P.B. Mukherjee, J.
1. This is a suit by the plaintiff on a mortgage dated 12th March 1932 asking for a mortgage decree in Form No. 5 of the Appendix D to the First Schedule to the Code of Civil Procedure. This suit was filed after obtaining leave under clause 12 of the Letters Patent. The defendants are mortgagors including their legal representatives and heirs.
2. The only issue raised before me on behalf of the defendants is one of jurisdiction. It is said by the defendants that all other properties are zamindary properties situated in the district of Mymensingh outside the original jurisdiction of the High Court and that l/48th undivided share of premises No. 20, Garanhatta Street is the only Calcutta property by which jurisdiction is intended to be found in the High Court. On the basis of the very well-known decisions of the Judicial Committee of the Privy Council in 'Collector of Gorakhpur v. Ram Sundar Mal', 61 I. A. 286 and 'Venkata Rama Rao v. Sobhanadri Appa Rao', 63 I. A. 169 and one of the Court of Appeal of this Court in 'Premsukh Mahato v. Mangalchand', 41 C. W. N. 854, it is urged that there is no jurisdiction to entertain this suit.
3. Mr. P. C. Basu appearing on behalf of the defendants has raised the following issue. Has the Court jurisdiction to entertain this suit and should leave under Clause 12 of the Letters Patent be revoked
4. Mr. Basu argued that if I am against the defendants on this question of jurisdiction then the further issue will be what amount was actually advanced on the mortgage
5. The onus being on the defendants evidence was first given on their behalf. Defendant Mahendranath Bhaduri gave evidence. According to his evidence the Calcutta property namely l/48th undivided share in No. 20, Garanhatta Street was purchased on the very same day as the mortgage was executed. The conveyance purports to be from one Debeswar Mukherji. It is marked Ex. 1 in this suit. In the conveyance the plaintiff mortgagee Nanilal Roy acted as Solicitor and the conveyance was prepared by him at his office. Mr. Bhaduri's evidence is that the defendants had never had any Calcutta properties within the jurisdiction of this Court and in answer to questions 20 to 22 he said that this property was included for the purpose of creating jurisdiction of this Court. On behalf of the defendants no one was instructed to buy this Calcutta property (Q. 29)). It was the plaintiff mortgagee who suggested the inclusion of Calcutta property (Q. 32). In fact Mr. Bhaduri's evidence is that he has never seen this Calcutta property except only two months ago. He never saw it at the time of the purchase, never saw it at the time of the mortgage and his definite evidence is that although these 17 years elapsed since the mortgage this property was never seen by him and he saw it only two months ago and only after the institution of this suit. (Qs. 33-38). According to his evidence none of the defendants has seen this Calcutta property.
6. The evidence of Mr. Bhaduri is that a price of Rs. 600/- was supposed to have been paid by the defendants for the purchase of this undivided l/48th share of premises No. 20, Garanhatta Street. This money however was not paid by the defendant out of their own pocket but came out of the very loan which was being advanced by the plaintiffs (Qs. 47-49). His answer to Q. 57 makes it clear that this particular fraction or portion namely the undivided 1/48th parti of No. 20, Garanhatta Street was not capable of any use and enjoyment by the defendants and it was put there in the mortgage deed to create jurisdiction. Nothing has been done in my opinion in cross-examination of this witness to challenge these facts as stated by Mr. Bhaduri.
7. On behalf of the plaintiff one Ramendra Krishna Talukdar has been called as a witness and no one among the plaintiffs has come for-ward to give evidence to challenge the testimony of Mr. Bhaduri who had definitely said that he had talks with among others plaintiff Nanilal Roy. This witness Ramendra Krishna Talukdar described himself as a constituted attorney for the plaintiffs and as having been their cashier in the year 1932 when the mortgage was executed.
8. This witness on behalf of the defendants has in my view not challenged any of the facts on which Mr. Bhaduri has given evidence. He was anxious at first to suggest that this Calcutta property was included for the purpose of security or the mortgage but in answers to this Court he admitted that it was for the purpose of creating jurisdiction. He had to admit that in a loan of Rs. 75,000/- an undivided l/48th in faction of a Calcutta property which is supposed to be barely worth Rs. 600/- could hardly be the reason for being included in the mortgage deed for the purpose of security. He has not challenged the fact that the effective and real security for their loan of Rs. 75,000/- was the Zamindary property situated outside the original jurisdiction of this Court.
