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Vedabala Debee v. The Official Trustee Of Bengal

Calcutta High Court

Feb 18, 1935

Judgment

Subsequent
References

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Structured Summary of the Opinion (Ameer Ali, J.)

Factual and Procedural Background

These proceedings were instituted by an Originating Summons dated 15 January 1935, brought by Sreemati Vedabala Debee, a daughter of the testator Maharajkumar Neeranjan Chakrabarti. The defendants are: (1) the Official Trustee of Bengal appointed executor and trustee under the will; (2) Sreemati Tapobala Debee, another daughter of the testator; (3) Sreemati Swetbarani Dasee, a legatee; and (4) the Advocate-General of Bengal representing charities.

The will in question is dated 29 September 1929 (English date). At the date of the will most of the testator's immoveable property was situated beyond the ordinary civil jurisdiction of the Court, while he held considerable moveable property within the jurisdiction. Subject to certain specific bequests, the will creates trusts for religious and charitable purposes, appoints the Official Trustee as sole executor and trustee, and makes the Padmasundaree Trust the residuary legatee of moveable property. Clause 18 lists objects for the trust (clauses (a) to (n) specific; clause (o) general). Clause 18(o) is a residuary charitable object disposing of the "residue of the residue."

The principal procedural and substantive question before the Court was whether the residuary charitable bequest in clause 18(o) is void for uncertainty. For practical reasons the testator's daughters sought an early determination. An objection to the Court's jurisdiction was taken on the ground that this was effectively a "suit for land" within the meaning of clause 12 of the Charter, because the immoveable property lay outside the ordinary civil jurisdiction.

Legal Issues Presented

Whether the residuary charitable bequest in clause 18(o) of the will is void for uncertainty.
Whether the Court has jurisdiction to decide that question, specifically whether these proceedings amount to a "suit for land" under clause 12 of the Charter (and thus outside this Court's jurisdiction because the immoveable property is abroad).
Subsidiary procedural question whether the Plaintiff and certain claimants are claiming "under the will" or "dehors the will" (i.e., as heirs/resulting trust claimants), and the impact of that characterisation on the appropriateness of an Originating Summons.

Arguments of the Parties

Plaintiff's Position

The plaintiff (Sreemati Vedabala Debee) sought an early determination of the principal question (the validity/certainty of the residuary charitable bequest) by Originating Summons.
The plaintiff's claim was, as discussed by the Court, effectively a claim dehors the will (i.e., arising on failure of the declared trusts) rather than a claim that she was a beneficiary "under" the will.

Defendants' Arguments (Jurisdiction Objection)

