles.

41. We have seen that in the Charter issued under the Regulating Act, the expression used was “concerning” land and we have noted that by the combined operation of the Regulating Acts., the Charter issued thereunder and the Act of Settlement, the local boundaries of the town of Calcutta circumscribed the jurisdiction of the Supreme Court over persons and not over lands or things. The Supreme Court had jurisdiction to entertain any suit “concerning” land outside the town of Calcutta provided it was within the province of Bengal, Behar and Orissa and provided the Defendant resided 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., in his judgment in Musleah v. Musleah to which I have referred. We have then seen that the Indian High Courts Act of 1861 by sec. 9 empowered and authorised the High Court, subject to the provisions of the Letters Patent to be issued thereunder, to exercise all jurisdiction and every power and authority whatsoever in any manner vested in the Supreme Court. Then we find the expression “suit for land” in cl. 12 of the Letters Patent of 1862 and those of 1865. For my present purpose the alterations introduced in cl. 12 of the Letters Patent in 1865 are not material. I shall only apply myself to the question as to what is the meaning of the expression “suit for land” in cl. 12. If I give the ordinary and natural and therefore the narrow meaning to this words “suit for land” so as to mean only a suit for obtaining land or for recovery of land, then the Original Civil Jurisdiction of this, Court in a suit “concerning” land which is not a “suit for land,” as understood, remains as before, whereas if I give a wider meaning to the words so as to include all suits “concerning” land, then I cut down the jurisdiction of this Court to a far greater extent. This is the problem which confronts a Judge whose duty it is to construe the expression “suit for land” appearing in cl. 12 of the Letters Patent. The problem was quite different and almost opposite as I have said, in the matter of construction of the same expression appearing in sec. 5 of the Code of 1859. To give the natural and narrow meaning to the words “suit for land” in the Code of 1859 was to enlarge the jurisdiction of the Mofussil Courts, but to give the natural and narrow meaning to the words “suit for land” in cl. 12 of the Letters Patent is to cut down the jurisdiction of this Court only to the limited extent of excluding suits in ejectment but to leave its jurisdiction in respect of other suits “concerning” land intact. On the other hand, to give a wider meaning to the expression in the Code of 1859 was to leave the jurisdiction of the Mofussil Courts “respecting” or “relating to” land intact as before, but to give the same wider meaning to the expression in cl. 12 is to cut down the jurisdiction of this Court to a very great extent. It is quite clear to me that the initial position of the two Courts being quite different, the same considerations ought not to prevail in the matter of construction of the expression “suit for land” as appearing in the Code of 1859 and of the same expression in cl. 12 of the Letters Patent and the construction put upon sec. 5 of the Code of 1859 cannot be a safe guide. The two problems were entirely different. Leaving aside then the Code of 1859, I ask myself the meaning of that expression in cl. 12. It certainly cuts down the jurisdiction of this Court. But the question is, to what extent was it intended to be cut down? It is true that the jurisdiction conferred by sec. 9 of the Indian High Courts Act of 1861 was subject to the provisions of the Letters Patent to be issued; but do the provisions of the Letters Patent necessarily bring about a drastic change? In my humble view, I should start with the full jurisdiction of the Supreme Court as conferred on the High Court by sec. 9 of the Act of 1861 and then see to what extent it has been whittled down by the Letters Patent. In construing the Letters Patent, if two constructions are open to me, I should adopt the one which is in favour of jurisdiction rather than the other which takes away the jurisdiction to a greater extent. I, for one, shall be loth to put a construction on the expression which will restrict the jurisdiction of this Court and prevent it from entertaining suits which were freely entertained by its predecessor, the Supreme Court. I find that if I put the natural, which is in this case the narrowest meaning, on the expression “suit for land” I can preserve for this Court almost the whole of the old jurisdiction of the Supreme Court and at the same time conform to the true principles of construction.

