Chagla, C.J.

(1) This appeal raises a very interesting and important question as to the jurisdiction of this Court. Mr. Justice Shah took the view that this Court had no jurisdiction to try the plaintiffs suit, and on that ground he dismissed it. It is from that order of dismissal that the plaintiff has come in appeal before us.

(2) A preliminary observation may be not out of place as to the manner in which issues as to jurisdiction should be tried. Mr. M. V. Desai has made a grievance that the learned Judge took the view that an issue with regard to jurisdiction is always an issue of law and must be tried as a preliminary issue. I do not think that this grievance is fully justified. As I read the judgment, the learned Judge has tried this issue as an issue of law because, for the purpose of his decision, he has assumed that all the facts averred by the plaintiff in his plaint are proved, and, therefore, this issue has been tried on a demurrer.

Now, it is open to a Court to take the view that, even if the plaintiff were to establish all the facts alleged by him the Court would have no jurisdiction. In that view of the matter, a preliminary issue on a demurrer will arise, and that would undoubtedly be an issue of law. But there may be a case where an issue as to jurisdiction would require leading of some evidence, in which case an issue of jurisdiction would raise a mixed question of law and fact. Such an issue may be tried as a preliminary issue, or it may be tried as an issue along with other issues. This would depend upon whether the evidence with regard to jurisdiction could be separated from the evidence on other, issues. Therefore, it would not be correct to say that in all cases an issue as to jurisdiction is necessarily an issue of law. This position is made perfectly clear in the judgment of Sir Beaumont in SOWKABAI v. SIB TUKOJIRAO HOLKAR, 34 Bom L R 6.

(3) One Ramlal died in 1881, leaving two sons Gan-patrai and Ishwardas. The plaintiff and defendants Nos. 7, 8 and 9 represent the branch of Gan-patrai, and defendants Nos. 1 to 6 represent the branch of Ishwardas. The plaintiff attained majority on October 26, 1937, and he executed a writing on April 15, 1944, which is annexed as Ex. C to the plaint. It is in the nature of a release, and it provides that, on the plaintiff being paid a certain amount, he releases his right, title and Interest in certain properties mentioned in the document. The plaintiff alleges that his signature to that document was obtained by misrepresentation and undue influence, and he challenges the document on those among other grounds.

He further contends that various properties mentioned in Exhibit E to the plaint are joint family properties in which he is interested as a coparcener, and that, as a matter of fact, only some of these properties were dealt with by the release, Exhibit C. By this suit he wants a declaration that the document, Exhibit C, is void and inoperative and did not affect the rights of any parties thereto, and he asks for a cancellation of that document; and he wants a partition of the properties mentioned in Exhibit E as being joint family properties. The properties mentioned in Ex. E are both movable and immovable properties. And the question that we have to consider is whether this Court has jurisdiction to try and dispose of a suit of the nature filed by the plaintiff. It may be stated that none of the defendants reside within jurisdiction.

(4) It is not seriously disputed by Mr. M. V. Desai -- in fact, he made a concession to that effect before the learned Judge below -- that the suit is primarily a suit for partition. The relief with regard to the cancellation of the document, Ex. C, is only incorporated in the plaint in order to remove the impediment which the plaintiff would have before he could get a partition which he seeks. If he did not ask the Court to declare this document void, he would be confronted with this release which he had executed. And so long as