Counsel for the Advocate-General of Bengal and counsel for the Official Trustee objected to the Court's jurisdiction on the ground that the matter is a "suit for land" within the meaning of clause 12 of the Charter because the testator's immoveable property is situated beyond the ordinary civil jurisdiction of the Court.
Implicit in this objection is reliance on the line of authorities construing clause 12 (including the approach taken by Page, J. in prior cases) that actions affecting title to land abroad are outside the local jurisdiction of the High Court unless they fall within recognised exceptions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Goculdas v. Chaganlal	Formulation (by Page, J.) of the test: "suits for land" are those in which, having regard to the issues, the decree will affect directly the proprietary or possessory title to land.	The Court examined whether that formulation correctly stated English law and whether it was properly applied in later Indian decisions; it was the central test the Court analysed.
Provas Chandra Sinha v. Ashutosh Mukherji	Application of Page, J.'s test to hold that the Court had no jurisdiction (i.e., characterising the suit as a "suit for land").	The Court concluded that Page, J. had misapplied the principle in that case and that the decision should not have resulted in refusal of jurisdiction; thus Provas was criticised as wrongly decided on application of the test.
Velliappa Chettiar v. Govinda Dass	Authority discussing construction of clause 12 and difficulties with the word "for".	Used as part of background to show conflicting authorities on clause 12 and to place this Court's analysis within that context.
Hatimbhai Hassanally v. Framroz Eduljee Dinshaw	Another decision commenting on clause 12 and the meaning of "for".	Referred to as one of the conflicting authorities on clause 12; used in comparative discussion of approaches.
Holkar v. Dadabhai Cursetji Ashburner	Approach based on assumption that the Charter embodies English legal principle — i.e., consider what English courts could or could not entertain.	The Court chose to adopt the same method (compare with English rules) in its analysis of clause 12.
British South Africa Company v. Companhia de Mogambique (The "Mogambique" case)	Principle that English courts will not adjudicate actions founded on disputed title to foreign land; but may incidentally determine title when necessary.	The Court relied on and analysed this leading English authority in discussing the scope of the exception and in assessing what constitutes matters that "affect directly" title to land.
In re Hawthorne; Graham v. Massey	Instances where English courts refused jurisdiction in suits involving title to land abroad (characterised as "insulated questions of title").	The Court treated this as an example of refusal of jurisdiction where independent parallel claims to title existed (no relation by priority or contract), and distinguished it from cases where jurisdiction was exercised.
Deschamps v. Miller	Another English refusal where plaintiffs and defendants relied on different foreign-law sources of title; used to illustrate "insulated" title disputes.	Used similarly to Hawthorne as an example of a case rightly refused as directly affecting title to foreign land.
Pike v. Hoare	Case cited in discussions of jurisdiction; included historical difficulties about admitting suits relating to lands abroad.	The Court considered it not directly applicable to construction/effect of wills of lands abroad and suggested it may be disregarded for present purposes.
Harrison v. Gurney (Irish Trust)	English case where jurisdiction was entertained despite foreign land being involved.	Placed among examples where English courts exercised jurisdiction, supporting the proposition that equity courts could deal with such matters where appropriate.
Bunbury v. Bunbury	Suit for administration of trusts of land in Demerara; injunction and appointment of manager granted.	Used as an example of an English court entertaining proceedings concerning foreign land where issues were not isolated title disputes.
Tulloch v. Hartley	Listed among English authorities where jurisdiction was exercised.	Referred to in a list of cases supporting the proposition that courts sometimes exercise jurisdiction involving foreign land.
Maunder v. Lloyd	Listed among suits (e.g., winding up partnership where assets included land abroad) where jurisdiction was exercised.	Used to illustrate English courts' willingness to administer trusts/partnerships even with foreign land involved.
Ewing v. Orr Ewing	Listed in the catalogue of cases supporting jurisdiction in analogous contexts.	Referred to as part of the body of decisions that suggest English equity could entertain certain suits touching foreign land.
Re Lane; Lane v. Robin	Administration matters involving foreign land/personalty distinctions.	Included among authorities showing instances where jurisdiction was exercised for administration of estates with foreign elements.
In re Piercy; Whitwham v. Piercy	Case involving English testator and land in Sardinia; administration and determination of whether foreign law made trusts invalid.	Included as an authority where English jurisdiction over administration of estate with foreign land issues was exercised.
Grey v. Manitoba and North Western Railway Company of Canada	Discussed by Page, J. as an example concerning inter-provincial comity and local limits of jurisdiction.	Referred to in the Court's comparative discussion of limits of jurisdiction based on comity.
Re Clinton; Clinton v. Clinton	Administration of estate where business consisting of lands on Gold Coast raised mixed questions; English court exercised jurisdiction in respect of assets vested in executrix.	Used to show that English courts sometimes adjudicate on matters affecting title abroad when issues are incidental or relate to executorial rights.
Bagram v. Moses	Indian authority where a trust for lands outside the jurisdiction was alleged and jurisdiction was exercised.	Produced as an Indian example aligning with English practice where jurisdiction to administer trusts concerning foreign land was upheld.
Juggodnmba Dossee v. Puddomoney Dossee	Religious trust of lands outside jurisdiction; accounts and scheme; jurisdiction exercised.	Referred to as Indian authority supporting exercise of jurisdiction in trust administration involving foreign land.
Delhi and London Bank v. Wordie	Action to administer trust of land outside jurisdiction where jurisdiction was refused.	Noted as a contrasting Indian authority where jurisdiction was declined; court observed it turned on distinguishing facts.
Kellie v. Eraser	Winding up of partnership where assets included land outside jurisdiction; referenced among Indian cases.	Listed in survey of Indian authorities bearing on the question of jurisdiction in matters involving foreign land.
Hara Lall Banerjee v. Nitambini Debi	Indian decision touching lands outside jurisdiction and construction of will with claim to possession; jurisdiction refused in that matter.	Referred to as an instance where clause 12 wording led to refusal of jurisdiction; compared against other cases.
Srinivasa Moorthy v. Venkata Varada Aiyangar	Testator domiciled in Mysore; land in Mysore; Madras Court exercised jurisdiction and appointed receiver.	Used as an example where Indian courts exercised jurisdiction despite foreign (within India but outside that High Court's ordinary jurisdiction) immoveable property.
Krishnadoss Vithaldoss v. Ghanshamdoss	Administration of trust and accounts where land outside jurisdiction was involved; cited among Indian cases.	Included in the Court's survey of Indian authorities showing jurisdiction exercised in trust and administration matters.
Hawthorne; Graham v. Massey (repeated entry as refusal example)	See above (refusal example).	See above.

Court's Reasoning and Analysis

The Judge proceeded in a structured way. He identified two linked issues: (A) the substantive question whether clause 18(o) is void for uncertainty, and (B) a preliminary jurisdictional question whether the Court could entertain that question under clause 12 of the Charter because the testator's immoveable property lay beyond the ordinary civil jurisdiction.

