The jurisdiction of a court to entertain a suit for the administration of a foreign charity and for removal of trustees and appointment of new trustees depends solely on the existence or otherwise of property which is the subject-matter of the trust within its jurisdiction, and not on other considerations such as the residence of the defendants or the cause of action arising within the jurisdiction.

JUDGMENT : - (After setting out the contentions of the parties, his Lordship proceeded:) Now at the date when the suit was filed the defendants were nationals of what then was British India and resided in the British Indian territory, but since the partition of India defendants Nos.1 to 9 have been residents of territory which is beyond the territory of the Union of India, and I will assume for the purpose of argument that defendants Nos.1 to 9 are not residents of the Union of India and may be regarded as non-resident foreigners qua this Court. Again, when the suit was filed some of the properties belonging to the institution were in British India and some were outside British India.

Even though the charity was outside the country, the trustees were residing in British India and the management of the trust was also carried on in British India. Since the suit was filed, however, the position of the parties qua this Court has been fundamentally altered. Not only is the charity a foreign charity in the sense that the benefit which was available to the pilgrims when visiting Iraq, was to be obtained by them outside the limits of British India, but even the trustees who are administering the trust are not residents of the territory where the writ of the State under which the Court functions continues to run.

The effect of the change is of far-reaching importance to the constitution of the suit. As I will hereafter advert, this Court at the date when the suit was instituted have been in a position to grant directions to defendants Nos.1 to 9 in personam, and if the plaintiffs case was established, those directions might have been enforced by directing the defendants personally to comply with the orders, but since partition this Court is incompetent to issue even personal directions against the trustees.

The defendants have not made this submission in their written statement and have not expressly claimed that this Court is incompetent to proceed with the suit on the ground that the reliefs claimed against them are not capable of being granted by this Court, because they are non-resident foreigners, and that the claim is made by the plaintiffs in respect of a foreign charity. However, even without a formal amendment the argument has been permitted to be raised that the Court is incompetent to try the suit when the defendants are non-resident foreigners and the charity in respect of which a claim for administration is made is a foreign charity.

2. Now, some of the properties of the institution, which for the purpose of the present argument I assume is a public trust of a religious or charitable nature, are within the limits of the ordinary original jurisdiction of this Court. It appears, however, that there are several other properties of the institution which are situate outside the limits of the ordinary original jurisdiction of this Court and some are even outside the territory of the Indian Union, and possibly those properties constitute the bulk of the property of the institution.

The question that arises then for decision is: Is this Court competent to entertain a suit for the administration of a charity and for removal of trustees and for appointment of new trustees, when the charity is to all intents and purposes a foreign charity, the management of the charity is carried on in a foreign territory and the trustees are non-resident foreigners, merely because some of the properties which belong to the charity are situate within the territorial jurisdiction of this Court and its income is collected and is required to be applied for purposes of the charity. For the decision of this question I have omitted from consideration the state of things which prevailed when the suit was filed and I have taken into consideration the state of things which exists when this issue as to juridiction is sought to be argued.

It is obvious that even if this Court had jurisdiction to entertain the suit as filed, if by reason of subsequent events