Indian Courts have jurisdiction to entertain a suit for specific performance against foreigners who never resided in Indian Union at any time after the suit was instituted, as the property is situated within Indian jurisdiction and the Indian Courts have power to enforce the judgment.

( 1 ) THIS is a second appeal on behalf of the defendant No. 3. The plaintiff instituted a suit for specific performance of the contract. The contract is because of the unfortunate incidence of partition of Bengal. Defendants 1 and 2, Respondents 2 and 3 had properties in Indian Union and the plaintiff had properties in Pakistan. There was some arrangement between the parties by which the plaintiff, who had his properties in Pakistan, but migrated to West Bengal, would leave those properties to the defendants 2 and 3, who are Mohammedans, but have properties in Indian Union, and agreed to transfer those properties to the plaintiff. The defendants 2 and 3 have never entered appearance. It also appears that the defendants 2 and 3 later on made another similar arrangement but Oral with defendant No. 1, the appellant. The result is that defendants 2 and 3 made arrangement both with the plaintiff and with the defendant No. 1 and are probably enjoying the properties of both in exchange of their properties in Indian Union. The defendants had properties in Nadia and the question is now whether the plaintiff or the defendant No. 1 is entitled to it.

( 2 ) THE question that was agitated in the Courts below was whether the written agreement, which the plaintiff has proved, is a genuine document or not and both the Courts have held that it is a genuine document.

( 3 ) MR. Syamacharan Mitter on behalf of the defendant No. 3 attacks the judgment not on that ground, because this is a question of fact, which cannot be challenged here. What Mr. Mitter says Is that the transaction was in the nature of exchange and not sale. The consideration is transfer of Indian properties for Pakistan properties. The Court has no jurisdiction over the Pakistan properties. Therefore, no deed of exchange can be executed.

( 4 ) IN that view, we have to consider and construe the agreement between the parties.

( 5 ) THE agreement is in the following words : The two Mohammedan-defendants say to the plaintiff by the document that"we have taken all your Pakistan properties for a sum of Rs. 400/- and we have in part performance of our agreement of sale delivered possession to you of our properties in Indian Union for a sum of Rs. 400. No document can be executed. A document will be executed whenever possible and

about:blankwith regard to that, a Kabala (sale) will be executed for consideration of a sum of Rs. 400. You will also execute a Kabala with respect to your Pakistan properties. Nobody will get any money from other. They will adjust themselves. "the agreement, therefore, really speaks of not one deed of exchange, but two deeds of sale--one with reference to the Nadia properties and the other with reference to Pakistan properties, which wero also in District Nadia as it was before partition. The possession was delivered in terms of agreement of sale. In my opinion, this is an agreement for execution of two documents of sale each to be executed by one in favour of the other. The Courts in India have nothing to do with regard to the properties in Pakistan. The value is fixed by the parties at Rs. 400. All that is contemplated is that the defendants 2 and 3 need not pay that money nor the plaintiff need pay any money. There is no dispute that the defendants 2 and 3 have got the properties of the plaintiff. In that view of the matter, there is no failure of consideration. The question then is whether the Indian Courts have judisdiction to entertain a suit for specific performance against foreigners who never resided in Indian Union at any time after the suit was instituted.

( 6 ) THIS suit for an enforcement of a right by a contract against a person is in substance an action in personam i. e. an 'action brought to establish a claim against some particular persons' (Cheshire ). Section 54 of the Transfer of Property Act says that an agreement to transfer does not create any right or interest in land. It is indeed true that there are some confl