Procedural posture: the proceedings were by Originating Summons under Chapter 13 of the Rules. The Judge observed that Originating Summons proceedings are suits of a peculiar nature and that the Court must decide whether the issues are ones it can properly determine on Originating Summons (Chapter 13, rule 9 being an example).

Characterisation of parties' claims: the Judge analysed whether the plaintiff (and Tapobala Debee) were claiming "under the will" or "dehors the will." He referred to the Indian Succession Act (sections 102, 103 and 108) and the rule in Skrymsher v. Northcote to conclude that the present dispute concerns a share of the general residue and that, upon failure, there is an intestacy as to that lapsed share (so the claim is, in substance, a claim dehors the will). The Judge treated this as relevant but not determinative of jurisdiction—he said he would not refuse to exercise jurisdiction on Originating Summons merely because of a technical characterisation unless the parties successfully objected.

On clause 12 of the Charter the Judge examined previous authorities and identified four methods of construing "suits for land": (1) simple interpretation; (2) investigation of origin; (3) enumeration of categories; (4) enquiry into what English courts could have entertained (the method adopted by Holkar v. Dadabhai). He chose to follow the fourth method and to test whether an English court of equity could have exercised jurisdiction in a similar case.

The Judge articulated three specific questions to guide his enquiry: (i) whether the English-law principle was correctly stated in Goculdas v. Chaganlal, (ii) whether clause 12 is co-extensive with that English principle, and (iii) whether the principle was correctly applied in Provas Chandra Sinha v. Ashutosh Mukherji.

He analysed Page, J.'s test from Goculdas v. Chaganlal ("will affect directly the proprietary or possessory title to land") and emphasised difficulties in applying the critical word "directly." The Court surveyed textbooks (Dicey, Westlake, Daniel's Chancery Practice, Lewin on Trusts) and leading English cases (including the Mogambique case) to demonstrate that English law admits exceptions where suits involving foreign land relate to personal obligations, fiduciary relations, trusts, administration or other matters where relief is personal rather than a claim to the land itself.

The Judge then compared English authorities where jurisdiction was exercised (e.g., Harrison v. Gurney; Bunbury v. Bunbury; Re Piercy; Re Clinton; cases involving administration, partnership winding-up, or administration of trusts) with those where jurisdiction was refused (e.g., In re Hawthorne; Deschamps v. Miller). He identified a distinguishing factor: refusals tended to involve "insulated questions of title"—parallel independent claims to title where no priority, contract, or fiduciary relationship created a personal obligation between contestants—whereas exercise of jurisdiction tended to occur when the matter was essentially one of administration, construction of trusts, executorial rights or other personal obligations, even if a decree would incidentally or mediately affect title or possession.

Turning to Indian authorities, the Judge surveyed a mixed line of decisions: some Indian cases followed the broader English practice and exercised jurisdiction in matters of trust or administration involving land outside the jurisdiction (e.g., Bagram v. Moses; Juggodnmba Dossee v. Puddomoney Dossee; Srinivasa Moorthy v. Venkata Varada Aiyangar), while others (e.g., Delhi and London Bank v. Wordie; Hara Lall Banerjee v. Nitambini Debi) had refused jurisdiction or taken a more restricted view based on clause 12 wording.

On balance, the Judge concluded that Page, J.'s application of the English equity test in Provas was incorrect; the English authorities did not support a blanket refusal of jurisdiction in cases concerning administration and construction of trusts merely because land lay abroad. The Court expressed the view that the rules of English law do not bar suits for the administration of trusts declared by will or deed, for construction, and for determination of validity/effect of such trusts, even if a decision will indirectly or incidentally affect title or possession of foreign land.

Holding and Implications

The Court held that it has jurisdiction to entertain the Originating Summons and to determine whether the residuary charitable bequest (clause 18(o)) is void for uncertainty; it rejected the contention that clause 12 of the Charter, as applied in Provas Chandra Sinha v. Ashutosh Mukherji, automatically ousts jurisdiction in such administration/trust matters merely because immoveable property is situated abroad.

Implications:

Direct effect on the parties: The Court will proceed to decide the substantive issue on the Originating Summons (the principal question being the validity/uncertainty of the residuary charitable bequest). The jurisdictional objection founded on clause 12 and the fact that immoveable property lies beyond the ordinary civil jurisdiction was overruled for the purposes of these proceedings.
Scope of precedent: The opinion expresses a general view that English rules do not bar suits for administration/construction of trusts even where title or possession of foreign land may be incidentally affected. The Court criticised the application of Page, J.'s principle in Provas and adopted a broader equitable approach aligning with English chancery practice in many authorities. The opinion therefore signals a more permissive approach to jurisdiction in trust/administration matters, but the text of the provided opinion does not state that a new binding precedent was formally declared beyond the decision in this instance.
Substantive determination: The provided excerpt does not contain a final substantive determination on whether clause 18(o) is void for uncertainty; it records that the jurisdictional threshold will not prevent the Court from deciding that primary question.

