JUDGMENT
This is an appeal from the judgment of Moore, J., dismissing the suit for want of jurisdiction on the ground that it was a suit for land outside the limits of the jurisdiction of the High Court and refusing to give the plaintiffs leave to amend their plaint by omitting therefrom so much as related to land outside the jurisdiction.
The first defendant is the son of one T. Meerudeen Sahib and uncle of the plaintiffs. The plaintiffs allege that the first defendant has made himself executor de son tort of their father's estate. They ask that accounts may be taken of the estates of their father and of their grandfather T Meerudeen Sahib and for the administration of these estates by the Court. They also ask that they may be put in possession of their shares in these estates. The plaint alleges that the property, of which they claim a share, consists of the capital and profits in certain businesses in Madras and of a house and land which have been described as the family house situated at Vaniyambadi and another house and land also situated at Vaniyambadi bought out of monies realized by the sale of T. Meerudeen Sahib's estate. As regards the family house the plaint alleges an agreement between the first defendant and his brother the second defendant that the latter should receive a lump sum in cash and the house and land in satisfaction of his claims against the estate of T. Meerudeen Sahib. If the plaintiffs are entitled, as they allege, to a share of T. Meerudeen Sahib's estate, it is clear that this arrangement is not binding on them.
We are of opinion that the present suit is a suit “for land or other immoveable property within the meaning of article 12 of the Letters Patent in so far as it claims a share of the houses and lands outside the jurisdiction. The plaintiffs claim to be put in possession of certain properties and the plaint alleges that these properties consist in part of land. The fact that the estates of which they claim a share consist in part of moveable property does not make the suit any the less a suit for land in so far as it is a suit in which a share of houses and lands outside the jurisdiction is claimed. The present case is clearly distinguishable from the case in Shamanna v. Krishna Ayyangar to which our attention has been called. In that case the claim with regard to the land outside the jurisdiction was merely auxiliary and incidental to the main relief claimed and for relief could be given in the suit without having recourse to the land out of the jurisdiction. The present case is also distinguishable from the case in ??? Dassi v. Nundo Lall Bose. In that case an administration action was brought against the executors of a will charging them with mal-administration and asking that certain leases of land outside the jurisdiction which had been granted by the executors to themselves might be set aside. In that case there was no question as to the title to the property. The suit then, as Stanley, T., puts it (page 921), was merely “to have (the) property administered under the direction of the Court and for this purpose if it be found that the trustees or executors have been guilty of mis-appropriation of assets or mal-administration of the estate to compel them personally to make amends.” This does not turn the suit into one for the recovery of immoveable property. Conversely, it may be said that the prayer in the plaint in the suit before us that the estates may be administered by the Court in order that the amount of the plaintiff's shares in the property may be ascertained, with a view to their shares being handed over to them by the first defendant does not turn this suit into an administration suit. In a case of Hara Lall Banerjee v. Nitambini Debi*, a suit for a declaration that the plaintiff was entitled to possession of properties moveable and immoveable, the latter being wholly situated outside the jurisdiction, for the construction of a will, and for an account and for administration of the testator's estate, was held to be a suit for land.
The further question remains—ought leave to amend the plaint to have been given? If the Court has jurisdiction to try the suit except in so far as it is a suit for land outside the jurisdiction, we think that the suit ought only to be dismissed in so far as it relates to land outside the jurisdiction, or that leave to amend the plaint by omitting therefrom so much as related to land outside the jurisdiction ought to be given. The learned Judge was disposed to hold—though he did not refuse the application for leave to amend upon this ground—that it was not open to the Court to decree a partition of the moveable property within the jurisdiction while declining jurisdiction as to the immoveable property outside the jurisdiction. We do not take this view.
In the case in Seshagiri Rau v. Rama Rau where the suit was for a partition of moveable property within the jurisdiction and land outside the jurisdiction leave under article 12 having been obtained, the objection that the Court had no jurisdiction to try the suit was upheld only as regards the land outside the jurisdiction. In the case of Jairam Narayan Raje v. Atmaram Narayan Raje the suit was of a similar character and it was dismissed as regards the land outside the jurisdiction only. In the latter case the observations of West, J., to which Moore, J., refers in his judgment were made with reference to the question whether leave to sue could properly be given, not with reference to the question whether the Court had jurisdiction as regards the property within the local limits of the jurisdiction. This is clear from the fact that the Court allowed the case to proceed with reference to the moveable property within the limits of the jurisdiction. Seeing that in both these cases, although the point does not appear to have been argued, the suit was only dismissed as regards the land outside the jurisdiction, it must he taken that the learned Judges were of opinion that the Court had jurisdiction as regards the moveable property within the jurisdiction. The fact that in these cases leave was obtained is immaterial. The leave, of course, was applied for and granted upon the assumption which was not well founded, that leave could properly he given when the land lay wholly outside the jurisdiction. If in the present suit the amendment asked for is made, the suit becomes one for which leave is not necessary and under the decisions, which are uniform on this point, leave cannot he given.
In Balaram v. Ramchandra the same view was taken as that adopted in the two cases above referred to and the case was allowed to proceed as regards the property within the jurisdiction. In the last-named case the property within the jurisdiction was land and the suit was dismissed as regards the land out of the jurisdiction on the ground that leave to sue had not been obtained.
But the point was taken in argument that as the suit was a suit for partition, it must include all the property alleged to be liable to partition and as it could not he so framed without the leave of the Court having been first obtained, the suit was in its inception bad and should be dismissed. The Court, however, after reviewing the authorities upon the question, held that the suit could proceed as regards the property within the jurisdiction. The fact that in this case the property within the jurisdiction was land, whilst in the case before us the property within the jurisdiction is moveable property makes no difference so far as the construction of article 12 of the Letters Patent is concerned.
The cases in Subba Rau v. Rama Rau and Pattaravy Mudali v. Audimula Mudali are authorities in support of the view that in a suit for partition the fact that a portion of the common property lies outside the jurisdiction of the Court in which the suit was brought does not in itself bar the maintenance of the suit. If for the purpose of doing complete justice between the parties it is necessary that a suit should be stayed pending the institution of a suit in the Court within whose jurisdiction the immoveble property is situate, that course might be adopted. Whether this course should be adopted would depend upon the facts of the particular case. On the materials before us it does not appear that any such course is necessary for the purpose of doing complete justice between the parties in the present case.
We must therefore set aside the decree of the learned Judge in so far as it relates to the claim of the plaintiffs in respect of property other than the land outside the jurisdiction and direct that the suit be restored in so far as it relates to the moveable property within the limits of the jurisdiction. In this view it is unnecessary to make any order on the application for leave to amend the plaint. Costs before Moore, J., and in this Court will be costs in the cause.
Messrs Branson & Branson, attorney for appellants.
Mr. James Short, attorney for respondents.