SAILESH KUMAR SINGH Vs. NURSING PANDEY

JUDGEMENT

(1.) In this case an order has been made by Ameer Ali J. that the question of the jurisdiction of the Court be tried as a preliminary issue. The defendant's contention is that the Court has no jurisdiction to entertain the suit because it is a suit for land within the meaning of Clause 12 of the Letters Patent, such land being situated wholly outside the local limits of the territorial jurisdiction of the Original Side. The words "suits for land or other immovable property" in Clause 12 have given rise to a considerable number of divergent decisions in the High Courts of Calcutta, Bombay and Madras which exercise original jurisdiction under their respective Charters. The plaintiff has framed his case in the following manner. In para. 1 of the plaint he states that he is the only son and sole heir of one Ram Kissore Singh, a Hindu governed by the Mitakshara School of Hindu law, who died intestate on 2 February, 1919. He then alleges that many years prior to his death, Ram Kissore Singh separated from his three step-brothers, including the defendant, Nursing Pandey, and thereafter carried on a separate business in the district of Darjeeling and acquired considerable properties out of its profits. In para. 2 he pleads that on the death of Ram Kissore Singh, his property devolved absolutely and exclusively on the plaintiff,, who was then a minor of the age of two years. and that the said properties were taken possession of by the defendant. He goes on to state that in August 1919 the defendant applied to this Court for letters of administration to the estate of Ram Kissore Singh and obtained a grant. Para. 2 concludes with a reference to Schedule A to the plaint in which the particulars of these properties are given. From the schedule it appears that no part of the immovable properties is situated within the jurisdiction of the Original Side. In para. 3 he states that the grant was obtained without notice to the plaintiff who was not properly represented in the proceedings, and he submits that under the grant the defendant acquired no right or title. The succeeding paragraphs safe out various acts of waste and misappropriation with which the plaintiff charges the defendant. Para. 7 is as follows: The plaintiff states that since about the year 1921 there remained nothing further to be done relating to the administration of the said estate and that there were and are no debts or legacies) of the deceased to pay, and that the plaintiff be came entitled to possession thereof. The plaintiff attained majority in the year 1935, and since then called upon the defendant to make over the said estate to him and to render accounts of his dealings but the defendant has not yet done so.

(2.) In para. 9, the plaintiff states that his cause of action arises partly within the jurisdiction of this Court which granted the letters of administration referred to, wherein the defendant took possession of and undertook to administer the estate. He also states that the cause of action arose on or about -the mon March, 1936, when the defendant refused to make over possession of the estate to the plaintiff, or alternatively, on the plaintiff's majority, in or about the mon April, 1935. Para. 8 also alleges that the plain. tiff institutes the suit with leave under Clause 12 of the Letters Patent. There should, strictly speaking, be a prayer that such leave be granted. I am however willing to treat the allegation as the equivalent of a prayer. Leave under Clause 12 has been endorsed on the plaint by the Judges dealing with interlocutory matters.

(3.) The relief prayed is, first, possession of the estate; secondly an account of the defendant's dealings with the estate on the basis of wilful default and neglect; thirdly and alternatively, the removal of the defendant as such administrator, and administration by and under the direction of the Court; fourthly, discovery and all necessary enquiries and directions; fifthly, accounts; sixthly, damages; seventhly, a Receiver; eighthly, mesne profits; and ninthly, costs. The plaintiff maintains that this suit is an administration suit and accordingly not a suit for land within the [meaning of Clause 12. That an administration suit is not a suit for land, is a proposition which is supported by authority. In P.M.A. Vellippa Chettiar V/s. Sana Govinda Dass (1929) 16 AIR Mad 721 a Full Bench of the Madras High Court held a purchaser's suit for specific performance of a contract for the sale of land outside Madras made in Madras, by parties resident therein, is not a suit for land, within the meaning of Clause 12 of the Letters Patent. The decision is at variance with decisions of this Court, and I merely mention it in order to refer to certain obiter dicta of Venkatasubba Rao J. at p. 823, where he says: Some Judges have construed the words as meaning suite relating to or concerning the land. It seems to me that this construction, at any rate, is no longer open to the Indian Courts, having regard to two decisions of Privy Council, which must be deemed to have held that administration suits are not suits for land.