Administrative and Representation Details

Attorneys appearing in the matter (as recorded in the opinion text):

For the plaintiff, Sm. Vedabala Debee: Suresh Chandra Bose.
For the Official Trustee of Bengal: B. K. Bose.
For Sreemati Tapobala Debee: Pankaj Kumar Sen.
For Sreemati Swetbaranee Dasee: Pal Chowdhury & Co.
For the Advocate-General of Bengal: S. S. Hodson.

Note: This summary is strictly confined to information contained in the provided opinion text. No facts, rulings, or implications have been added beyond what appears in that text.

Show all summary ...

Ameer Ali, J.:— The proceedings before me were instituted by an Originating Summons, taken out on the 15th January, 1935, by one Sreemati Vedabala Debee, a daughter of Maharajkumar Neeranjan Chakrabarti, the testator.

The defendants are the Official Trustee of Bengal, who was appointed executor and trustee of the trusts declared by the will, Sreemati Tapobala Debee, another daughter of the testator, Sreemati Swetbarani Dasee, a legatee, and the Advocate-General of Bengal representing charities.

The principal question for decision is whether the residuary gift to charity is or is not void for uncertainty.

The will, dated September 29, 1929 (English date), disposes of very large properties. At the date of the will, however, the whole of the testator's immoveable property was situated beyond the ordinary civil jurisdiction of this Court. He possessed considerable moveable property within the jurisdiction.

Subject to certain bequests, the will purports to dispose of the whole of the property to religious and charitable trusts; this appears from the recitals where he states that his daughters are in comfortable circumstances and that it is the testator's desire that, after his death, the entire income and profits of his properties “may be devoted for all time to come to works of public utility and domestic weal”. With this, object in clause 2 of the will, he makes a trust in the name of his mother Padmasundaree Debee (see clauses 3 and 4). In clause 6 he appoints the Official Trustee of Bengal sole executor and sole trustee of the will and of the Padmasundaree Trust. Clause 15 indicates that the trust is in the position of residuary legatee with regard to the bequest of moveable property. Clause 17(a) also indicates the residuary nature of the bequest to the trust. Clause 18 sets out in sub-clauses (a) to (o) the objects to be benefited by the trust. Clauses (a) to (n) indicate specific objects and clause (o) being in more general terms almost identical with the phrase in the recitals which I have already quoted. Clause (o) reads as follows:—

The Official Trustee………………shall make expenses in works of public utility and for helping individuals and families in miserable circumstances.

It has been agreed between counsel that the word translated as “and” should more properly read “or”.

Shortly put, therefore, the scheme of this will is to make the trust the residuary legatee. The trust in turn is for certain specific objects, with a residuary charitable object in clause 18(o). Clause 18(o) disposes of the residue of the residue.

As already stated, the principal question for decision is whether this bequest in clause 18(o) is void for uncertainty. That is the main question to be decided on the Originating Summons. For certain practical reasons, which I need not explain, the daughters of the testator desire that it should be decided as early as possible.

An objection to jurisdiction has been taken on the ground that this is a suit for land and that the whole of the immoveable property belonging to the testator is beyond the ordinary civil jurisdiction of this Court: the old point which arises on clause 12 of the Charter. The objection has been taken both by counsel for the Advocate-General and by counsel appearing for the Official Trustee. I assume that it was not taken in any antagonistic spirit, but purely from a desire to have the point definitely settled, so that any judgment given by me in these proceedings may be unassailable on the ground of want of jurisdiction.

Before I deal with the objection to jurisdiction, I will refer shortly to another preliminary matter which may in any proceedings on Originating Summons call for decision and which arises incidentally in this case. The system under which this Court entertains proceedings on Originating Summons is contained in Chapter 13 of the Rules. There is no doubt that such proceedings are suits, but they are suits of a peculiar nature. For instance, questions may be answered by this Court, which have the effect of declarations without making it necessary for the parties to ask, or the Court to grant, any further relief. Compare section 42, Specific Relief Act. The procedure is much the same as the procedure in England under the Rules of the Supreme Court. In each case, the Court will consider whether: (a) the questions asked or the relief sought are such as the Court can under the rules deal with on Originating Summons and (b) they are such as the Court can conveniently deal with on Originating Summons. If either of (a) or (b) are decided in the negative sense the Court will relegate the parties to an ordinary suit.

For instance, under Chapter 13, rule 9, it may be queried whether the person taking out the original Originating Summons is or is not “a person claiming to be interested under the will”.