42. The historical method does not stop at putting the same meaning on the expression in interpreting sec. 5 of the Code of 1859 and cl. 12 but goes further in holding that the amendment of sec. 5 of the Code of 1859 must also be read into cl. 12. To examine this part of the reasoning of the historical method, it is necessary to ascertain why sec. 5 of the Code was amended and what was the effect of such amendment. It will be convenient at this stage to refer to a few decisions on sec. 5 of the Code of 1859 so as to appreciate the amendment of the Civil Procedure Code brought about in 1877. In 1872, the Bombay High Court in Venkoba Balshet Kesar v. Rambheji Velad Arjun . 9 Bom. H.C.R 12 1872. held that a suit for the recovery of a mortgage debt by the sale of the mortgaged property was not a “suit for land” within the meaning of sec. 5 of the Code of 1859 which it was held included only a suit for delivery of land. The effect of adopting this restricted meaning was to give to the Mofussil 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 Leslie15 the Calcutta High Court, however, held, following the decisions in Bibee Jaun v. Meerza Mahommed Hadee . 1 I.J.N.S 40 1865. and Sm. Lalmoney Dossee v. Juddoonath Shaw . 1 I.J.N.S 319 1866. which were decisions on cl. 12, that a mortgage suit for sale was a “suit for land” within the meaning of sec. 5 of the Code of 1859. The effect of adopting this wider meaning was to make the jurisdiction of the Mofussil Courts under this section co-extensive with that under the Regulation. There were thus two conflicting decisions, one extending the jurisdiction of the Mofussil Courts beyond that given by the Regulations and the other maintaining the old jurisdiction. It was in these circumstances that sec. 5 of the Civil Procedure Code of 1859 was replaced by sec. 16 of the Code of Civil Procedure of 1877. The latter section was reproduced in sec. 16 of the Code of Civil Procedure of 1882 and then in sec. 16 of the Code of Civil Procedure of 1908. It will be noticed that the expression “suit for land” does not find a place in the last-mentioned sections. The legislature has now enumerated the different categories of suits relating to land which must be instituted in the Court within whose jurisdiction the land is situate. The enumeration of suits in cls. (a) to (d) of sec. 16 of the Code of 1877 and the later reproductions thereof gave effect to the above-mentioned decision of the Calcutta High Court which means that the jurisdiction of the Mofussil Courts in respect of land as enumerated therein was limited to land within the local limits of the Courts as it was under Regulation III of 1793. The proviso to the section, however, partially gave effect to the decision of the Bombay High Court by providing an alternative forum for instituting suits to obtain relief respecting or compensation for wrong to, immovable property held by or on behalf of the Defendant in the Court within the local limits of whose jurisdiction the Defendant resided or carried on business or worked for gain. Such, I conceive, was the purpose and effect of the new sec. 16. To read all these changes into cl. 12 of the Letters Patent is to ignore the historical back ground and the express provision that the new section should not apply to this Court. The jurisdiction of the Supreme Court in suit “concerning” land was not confined to the city of Calcutta whereas the jurisdiction of the Mofussil Courts in suit “respecting” or “relating to” land was circumscribed by their territorial limits. This distinction, in my view, makes it impossible to apply the same method of construction and giving the same meaning to the expression “suit for land” appearing in sec. 5 of the Code of 1859 and that appearing in cl. 12 or to read the amended sec. 16 of the Code of 1877 or 1882 or 1908 into cl. 12 of the Letters Patent. In my humble opinion the historical method of construction errs in not taking into consideration this basic historical.” difference in the jurisdiction of the Supreme Court and the Mofussil Courts and goes counter to the express provision making sec. 16 inapplicable to this Court. There was nothing to prevent the legislature to make it applicable; to this Court.

43. The position of the High Court has since 1862 remained as before as regards its Original Civil Jurisdiction. There has been no amendment of cl. 12. The two topics—jurisdiction and laws to be administered in exercise of jurisdiction—have been kept separate as before. There has been no alteration of the scheme in this restpect either by the Government of India Act of 191s or by the Government of India Act of 1935.

44. Keeping in view the considerations I have noted and discussed above I now proceed to examine the three methods adopted by different learned Judges in construing the expression “suit for land” in cl. 12 of the Letters Patent.

45. I first take up the second method, i.e, the construction of the expression’ in the light of the doctrines of equity, by adopting which some learned Judges have arrived at meaning (b). I have set out above the two-fold reasonings employed for arriving at this meaning. Those reasonings do not appear to me to be logical and overlook the distinction between jurisdiction (and the laws to be administered in exercise of (jurisdiction. They are also incomplete in that they do not cover all suits concerning land as I shall show. To formulate my respectful criticisms, they are as follows:

(1) This method ignores the cardinal rule of construction laid down in the case of Bank of England v. Vagliano Brothers by not giving the natural meaning to the words in question.