9. I have not been impressed by the way and the method in which he answered the questions. He was anxious to 'conceal facts from the Court and it is only upon repeated questions that he would come forward with the proper answers. One fact however emerges from his evidence and that is the custody of the conveyance by which Debeswar Mukharji is supposed to have sold this undivided l/48th share of 20 Garanhatta Street to the defendants. Curiously enough this document has come from the custody and possession of the plaintiffs. In fact, even, the conveyance, dated the 25th August, 1928, showing the title of Debeswar Mukharji to l/12th share in No. 20 Garanhatta Street, has also been produced from the possession and custody of the plaintiffs. That conveyance is marked as Ex. 3. Plaintiff Nanilal Roy who is a practising Solicitor of this Court has not come forward to challenge the testimony of Defendant Mahendra Nath Bhaduri, or even to explain the custody and possession of these two conveyances.
10. I have no hesitation in accepting Mr. Bhaduri's evidence on all points and equally I have no hesitation in rejecting the testimony of Ramendra Krishna Talukdar for the reasons which I have already stated.
11. It appears from Ex. 1, which is the conveyance, dated 12th March 1932, supposed to be from Debeswar Mukharji to the defendants that premises No. 20 Garanhatta Street is described in the schedule to contain an area of only 2 cottahs and 11 chataks. Mr. Bhaduri's evidence is it has a frontage of hardly 15' ft. It does not require a lot of imagination to find out as to what will be the l/48th fraction of such a house particularly if one would exclude on a partition by 'metes' and bounds the common passages and boundary walls.
12. Mr. K. L. Roy who has appeared for the plaintiffs in this case has drawn my attention to the decision of Mr. Justice McNair in 'Hrishi Kesh Banerjee v. Jitendra Nath Roy', 43 C W N 365, and has argued before me that it is immaterial that the value of 0the area of the Calcutta property is comparatively small and that the mortgagee had not hitherto availed himself of its potentialities. In my judgment that decision does not help Mr. Roy. There McNair, J., made it quite clear that such property must not only have an intrinsic value but capable of use and enjoyment. In the case before that Learned Judge it was a specific plot, being plot No. 8, which on the evidence it was found to be an enclosed and padlocked land and which was in fact being used for certain specific purpose of stacking bamboos. The ratio of that decision is at page 370 when McNair, J., says:-
'In each case it must be a question of fact whether the property, ostensibly included for the purpose of giving the Calcutta Court jurisdiction, was in fact a real property and an effective portion of the security.'
On tine facts of this case I have no hesitation in holding that this undivided 1/48th fraction of 20 Garanhatta Street, of which the purchasers knew nothing about until two months ago, was not an effective part of the security and was not capable of use and enjoyment.
13. Mr. P. C. Basu, learned counsel for the defendants has based his arguments on certain facts which may conveniently be summarized at this stage. They are: (1) The Calcutta property is only an undivided l/48th part of a small premises containing hardly an area of 2 cottahs 11 chattaks with a frontage of only 15' to 16' ft. (2) The purchase was made on the same day as the date of the mortgage, which shows that it was obviously purchased to be included in the mortgage deed to create jurisdiction of this Court. (3) That the advance or the loan was for Rs. 75,000/- and therefore this undivided l/48th share which was barely worth 1 Rs. 600/-, could not possibly by any stretch of imagination be considered an effective part of the security for Rs. 75,000/. (4) The conveyance by which the defendants are supposed to purchase this undivided l/48th share in 20 Garanhatta Street was not with the purchaser but was in the custody and possession of the plaintiff mortgagees. Mr. Basu argues why should this conveyance be in the custody of the plaintiffs. This was not a case of a mortgage by deposit of title deeds but was a registered mortgage. He also points out to the fact that the original title deed of Debeswar Mukharji, dated 25th August, 1928, which is marked as Ex. 3 in this suit, has also come of the possession and custody of the plaintiffs. On that basis Mr. Basu has argued that really Debeswar Mukharji was a mere demander and the property belonged to the plaintiffs themselves. No explanation has been given by and on behalf of the plaintiffs as to how they came to have in their possession and custody the title deeds belonging to Debeswar Mukharji. I have no hesitation in rejecting the explanation offered by the witness Ramendra Krishna Talukdar. Oh this point it is significant that Plaintiff Nana Lall Roy has not given evidence to explain such custody and possession. (5) The admission in the evidence of the plaintiffs' witness R. K. Talukdar that this property was included only for the purpose of jurisdiction and not really for the purpose of security for Rs. 75,000/-. (6) Not one of the plaintiffs has been called to give evidence in this case although defendant Bhaduri had definitely said in a number of questions that everything was done in this transaction by plain-tiff N. L. Roy, who is a practising solicitor of this Court, and particularly when this plaintiff N. L. Roy acted as the Solicitor for the defendants in the conveyance by which the defendants purported to purchase the undivided l/48th share in 20 Garanhatta Street. One of the original, mortgagees Khirod Lal Roy was also a solicitor,
14. On these facts Mr. Basu argues that this Calcutta property was purely a notional property and this Court has no jurisdiction to entertain this suit and leave under clause 12 of the Letters Patent should be revoked. Mr. Basu has relied on the decision of 'Premsukh Mahata v. Mangal Chand Maioo', 41 C W N 854, which is a decision by the Court of Appeal of Costello and Panck ridge, JJ., and that decision of the Court of Appeal also refers to the two decisions of the Judicial Committee of the Privy Council, report-ed in 61 I A 286 and 63 I A 169 Costello, J. at p, 863 of the report says as follows:
'What we are really concerned with here, for the purpose of determining whether or not this High Court has jurisdiction to deal with the November mortgage, is whether there was a real inclusion amongst the properties given as security for the loan, any land or interest in land situated or existed within the territorial jurisdiction of this Court. Leave to institute the suit out of which this appeal arises was given under the provisions of Clause 12 of the Letters Patent which provides, so far as is material for present purposes, that the High Court of Judicature at Port William in Bengal in the exercise of its Ordinary Original Civil Jurisdiction .shall be empowered to receive, try, and determine suit of every description, if, in the case of suits for land or other immovable property such land or property shall be situated or in case the leave of the Court shall have been first obtained, in part, within the local limits of the Ordinary Original Jurisdiction of the said High Court we have to-ascertain and determine whether in the present case there was any land comprised in the mortgage which either wholly or in part was within the limits of the Ordinary Original jurisdiction of this Court.'