Thus it has been held in England that persons claiming under a resulting trust on the failure of the trusts created by a deed are not persons “claiming under the deed”: In re Amalgamated Society of Railway Servants. Addison v. Pitcher.

So also in this case, it might have been objected that the plaintiff here is not claiming under the will of the testator but upon an implied or resulting trust which will only arise upon failure of the declared trusts of the will. That, technically, as I shall shortly explain, is correct. Nevertheless, I consider the question that arises here to be one which the Court ordinarily should decide on Originating Summons, whether at the instance of the executor, the legatees or heirs. Speaking for myself I shall certainly not refuse to entertain such questions on Originating Summons unless the parties take objection, and unless I consider the objection to be well founded. Such a case, however, would not indicate a refusal to exercise jurisdiction but a preference for a certain form of procedure.

I shall now explain my reasons for saying that the plaintiff and Tapobala Debee claim dehors the will and not under the will, because this is a matter which may have a bearing on the question of jurisdiction.

The relevant sections in the Hindu Wills Act are identical with those of the Indian Succession Act. Section 102 of the Succession Act defines a residuary legatee, and section 103 gives the effect of a residuary bequest. Section 108 describes what happens to a lapsed share of general residue and states that it “shall go as undisposed of”. The subject matter of the present dispute is, in my opinion, a share of the general residue. This section 108 embodies what in English testamentary matters is known as the rule in Skrymsher v. Northcote(2). There is, therefore, if the bequest fails, an intestacy as to this lapsed share of residue.

It is not necessary for me to discuss what happens on intestacy. I presume that, in the case of a Hindu will, the heirs would be entitled, and I presume also that, under our system of law, where there is an executor, he takes, in the first instance, for all, that is, not only for those claiming under the will but those who claim under the resulting trust. That is more a matter of procedure than of law.

Further, I do not think it is necessary for me for the purpose of deciding this matter to consider what would be the result of lapse under English law. Under English law, before the Administration of Estates Act, 1925, very troublesome questions arose between the heir and the next of kin consequent upon the old distinction in England between personalty and realty and technical rules as to conversion. The matter is clearly explained in Lewin on Trusts, pages 157 to 175. On page 175 occurs the following passage:—

The distinction between the next of kin and the residuary legatee is this, the former claim “dehors” the will whilst the latter is a claimant under the will.

I now proceed to deal with the point of jurisdiction. Does the decision of the question above stated render these proceedings “a suit for land” within the meaning of clause 12 of the Charter? If so, this Court has no jurisdiction to decide it.

Probate of the will was taken out in this Court. The executor is subject to the jurisdiction of this Court. The main defendants reside within the jurisdiction. So far as it is a question of cause of action, the cause of action may be said to have arisen within the jurisdiction of this Court and leave under clause 12 has been obtained. The estate consists of moveable property within the jurisdiction and of real property outside the jurisdiction. Those are the facts.

First of all, certain general remarks regarding clause 12 of the Charter:—As pointed out by the Chief Justice of Madras in the case of Velliappa Chettiar v. Govinda Dass and also by the Chief Justice of Bombay in the case of Hatimbhai Hassanally v. Framroz Eduljee Dinshaw, the word “for” has caused an infinity of trouble. It has cost the public lakhs of rupees. While at the bar, I participated to an inconsiderable extent in the fund referred to. It now falls to my lot as a Judge to add to the host of conflicting authorities on the subject, because I have the misfortune to differ from Mr. Justice Page, who, in a case which cannot be distinguished on principle from the case before me, decided that this Court has no jurisdiction. Provas Chandra Sinha v. Ashutosh Mukherji.

In that case, it is true, the bequest which it was contended was void for uncertainty was not part of, but preceded, the residuary bequest. So that the residuary legatee was, in that case, claiming on a failure of the trust and, therefore, claiming under the will. Here, as already indicated, the next of kin are claiming on a failure of the residuary bequest and, therefore, dehors the will. That, in my opinion, is not sufficient to distinguish the case on principle.

In these circumstances, I would normally have followed the decision of Page, J. and left the plaintiff to appeal. It is not out of disrespect to that learned-judge, but purely from a desire to save the parties additional expense, that I do not take that course.

At least four methods have been adopted in construing the phrase “suits for land”. The first is, simple interpretation. The second is investigation of its origin, a method referred to in the case of Hatimbhai Hassanally v. Framroz Eduljee Dinshaw. The third is what the Chief Justice of Madras [in the case of Velliappa Chettiar v. Govinda Dass(3)] calls, “enumeration of categories,” that is to say, by following one or other of the lines of cases which have decided what is or what is not a suit for land. The fourth is that adopted by the Chief Justice of Bombay in the case of Holkar v. Dadabhai Cursetji Ashburner(4). It is based on the assumption that the Charter embodies English legal principle and consists of an enquiry as to what cases the English Courts could or could not have entertained.

