Unlike
the other cases described in this
Chapter, the interest of this Full Bench Case is mainly, if not wholly,
legal. It deals with a pure point of law
of exceptional difficulty, over which the Indian High Courts, and even
judges of the same High Court, have held divergent views. Its
general interest lies in the fact that it is one of those rare cases,
where the legal position laid down by one Full Bench was reviewed and
reversed by another and Fuller Bench of the same High Court, within a
short time after the first case. Curiously enough, although suits
involving this particular point of law
have frequently arisen in Indian High Courts, the point does not appear
to have been debated before the Judicial Committee of the Privy Council
and decided by them, so as to give a quietus to the controversy.
Probably
no three words in legal literature have caused so much difficulty and
confusion among judges and lawyers as the words, "suit for land" in
Clause 12 of the Letters Patent. So far as Bombay is concerned,
the trend of decisions from early times was somewhat hastily disturbed
by Sir Norman Macleod about 1925. His Full Bench consisted of
only three judges, and as usual,
the Chief Justice dominated his colleagues with the result that the
decision
in reality represented the opinion of a single judge on a point of
great
importance and difficulty. The second Full Bench consisted of
seven
judges, and had the advantage of the law point being argued by two of
the
ablest and most erudite lawyers of the time. Marten C.J. who presided
at
the later Full Bench, was admittedly a very great lawyer with a
comprehensive
knowledge of legal principles and of case law. His judgment is
certainly
more elaborate, more comprehensive, and on the whole more satisfactory
than
the previous Full Bench judgment. The remaining six judges also
gave
separate concurring or dissentient judgments.
In November 1913, Hatimbhai (defendant) deposited with F. E. Dinshaw (plaintiff) title deeds of his immoveable property at Poona with intent to create an equitable mortgage in the plaintiff's favour, to secure repayment of Rs. 30,000 due to the plaintiff. The defendant failed to pay the mortgage amount; and the plaintiff sued the defendant for recovery of the amount. By consent, a preliminary decree for sale was passed on 4-6-1925. On 10-12-1925 the plaintiff applied before. Taraporewala J. for a final decree. On the authority of the judgment of the Full Bench (Macleod C.J., Crump and Coyajee JJ.) in India Spinning & Weaving Co. Ltd. v. Climax Industrial Syndicate, 27 Bombay Law Reporter, 1981, the defendant contended that the preliminary decree was a nullity as the High Court had no jurisdiction, the property being situate outside the court's jurisdiction. The court had no jurisdiction to pass a final decree either. Taraporewalla J. held that so long as the preliminary decree was not set aside, he was bound to pass the final mortgage decree, remarking that the trend of the decisions of the court was in favour of the view that the High Court had jurisdiction. The appeal came on before Marten C.J. and Kemp J. In view of the conflict of authorities, they decided that the matter be referred to a larger Bench. Five questions were referred to a Full Bench of seven judges constituted later - (1) Whether a suit brought by a mortgage of land to enforce his mortgage by sale is "a suit for land" within the meaning of cl. 12 of the Letters Patent? (2) Whether a suit by a mortgage of land to enforce his mortgage by sale can be maintained in this Court either under cl. 12 of the Letters Patent or under the Equity Jurisdiction of this Court when the mortgaged land is situate wholly outside the limits of the Ordinary Original Civil Jurisdiction of this Court, but the defendant dwells or carries on business or personally works for gain within the limits of such jurisdiction at the commencement of the suit? (3) Whether such a suit can be maintained under cl. 12 of the Letters Patent or under the Equity Jurisdiction of this Court, if the mortgaged property is situate wholly outside the limits of the Ordinary Original Civil Jurisdiction of this Court, and the defendant does not at the commencement of the suit dwell or carryon business or personally work for gain within such limits, but the cause of action has arisen wholly, or, in case the leave of the Court shall have been first obtained, in part, within the said limits? (4) Where a mortgage of land situate wholly outside the said limits has obtained a preliminary decree for sale in this Court, and such decree has not been appealed from, can the mortgagor defendant object to a final decree absolute being passed pursuant to the preliminary decree on the ground that the Court had no jurisdiction under cl. 12 of the Letters Patent or otherwise to hear and maintain the suit? (5) Whether a final decree for sale of land situate outside the said limits passed by this Court in a mortgagee's suit to enforce his mortgage can be challenged by independent proceedings on the ground that such decree was a nullity? Shah J. was in the original Bench of seven judges. Due to his sudden death during the hearing of the case, a fresh Full Bench was constituted and the case was reargued. The main issue before the court was as to the interpretation of clause 12 of the Letters Patent: "the High Court shall be empowered to determine suits of every description, if, in the case of 'suits for land', or other immoveable property, such land or property shall be situated, or in all other cases, if the cause of action thereof has arisen either wholly, or, in the case the leave of the court shall have first been obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell or carryon business or personally work for gain within such limits. "About 100 authorities were cited before the court in the course of the