(2) This method reads into cl. 12 the equitable doctrines as a sort of proviso and therefore adds to the clause, which is not permissible.

(iii) This method proceeds on the assumption that jurisdiction of the High Court is not confined to cls. 11 and 12 only but may be found also in cl. 19.

(iv) This method ignores the distinction between jurisdiction and the laws to be exercised in exercise of that jurisdiction which is emphasised throughout in the statutes and Charters.

(v) This method restricts the jurisdiction of the High Court by including within the expression “suit for land,” suits which do not fall within that expression in its ordinary and natural meaning, merely because Courts of Equity will not entertain those suits, e.g, Goculdas v. Chaganlal and Provas Chandra Sinha v. Ashutosh Mukherjee . I.L.R 56 Cal. 979 1929..

(vi) It enlarges the scope of cl. 12 by excluding from “suit for land” certain suits concerning land merely because Courts of Equity will entertain those suits if it can act in personam, e.g, suit for specific performance where the Defendant is within jurisdiction and the land is outside.

(vii) This method is an incomplete one in that it does not take into consideration or provide for similar suits concerning land situate outside jurisdiction where the cause of action arises within jurisdiction but the Defendant resides outside jurisdiction, e.g, suit for specific performance where the agreement is made within jurisdiction but the Defendant resides outside and the land is situate outside.

46. The third method, i.e, the historical method is best formulated and discussed in the comprehensive and erudite judgment of Fawcett, J., in the Bombay Full Bench case of Hatimbhai Hasanally v. Framroz Edulji. My respectful objections to this method are as follows:—

(i) This method ignores the cardinal rule of construction which requires that natural meaning should be put upon ordinary English words.

(ii) This method does not sufficiently take into consideration the different position of the Supreme Court and the Mofussil Courts in matters of jurisdiction and applies the same principle of construction to the Code of 1859 and cl. 12 of the Letters Patent.

(iii) This method reads into cl. 12 the provisions of sec. 16 of the Civil Procedure Code which is a later statute and which was designed only to regulate the jurisdiction of Courts whose old jurisdiction stood on a quite different footing and was circumscribed by territorial limits and ignores the express provision of the Code which makes that section inapplicable to this Court.

(iv) This method takes away the old jurisdiction of the Supreme Court inherited by the High Court to a far greater extent by imputing a wider meaning to the expression “suit for land” than is warranted by the language and the historical considerations.

(v) This method involves admitting in evidence of materials, e.g, Reports of Law Commissioners, Despatch of Secretary of State, about the admissibility of which there is considerable doubt.

(vi) The meaning arrived at by this method includes suits, e.g, for administration of the estate of a deceased person or the administration of a trust which have been held by the Privy Council not to be suits for land in Benode Behari v. Nistarini . I.L.R 33 Cal. 180 and Srinivas v. Vukaa Varda . I.L.R 34 Mad. 257 1911. and therefore the meaning arrived at by this method of construction cannot be accepted as a correct definition at all.

47. I am thus left with the first method, i.e, the principle of such interpretation. This method has in my humble opinion the following merits:

(i) It conforms to the cardinal rule of construction to which I have referred.

(ii) It leaves the jurisdiction inherited by the High Court from the Supreme Court intact except with regard to what may strictly be called a “suit for land” within the meaning of cl. 12.

(iii) The meaning arrived at by this method leaves a wide field for the application of the equitable principle to persons within jurisdiction.

(iv) This method has the approval of the recent decision of our Court on appeal in Nagendra Nath v. Eraligool Co. which is binding on me.

48. For reasons stated above I respectfully adopt this method of construction in preference to the other two methods and conclude that the true meaning of the expression “suit for land” in cl. 1.2 of the Letters Patent is a suit for recovery of land. I am not unmindful of the fact that this meaning 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 on me. If in future a case comes before me which is fully covered by any of those decisions, I shall feel bound to follow them but I shall do so with a respectful protest. As regards decisions which are not binding on me I shall respectfully dissent therefrom. If there is any inconvenience as a result of putting this simple and natural meaning, it is for the legislature and not for the Courts to mitigate the same.