I propose to confine myself to this last method which was that applied by Page, J. in the decision in the case of Provas Chandra Sinha v. Ashutosh Mukherji, read with his previous decision in the of Goculdas v. Chaganlal.

It appears to me, therefore, that, in order to justify my opinion, I shall have to show either that the learned-judge was wrong in his statement of principle or that he was wrong in the application of the principle adopted, or both, and this I propose to attempt under the head of three questions:—

(i) Is the principle of English law correctly stated in the case of Goculdas v. Chaganlal?

(ii) Was the learned-judge right in assuming that clause 12 of the Charter is co-extensive with the principle of English law?

(iii) Has the principle been correctly applied to the facts in the case of Provas Chandra Sinha v. Ashutosh Mukherji?

(i) First of all, the principle or “test”, as Page, J. preferred to call it. In the case of Goculdas v. Chaganlal, the learned-judge stated that test in the following words:—

In my opinion, the term “suits for land” in clause 12 of the Letters Patent means suits in which, having regard to the issues raised in the pleadings, the decree or order, will affect directly the proprietary or possessory title to land.

I assume that the learned-judge (also see page 662) by “issues raised in the pleadings” meant the real question at stake, the real matter which, from the pleadings, falls to be decided, because, speaking for myself, I do not consider that the matter should turn upon considerations merely of form or language [e.g, I do not propose to distinguish this case from the case of Provas Chandra Sinha v. Ashutosh Mukherji on the ground that the plaintiff there was claiming under the will “to be entitled to the whole of the residuary estate” (page 987)].

The important words in this test are “will affect directly…………the title.”

The test was applied with obvious success in the case of Goculdas v. Chaganlal. It is, however, not universally so easy to apply. My meaning is this. It is fairly easy to decide what is a suit. This is a suit. It is fairly easy to decide what is land. Perhaps a little less easy to decide what are the real issues. But when you come to the phrase “affect directly”, it is more difficult. The word “directly” is the uncertain quantity. It is one only of the expressions which have been used in this connexion. Page, J. contrasted “directly” with “indirectly.” I see in Houlditch v. Donegal, the House of Lords contrasted “mediately” and “immediately”: In the case of Velliappa Chettiar v. Govinda Dass “primarily” as against, I presume “secondarily”: In another case “proprio vigori”: In other cases, the Delhi and London Bank v. Wordie, and Hatimbhai Hassanally v. Framroz Eduljee Dinshaw(5), “substantially.” In the case of British South Africa Company v. Companhia de Mogambique(6) “incidentally” is used in the place of “indirectly”.

Adopting Page, J.'s test, it has to be decided, on the facts of each case, whether the decision is or is not one that does or does not affect land directly. This difficulty is, to my mind, immediately apparent from the very materials from which Page, J. extracted his formula.

These materials were of three kinds: (a) textbooks; (b) what I might call general decisions, in particular the Mocambique case; (c) thirdly, certain specific decisions.

(a) Westlake's “Private International Law”, Seventh Edition, 226, 227, 228; Dicey's “Conflict of Laws”, Fifth Edition, 203 to 209. It will be seen that Dicey states the law in the form of a rule and exceptions. The rule is at page 203 (Rule 53 : 1) and the exception at page 207. Both under the rule and the exception a large number of illustrations from cases are given. From these, particularly those at pages 207 to 209, it is at once apparent that if the test is to be of universal application the word “directly” must bear very elastic meaning. A useful passage summarising the principle of English law as to jurisdiction in cases relating to land is that in Daniel's Chancery Practice, Eighth Edition, Vol. I, at page 391:—

An action will not lie in this country for the recovery of land situate out of England; and the courts will not adjudicate on questions relating to title or possession of immoveable property out of the jurisdiction………. But the mere fact that the subject-matter on an action is situate beyond the jurisdiction is not necessarily an objection thereto, if the parties are within the jurisdiction, and the relief sought is a judgment of a personal nature. The exceptions to the rule depend on the existence between the parties of some personal obligation arising out of contract, fiduciary relation, fraud, or other conduct which is unconscionable, and do not depend on the locus of the immoveable property………………….

The court also entertains actions for the administration of trusts, or for enforcing charges on land situate abroad, and when necessary has appointed persons to act as receivers in respect of such land, and so accounts may be directed in respect of a partnership business carried on abroad.

See also Lewin on Trusts, Thirteenth Edition, 40 to 43. So much for the text-books.

(b) The Mogambique case itself was solely an action for trespass involving a question of title, but a great deal of ground was covered and a great many matters considered at page 626 occurs the qualifying passage quoted by Page, J. in the case of Goculdas v. Chaganlal:—

In the exercise of its undoubted jurisdiction it may become necessary incidentally to investigate and determine title to foreign land; but it does not seem to me to follow that because such a question may incidentally arise and fall to be adjudicated upon, the Courts possess, or that it is expedient that they should exercise, jurisdiction to try an action founded on a disputed claim of title to foreign lands.