15. That was how the problem was raised and the question was formulated by Costello, J., in the Court of Appeal, and in deciding that question Costello, J., observed as follows at pp. 863-864:
'It is the duty of the Court to ascertain whether it was really the intention of the parties that the interest in land which is said to have founded jurisdiction should be an effective part of the security given in the mortgage.' On the evidence I have no hesitation in holding, as a matter of fact that this l/48th undivided share in 20 Garanhatta Street was not intended to be an 'effective' part of the security given in the mortgage in this suit. Where the loan was for 75,000/- as shown in the Mortgage deed; and where all the effective and valuable security namely each and every item of the Zamindary property which formed the real and effective security for the loan was situated outside the original jurisdiction of this Court. Costello,. J., at page 865 further observes as follows:
'I am bound to say that I find myself quite at a loss to understand how the learned Judge should have thought that the case in '61 I A 886 is any authority for saying that one could confer jurisdiction by a mere notional inclusion of a. property, i.e., inclusion for the purpose of arranging jurisdiction and not for any other purpose.' That is exactly what has been done in this case by the parties. Defendant Bhaduri has said thatit was included only for the purpose of jurisdiction and I find that even the plaintiffs' witness Ramendra Krishna Talukdar who came to say something different, in fact admitted that to be true.
16. I cannot but in this connection also refer to the observations of Panckridge J. in the Court of Appeal at p. 868:
'It is true that the respondent was not willing to make further advances unless Calcutta property was included in the mortgage. But this was not on account of any misgivings as to the sufficiency of the old security but because he supposed that an infinitesimal undivided share in a Calcutta property would enable him to enforce his mortgage in the High Court. It cannot by any stretch of the imagination be said that he contemplated any effective 'use' of the property for the purpose for. which it was ostensibly made the subject of the mortgage deed'.
17. In my judgment the principle by which the Court's jurisdiction is to be decided in these cases should be stated clearly. That principle is that if the property which is supposed to confer jurisdiction to this Court is a 'fictitious' property, this Court undoubtedly has no jurisdiction. This principle has been further extended by the doctrine of 'notional' property. This extension means that even where some property is within the original jurisdiction of this Court, if the nature and character of such property do not satisfy the two objective tests of (i) being an 'effective' part of the security and (ii) being capable of use and enjoyment, then also this Court has no jurisdiction. Superadded to these tests there is a subjective test which requires that the real intention of the parties to include the questioned property was not for the purpose of creating jurisdiction of the Court but for the purpose of security or mortgage. The foundation for these principles is that the Court should be enabled to find out the reality of the transaction and its true nature. If the Calcutta property is not an 'effective' part of the security and incapable of being effectively 'used and enjoyed' and if the property was intended not for security which is the essence and reality of a mortgage transaction but only as a mere device and act of parties to create jurisdiction for this Court, then the inclusion of such property in the mortgage deed does not confer jurisdiction on this Court to entertain a mortgage suit based on such a mortgage.
17a. On the facts of this case I hold that the undivided l/48th fraction of the Calcutta property was not an effective part of the security in this case and cannot be effectively used and enjoyed and was only included for the purpose of creating jurisdiction in this Court. I therefore hold that the plaintiffs have failed on all these tests and I hold that this Court has no jurisdiction to entertain and try this suit. Leave under clause 12 of the Letters Patent is therefore revoked. As I hold this Court has no jurisdiction the other issue raised by Mr. Basu does not arise for determination here.
18. The suit fails for want of jurisdiction and is dismissed with costs.