49. I now proceed to deal with the reported decisions on cases of specific performance.

50. In Ramdhone Shaw v. Sm. Nobomoney Dassi {21), Norman, J., held that a suit by the purchaser for specific performance of an agreement made in Calcutta for sale of land outside Calcutta was not a suit for land and that this High Court had jurisdiction to entertain such a suit. This decision no doubt loses in weight because no reasons are given in support of it; but it has a value of its own in that it was given shortly after the Letters Patent of 1862 came into force. This case has also been referred to without dissent in subsequent cases. I respectfully agree with the actual decision in this case.

51. The case of Shreenath Roy v. Cally Doss Ghose22 was one by the mortgagee for specific performance of an agreement to mortgage 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 specific performance of the agreement with respect to land, the Court had no jurisdiction to entertain it but His Lordship passed a money decree. No reasons are given in support of the decision on the first point. Indeed, learned Counsel for the Plaintiff did not at the hearing ask for specific performance and limited himself to the money claim and strictly speaking, it was not necessary to decide whether a suit for specific performance of such an agreement was or was not a suit for land. No reference was made to Ramdhone's case . [1865] Bourke 218. in the judgment.

52. Holkar v. Dadabhai Chursethi Ashburner was a suit by the mortgagee for specific performance of an agreement made in Bombay, to execute a mortgage over lands situate in the island of Salsetti outside the jurisdiction of the Bombay High Court. Bayley, J., held that the Bombay High Court had jurisdiction to enter tain the suit, he made a decree which is set out at p. 354-355. Amongst other things it direct ed specific performance by permitting the Plaintiff to enter into possession of the lands in question. The Defendant resided outside jurisdiction. On appeal by the Defendant the decision of Bayley, J., was upheld. Sarg??? C.J, applied what I have called the second method, i.e, construction on the basis of equity able principles. The objections to this method of construction which I have set forth above apply to this decision. The learned Chief Justice overlooked the fact that the Defendant did not reside in Bombay and the High Court consequently could not act against him in personam. He also overlooked the fact that the agreement provided for delivery of possession and the decree as drawn up directed the Defendant to permit the Plaintiff to take possession. On this ground the suit may well have been held to be one for land. Apart from this and taking the suit as a suit for specific performance only, I would have based my decision on the ground that it was not a suit for land because it was not a suit for recovery of land which is the correct meaning of that expression and not on equitable grounds.

53. The next case is that of Land Mortgage Ban??? v. Sudurudeen Ahmed . I.L.R 19 Cal. 358 1892. decided by Trevelyan, J. It was a vendor's suit for specific performance of an’ agreement made in Calcutta for sale of certain lands at Burdwan or in the alternative for damages., His. Lordship made a distinction between a vendor's; suit and a purchaser's suit and stated that he had not to give any decision on the maintainability of the latter, although he expressed an opinion that the purchaser's suit may be a suit for land as the object of the purchaser is to get possession of the land. His Lordship held that a vendor's suit is hot a suit for land and observed as follows at p. 367.

“So far as the paragraphs of the prayer of the plaint in this case under the headings (a) and (c), I do not think that this is a suit if or land. It is not a suit to sell or acquire possession of or title to land in any sense. Clearly it does not come within the definitions given by Sir R. Garth. I decline to hold that wherever land has anything to do with a suit, At is therefore a “suit for land”. I must go???o far as that to accept Mr. Jackson's argmment.

If the framers of the Letters Patent had intended to exclude the jurisdiction of this Court in the way suggested, they would have used different words.”