(c) As regards specific decisions, those mainly relied, upon by Page, J. were In re Hawthorne. Graham v. Massey and Deschamps v. Miller, both suits involving title to land abroad which the Courts refused to entertain. These two cases I propose to discuss in dealing with question (iii) “has the principle been correctly applied to the facts in the case of Provas Chandra Sinha v. Ashutosh Mukherji, when I shall compare with them certain English cases in which jurisdiction has been exercised.

(ii) Is clause 12 of the Charter co-extensive with the rules of English law? i.e Is it right to assume that clause 12 of the Charter reproduces and embodies the principles of English law as to jurisdiction.

Page, J. assumed that the framers of the Charter had in mind the doctrine “sanctioned by international comity” [Goculdas v. Chaganlal] and “when prescribing the local limits of the High Courts in India, intended to apply the rule that was followed comitate in other countries” (at page 661). He therefore held that the jurisdiction of this Court is limited in the same way, i.e, by considerations of international law [as between the Canadian Provinces this appears to be the position. See Grey v. Manitoba and North Western Railway Company of Canada].

At the time our Charter was granted there existed in England barriers to jurisdiction less formidable than those of “International Comity” which were not removed until the Judicature Act. As to the origin and nature of “local” and “transitory” actions and the “technical barriers” of venue, see the speech of Lord Herschell in the Mozambique case. At pages 618, line 17, and 619, line 20, the word ‘local’ appears to have been printed by error.

Speaking for myself, I suspect that the nation of ‘legal’ as against ‘transitory’ actions was not entirely absent from the minds of those who drafted clause 12.

Assuming, however, that it was, and that, therefore, we are bound to read into clause 12 of the Charter Page, J.'s principles of “international comity”, I suggest that, in the case of the High Courts, the barrier in question should be maintained at the lowest possible level. No international complications can occur. There is no question of judgments being ineffective. On the Appellate Side there is a superior jurisdiction. There is no difficulty as regards proof of foreign law. Under our law there is no difference between movable and immovable property. Under section 17 of the Civil Procedure Code, the local courts have a wider jurisdiction with regard to land.

For these reasons, I propose to consider only whether a court of equity could have exercised jurisdiction in a case similar to the case of Provas Chandra Sinha v. Ashutosh Mukherji.

(iii) Was the test correctly applied in the case of Provas Chandra Sinha v. Ashutosh Mukherji?

I propose to show or attempt to show that the English courts could have entertained a suit such as the case of Provas Chandra Sinha v. Asutosh Mukherji. With this object, I will first set out in order of date certain English cases of a like or analogous nature wherein jurisdiction was exercised and then, by comparing with them the cases of refusal to exercise jurisdiction [In re Hawthorne. Graham v. Massey and Deschamps v. Miller], to suggest a distinction:—

Harrison v. Gurney. Irish Trust. (See note, Westlake, Seventh Edition, page 227).

Bunbury v. Bunbury. Suit for administration of trusts of land in Demerara. Injunction granted restraining proceedings in Demerara and manager appointed. Page 326: “not an insulated question of title to land in Demerara”.

Tulloch v. Hartley.

Maunder v. Lloyd.

Suit to wind up partnership. Assets land in Haiti.

Ewing v. Orr Ewing.

Read note 24, Dicey, Fifth Edition, page 968, before referring to the report [followed inter alia in Re Lane; Lane v. Robin. Land is Jersey: personalty in England. Administration].

In re Piercy. Whitwham v. Piercy.

English Testator. Land in Sardinia. Trusts of will invalid under Italian law. Whether trustees or children took land as “heirs” according to Italian law. Summons in administration.

Grey v. Manitoba and North Western Railway Company of Canada.

See observations at pages 264, 265, 267.

Re Clinton; Clinton v. Clinton(7).

Testator partner in business consisting of lands on Gold Coast. Widow executrix. Business not clearly disposed of. Executrix and partner both claim. Agreement between executrix and partners for sale by her to latter. Suit by testator's children including heir for a declaration that partners took no beneficial interest in property, declaration agreement void, and administration of real and personal estate.

Point of jurisdiction: “Action maintainable as to leasehold and immovable property so far as vests in executrix”…………… Order without prejudice to any question in reference to any immovable property which devolved directly from testator to heir at law”.

In the above cases the English courts entertained proceedings notwithstanding that the decisions “affected title to foreign land”. I infer, therefore, that in such cases the operation of the decrees or orders was considered to be “mediate”, “incidental” or “indirect”.

Turn now to the cases of refusal.

