Bakewell, J - (1.)In November 1908 the 1st defendant presented his petition to the Insolvent Court and in his schedule stated that certain immoveable properties situate in the North Arcot district had been mortgaged to the 2nd defendant by a deed of simple mortgage dated 23rd August 1906. The Official Assignee, the plaintiff in this suit, alleges that this deed is fraudulent and that he is entitled to avoid it and in his plaint prays that the deed may be declared fraudulent and invalid and not binding on him and that the 2nd defendant may be decreed to deliver up the same duly cancelled.
(2.)The suit appears to be based upon Section 53 of the Transfer of Property Act 1882, which enables a creditor to avoid a transfer of immoveable property made with intent to defeat or delay the creditors of the transferor; such a transfer is not void but is voidable at the option of certain persons, that is to say, assuming that the plaintiff proves his case as regards all the world except the creditors of the 1st defendant and also as against them until they choose to exercise their option, the 2nd defendant possesses a mortgage interest in the land in question.
(3.)The plaintiff now seeks to exercise that option to avoid the 2nd defendant s mortgage and thus to clear the land which is now vested in the plaint of an existing incumbrance. The 6th issue, raises the question of the jurisdiction of this Court to entertain this 1 suit and by consent has been tried as a preliminary issue. Clause 11 of the Letters Patent of this Court declares that it shall have and exercise ordinary original civil jurisdiction within such local limits as may... be declared and prescribed "and Clause 12 declares that" in the case of suits for land or other immoveable property such, land or property shall be situate within the local limits."