54. While I agree with the actual decision, I respectfully beg to point out that the reasons do not appeal to me. I do not think that on a correct view of the true nature and scope of a suit for specific performance of an agreement for sale, there is any real distinction between a vendor's suit and a purchaser's suit. An agreement for sale of land necessarily involves mutual obligations, namely, an obligation on the part of the purchaser to pay the purchase money in the manner agreed upon and obtain a deed of transfer of the property on such payment and an obligation on the part of the vendor upon payment of price to execute a deed of transfer of the property to the purchaser after making out a good title unless the title has been, by the agreement or otherwise subsequently, accepted by the purchaser; It is not necessary for me to specify all the obligations in detail, what I have stated are the minimum in any agreement for sale of land. Whoever seeks specific performance has to be ready and willing to perform his part of the agreement. This readiness, and wiilingness has to be pleaded in the plaint and proved at the trial. In the prayer he has to pray that the agreement be specifically per formed. This means and involves that the agreement be specifically performed by both parties When a Plaintiff asks for specific performance he offers to perform his part. Without performance on both sides, the agreement is not specifically performed. Whether the suit is brought by the vendor or by the purchaser, the decree must direct both parties to perform their respective parts of the agreement. If the Court is of opinion that the agreement ought to be specifically performed, the judgment contains a declaration to that effect. Omitting the proceedings relating to enquiry as to title and other enquiries, it will appear from the forms of decrees in Seton on Judgments and Orders, 7th Edn., Vol. III, p. 1236 et seq that in a vendor's action the vendor is directed to execute a conveyance and deliver the title deeds and the purchaser is directed upon the vendor executing a conveyance and delivering the title deeds to pay the purchase money. In a purchaser's action it is directed that upon the Plaintiff paying the 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 of the land. The decree in a suit for specific performance is mutual and enures for 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 decree and 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 upon executing the conveyance and delivering the title deeds, execute the decree and compel the purchaser to pay the price. I need only refer to the case of Heramba Chandra Maitra v. Jyotish Chandra Sinha . 36 C.W.N 172. where the nature of a decree for specific performance is clearly laid down by Rankin, C. J., In this view of the matter, a suit for specific performance of an agreement for sale, whether brought by the vendor or by the purchaser, must logically have the same end in view and the decree brings 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 possession at all. When the agreement ‘is specifically performed, then the purchaser acquires title and can sue for possession. Or. 2, r. 2, C.P C, is no bar to such subsequent suit (see case in Mulla's C.P C, at p. 535-536). Therefore I would rather base my decision that a suit for specific performance simpliciter is not a “suit for land” on the ground that it is not a suit for recovery of land than on any equitable ground or on any supposed distinction between the purchaser's suit and the vendor's suit which, in my humble opinion, is based on a superficial and partial view of the true nature and scope of a suit for specific performance.

55. In Hunsraj v. Runchordas . 7 Bom. L.R 319 1905. the Bombay High Court following its own decision in Holkar's case held that a suit for specific performance is not a “suit for land.” My respectful comments are as stated above.

56. The next decision in a suit for specific performance to which I should refer is the case of Ratanchand Dharamchand v. Gobind Lall Dutt . I.L.R 48 Cal. 882 1921.. It was a suit by the mortgagee, who had a chanced moneys to the Defendant in Calcutta, for specific performance of an agreement to mortgage lands outside the jurisdiction. Greaves, J., following Sreenath Roy v. Cally Doss Ghose held that the suit was a suit for land and dismissed the suit. Like Pontifex, J., in Sree nath Roy's case, Greaves, J., gave no reasons for his decision. With great respect to the learned Judges I am, for reasons set forth above, unable to accept their decisions as correct.

57. The case of Nagendra Nath Chowdhury v. Eraligool Co., Ltd. was a vendor's suit for specific performance of an agreement made in Calcutta for sale 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 Defendant appealed and the appeal turned on the question whether the Court had any jurisdiction at all to entertain such suit. Sanderson, C.J and Richardson, J., held that it was not a suit for land and therefore this Court had jurisdiction to entertain it. Their Lordships followed the first method I have discussed above. At p. 678 the learned Chief Justice observed as follows:—

“In my judgment it cannot be too clearly laid down that in construing a statute it is necessary for the Court to give the natural meaning to the words which are used, and if it is thought advisable to include cases which are not covered by the words of the Statute in their natural meaning, it is not for the court to ???train the language of the statute, and the same principle applies to the construction of the charter. In my judgment, this is not a suit for land within the meaning of el. 13 of the Letters Patent, and the Court had jurisdiction to entertain the suit having regard to the fact that the agreement, which it is sought to enforce, was made in Calcutta. To my mind, that really disposes of this case.”