In re Hawthorne. Graham v. Massey: the facts were as follows:—

Col. H. and his wife Sarah were joint owners of a house in Saxony. By will dated 1851, Col. H. devised his moiety. This will not be executed according to law of Saxony.

By will dated 1875, validly executed under Saxon law, his widow Sarah devised whole house to Charles Stewart H.C.S.H sold house.

Plaintiffs claimed that, according to Saxon law, (a) ¾ of Col. H.'s moiety devolved upon Georgiana (b) C.S.H became Trustee of ¾ of ½ of purchase money for plaintiffs.

Defendants alleged C.S.H to be sole and legal owner of entire house.

In Deschamps v. Miller:—

1831. Marie's marriage contract provided that the marriage should be governed by the “regime dotal” with community of acquired property under the French Law.

1836. Jean D. went to India and went through a form of marriage with Cecilia T.

1865. Jean D. settled upon Cecilia T. lands acquired by him in India (the “foreign country”).

1006. Plaintiff sued trustees of 1865. Settlement substantially for a declaration that the properties settled were governed by the marriage contract, and that as administrator of Marie he was entitled.

At page 863 of the report is the passage in which occurs the statement of exceptions quoted in the textbooks as a proviso to the general rule of jurisdiction.

In both the above cases there was a clash of independent, parallel claims to title. In re Hawthorne. Graham v. Massey: the plaintiffs relied on the devolution of title to land according to Saxon law. The defendants relied on the will of Sarah. In Desehamps v. Miller, the plaintiffs relied on the marriage contract of Marie. The defendants relied upon the settlement of 1865. In neither case were the contestants connected by any one contract between themselves or their predecessors-in-title. There was no priority in this sense nor in the sense that this claim inter se arose out of a disposition of property, and depended upon the true effect of such disposition.

It appears to me, therefore, that both these cases may be regarded as giving rise to “insulated questions of title to land” or in other words cases in which the claims to title fall to be decided otherwise than incidentally, i.e, “directly”.

Before leaving English authorities, one word as to Pike v. Hoare, relied upon as excluding jurisdiction in several of those cited by me. [e.g, British South Africa Company v. Companhia de Mogambique]. At first sight it would appear directly in point. This is not so. An heir-at-law was apparently challenging a will on the ground of want of due execution (see bottom of page 182 to top of 183). He had filed but withdrawn a caveat. He had acquiesced both in the Ecclesiastical Court and in other proceedings. This was a bill in equity to have an issue directed as to the validity of the will. The bill was dismissed on this ground but also “materially on the fact of the lands lying in Pennsylvania”. There is some doubt as to the latter ground for the decision, see editor's note at page 185.

In any event it was not a case of the construction or effect of a will of lands abroad, or of title and I suggest that it can be disregarded.

I had originally intended to omit all reference to Indian authorities, but I think it may be convenient to refer briefly to some which may be compared with the English trust and administration cases above cited.

Bagram v. Moses.

A alleged R to be trustee for A of lands outside the jurisdiction. B alleged that he was trustee for C. Trust deed executed in Calcutta. Trustee in Calcutta. Jurisdiction exercised.

Juggodnmba Dossee v. Puddomoney Dossee.

Religious trust of lands outside jurisdiction, accounts, receiver, scheme. Quite true that main declaration sought was that the plaintiffs were shebâits in the place of other shebâits and that, therefore, no question of beneficial title in dispute, (see pages 322, 328, 338). Jurisdiction exercised.

Delhi and London Bank v. Wordie.

Action to administer trust of land outside—Trustees within jurisdiction—Jurisdiction refused.

M. (14 annas) and L. (2 annas) partners. M. on behalf of both declared trust for creditors. L. (in England) denied authority of M. to deal with L.'s share (p. 257). Common ground 14 annas and two annas inseparable.

This case, therefore, turned on whether a trust had been at all created by a person (2) resident abroad and can on this ground be distinguished.

Nevertheless I consider the decision contrary to Bagram v. Moses, and to indicate a more restricted view of jurisdiction than that of the English courts. Indeed Garth, C.J states categorically that his decision “depends not on the jurisdiction of the equity courts but on the words of the Charter.” Unfortunately the learned-judge introduces into clause 12 the qualifying adverb “substantially.”

Kellie v. Eraser. Winding up of partnership. Assets land outside jurisdiction. Hara Lall Banerjee v. Nitambini Debi*, J.).

Lands outside jurisdiction. Construction of will plus claim to possession (page 320). Jurisdiction refused.

Page 322. Again basis of decision not jurisdiction of court of equity but wording of clause 12, Charter.

Srinivasa Moorthy v. Venkata Varada Aiyangar.

Testator domiciled in Mysore. Land in Mysore, one executor claimed lands as heir (page 259). Jurisdiction exercised by Madras Court. Receiver appointed (page 267). Affirmed.