hearing. By a majority of five to two (Fawcett and Mirza JJ. dissenting), the questions were answered as under: (1) No. (2) Yes. (3) Yes. (4) Unnecessary. (5) - do Marten C.J., delivering the leading judgment on the question as to what was the true nature of a suit to enforce a mortgage by sale, observed that a mortgage consisted of a debt and a security. A suit to enforce that security necessarily, related to both the debt and the security. "The debt is regarded as the primary and the security as the secondary element. All that the mortgagee is absolutely entitled to is his money. If he gets the money, he must restore the security; for, his interest in the security is always subject to redemption." He relied on the following passage from Halsbury: "Incident to every mortgage is the right of the debtor to redeem which continues notwithstanding the mortgagor fails to pay his debt in accordance with the proviso for redemption. So long as the equity of redemption is not released, or foreclosed or extinguished by lapse of time, the mortgagee's interest continues to be personal estate, notwithstanding that he may have entered into possession." It made no difference that the decree may enable the purchaser to be put in possession of land-it is the purchaser who gets possession, not the mortgagee. He, therefore, held that a suit to enforce a mortgage by sale is primarily a suit to obtain payment of a mortgage debt, and not a suit to get the land. The second question was, what was the construction of the expression "suit for land ". The strict view was it meant recovery or delivery of land, and the wider view was that it meant suits relating to or concerning land. Marten C.J. observed that he preferred the view that the words "suit for land" referred to suits to obtain or recover land, examples being a suit for damages for trespass to land, the substantial question being the right to the land; or a suit for declaration of title to land and injunction, which is in substance an action for land although the plaintiff does not formally seek a writ of possession. Examples of suits not for land were also given: (1) a vendor's suit for specific performance of sale of land; (2) an administration suit, though it may relate to land, its primary object being to administer the estate of the deceased; (3) a breach of trust case, though the property in dispute which is claimed by the trustee as belonging to him, is outside the jurisdiction of the court. The Chief Justice concluded, "Just as the primary element in a mortgage is the debt and not the security, the substantial object of a mortgage suit is the payment of the debt, sale being merely an ancillary factor. Hence a mortgage suit was not a suit for land within clause 12 of the Letters Patent." The majority went to the further extent of saying that even if this was a suit for land, the High Court still had jurisdiction by reason of the fact that the defendant dwelt and carried on business within the limits of the jurisdiction of the court. This conclusion was based on the construction that the clause "or if the defendant. . . shall dwell or carry on business or personally work for gain within such limits" was a separate alternative and not dependent on the earlier alternative beginning with the words" or in all other cases ". In the end, the Chief Justice suggested the advisability of the Letters Patent being amended in such a way as to put at rest the controversies on the true construction of clause 12. It was not right that the people in Bombay should be left in doubt as to their ordinary legal remedies; nor should titles to lands be left to depend on the capricious construction of ill drawn enactments such as clause 12 of the Letters Patent by different judges. The situation actually arose, when by its judgment delivered on 26th August 1935, the Nagpur Chief Court refused to recognize the validity of a decree passed by the Bombay High Court under the ruling of the Full Bench. The Nagpur judges being of the opposite view went to the extreme length of treating the solemn decree of the Bombay High Court as a mere nullity, having been passed by a court without jurisdiction. However, in the words of the Chief Justice Page, "it is against public policy and good sense alike ", for a Court in India to take up such an attitude in relation to a solemn decree passed by a High Court, which, according to the law as laid down in that High Court, was perfectly valid. The Nagpur High Court had no right to sit in judgment aver a decree aver which they had no appellate jurisdiction and declare it null and void. It had no jurisdiction over the decrees of another High Court; and judicial comity between courts of co-ordinate jurisdiction demanded that it should respect the decree while it stood and give effect to it. The matter caused public agitation in Bombay, and was debated in the press. A leader in a Bombay paper, condemning in severe terms the attitude of the Nagpur Court, ultimately led to the passing of the Decrees and Orders Validating Act, 1936, which provided that no decree passed or order made by the High Courts of Calcutta, Madras and Bombay in exercise of their ordinary original civil jurisdiction under Clause 12 of their Letters Patent, and by the High Court of Rangoon under Clause 10 of its Letters Patent, shall be called in question an the ground that these High Courts had no jurisdiction to pass such decree or make such order. The judgment of the Chief Court of Nagpur was nullified in terms sufficiently remarkable to be quoted in full: "Where in any proceedings concluded On or after the 26th day of August 1935, any such decree or order has been found to be invalid on such ground (that is, the ground mentioned above) by any court, such finding shall be void and of no effect. .. " * * * * *
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