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

59. The case of Velliappa Chettiar v. Gobinda Doss . I.L.R 52 Mad. 809 1928. was decided by a Pull Bench of the Madras High Court. It was held that a purchaser's suit for specific performance of a con tract to sell, made in Madras, by parties resident therein is not a suit for land. While I agree with the actual decision I find it difficult to follow or adopt the main reasoning on which the decisions of most of the members of the Full Bench were based. The reasoning appears to be that a suit for specific performance is a suit in personam as opposed to a suit in remand a decree in such a suit can be enforced in personam as the Defendant is residing within jurisdiction and the High Court has jurisdiction in personam and therefore a Suit for specific performance is not a “suit for land” within the meaning of cl. 12. First of all, I do not think that the process or method of execution can determine the nature of a suit, for a decree in a suit for land can in many circumstances be enforced in personam. Secondly this reasoning does not take into consideration a suit for specific performance of an agreement made within jurisdiction for sale, of land outside jurisdiction against a Defendant who may be outside jurisdiction. This reasoning will not apply to that case. Will the Court then decline to entertain the suit although it is not a suit for land and although a part of the cause of action arose within jurisdiction merely because the Defendant being outside the Court cannot act against him in personam? I cannot think that that is the correct view. This method of interpretation does not provide for such case and is therefore erroneous and incomplete. I would therefore support this decision on the broad and simple ground on which it was based by Ven kata Subba Rao, J., namely that not being a suit for recovery of land the suit was not a “suit for land” although I do not adopt the adverb “primarily” used by the learned Judge.

60. The next case to be considered is that of All India Sugar Mills Ltd.…Plaintiff; v. Sardar Sunder Singh…Defendant. decided by Ameer Ali, J. His Lordship followed the decision of Greaves, J., in Ratanchand Dharamchand v. Gobind Lall Dutt which in its turn followed the earlier decision in Sreenath Roy v. Colly Doss Chose. I have {made my respectful comments on those two earlier cases and pointed out that the learned Judges there do not give any reason in support of their decisions and consequently those decisions are not of any great help in ascertaining the meaning of the words “suit for land” in cl. 12. Ameer Ali, J., referred to the different methods of construction and preferred the method adopted by Page, J., in Goculdas v. Chaganlal and that adopted by the Madras High Court in Velliappa Chetti v. Govinda Dass. and was inclined to hold that the suit before him was not a “suit for land” but his Lordship felt bound, having regard to the decisions of this Court and to the manner in which they have long been understood, to hold that the suit before him was a “suit for land.” I have made my submissions with regard to this method of construction based on principles of equity and it is my misfortune that I cannot appreciate the logic of that method. I have enumerated the objections to that method and I need not repeat them. With the greatest respect to the learned Judge, I find the method of simple interpretation which he has described as the popular construction” of the clause as the most logical ‘method of construction for reasons enumerated by me above.

61. The last decision that I must refer to is that of Gentle, J., in Suit No. 822 of 1940 [Probodh Kumar Das v. The Dantmara Tea Co., Ltd.] delivered on July 12th, 1943, wherein his Lordship has held that a purchaser's suit for specific performance is not a “suit for land.” I respectfully agree with the actual decision in that case. I am also in agreement with Gentle, J., in so far as he bases his decision on the reasoning given by Sanderson, C. J., in Nagendra Nath v. Eraligool Co., Ltd., namely, that the natural meaning should be given to the words “suit for land.” His Lordship has, however, also referred to the powers of Court of Equity to act in personam in support of his decision and held that there is no difference in that respect, between the jurisdiction of this High Court and the English Courts. For reasons already given I find it difficult to accept this method of interpretation of cl. 12.

62. On a review of the decisions of the different High Courts in suits for specific performance and on a construction of the expression “suit for land” in cl. 12, I have come to the conclusion that in its true meaning that expression only covers a suit for recovery of land and a suit for specific performance simpliciter whether brought by the vendor or by the purchaser, is not a “suit for land” so understood. As I have explained above there is, in legal principle, no distinction between a vendor's suit and a purchaser's suit.

63. The above conclusion, however, does not dispose of the case before me. I have already referred to paragraph 5 of the plaint. The formal prayer, in my opinion, must be regarded as a compendious formula covering all that has been claimed in paragraph 5 of the plaint. The agreement itself provides for 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 a suit for possession of the lands which are outside the jurisdiction of this Court. In so far as it is a suit for possession, it is a “suit for land” ac cording to the meaning I put on that expression and therefore this Court has no jurisdiction to entertain this suit. I therefore answer the Issue No. 1 in the negative.

64. As the matter may not rest here, I consider it proper to give my decision very briefly on the merits. By the terms of the agreement the purchase was to be completed by April 20th, 1940. It is common ground that it was not com-pleted by that date. There is an allegation in the plaint that the time for performance was extended upto the end of September, 1940, by mutual agreement which is said, in the particulars supplied to the Defendant, to have been arrived at on May 1st, 1940. There is no mention of this alleged agreement in any of the letters written on behalf of the Plaintiff to which I have already referred. The story of extension of time is mentioned for the first time in the plaint and depends on the oral testimony of the Plaintiff's husband who has deposed on her behalf. The Defendant's husband, who was in charge of this matter on behalf of the Defendant, denies that there was any such agreement. The Plaintiff's husband is not supported by any contemporaneous document. On the contrary, I find from the correspondence that the first excuse put forward for non-completion was the discrepancy regarding the southern boundary. It appears to me to be a lame excuse. The Plaintiff's husband and his brothers were the original owners of these lands and knew about the boundaries. . The agreement itself stated that there were discrepancies regarding the southern boundary. Therefore there was no question of the Defendant's husband explaining anything. The next grievance was about non-delivery of copies of old title deeds. The Plaintiff's husband and his brothers were original owners and at the time of their purchase they took copies of all old title deeds from the Defendant's husband who was the mortgagee. On the date of the agreement, they only took copies of the 2 subsequent title deeds. Finally it was said that April 20th, 1940, had been fixed provisionally. Even on the date of the letter dated May 23th, 1940, it was not alleged that the time had been extended on May 1st, 1940. The Plaintiff's husband appeared to me to be a very unsatisfactory witness. He fenced and prevaricated as to his age, as to his knowledge of the proceedings in the mortgage suit, about the; extent of the means of the Plaintiff and the properties inherited by her and about the Defendant appearing before him. Of the two witnesses I certainly prefer the evidence of the Defendant's husband. On the evidence before me am not satisfied that there was any agreement, for extending the time for completion and I answer Issue No, 3 in the negative.

65. Ordinarily time is not regarded as of the essence of a contract for sale of land unless it is made so specifically. Cl. 5 of the agreement appears to me to be a condition making time of the, essence of the contract, I have held that, there was no agreement for extension of time. A question of waiver was raised based on the fact that the Defendant's husband, accepted the draft conveyance after, the time for completion had expired. The Defendant's husband has explained the circumstances in which the letter and the draft had been left with him at his shop and said that he had to leave town oh that very date and replied to that letter on May 7th, 1940. I do not hold that in the circumstances there was any waiver. There; being thus no extension of time or waiver of time, the agreement became void and I am inclined to hold that the suit is not maintainable and to answer the Issue No. 2 in the negative.

66. The Plaintiff does not appear to me to have been ready and willing to complete the purchase throughout. No tender was made for the payment of arrears of municipal rates. The burden] of proof is on the Plaintiff but the evidence of the Plaintiff's means does not appear to be satisfactory. I would answer the Issue No. 4 also against the Plaintiff.

“On the evidence before me I am not satisfied that the Plaintiff's husband was ignorant of the sale of the premises by the Defendant to Mahaboob Mistry in November, 1940.. This suit was filed on December 20th, 1940. The dates are significant. The fact that Mahaboob Mistry retained Rs. 1,000 out of the purchase money seems to support the evidence of Defendant's husband that the Plaintiff's husband threatened the purchaser against purchasing the lands. In view of my other findings; I do not, however, consider it necessary to express any definite opinion on Issue No. 5.

67. In view of my findings on Issues Nos. 2, 3 and 4, it is not necessary to discuss Issue No. 6 on 7 in detail. Suffice it to say that the evidence of loss alleged to have been suffered by the Plaintiff appears to me to be exaggerated.

68. The result is that this suit, for reasons stated above, must be dismissed with costs, including reserved costs.

Solicitors: S.H Datta for the Plaintiff; S. Chatterjee for the Defendant.

C.C