R. Viswanathan Vs. Rukn-Ul-Mulk Syed
Abdul Wajid [1962] INSC 208 (4 May 1962)
04/05/1962 SHAH, J.C.
SHAH, J.C.
DAS, S.K.
HIDAYATULLAH, M.
CITATION: 1963 AIR 1 1963 SCR (3) 22
CITATOR INFO :
RF 1972 SC 414 (12) RF 1975 SC 105 (51) RF
1990 SC1480 (54)
ACT:
Foreign Judgment How far binding-If affects
properties outside jurisdiction of foreign Court-Proceedings in foreign
Court-Natural justice, violation of-Proof-If "coram non judice"-Scope
of enquiry-Hindu Law--Joint family propertyDisposal by Will-Code of Civil
Procedure, 1908 (Act V of 1908), s. 13.
HEADNOTE:
One Ramalingam died at Bangalore leaving a
will whereby he devised considerable immovable and movable properties in the
States of Mysore and Madras. The executors applied for probate of the will and
it was granted by the District judge, Bangalore, Shri P. Medappa. Thereupon the
sons of Ramlingam instituted two suits in the District Court, Bangalore and the
District Court Civil and Military Station for possession of the immovable
properties in Mysore and the movable properties devised by the will and a suit
in the Madras High Court for possession of movable and immovable properties in
Madras devised by the will The movable included certain shares of the India
Sugars and Refineries Ltd., a company with its registered office at Bellary in
the State of Madras. The suits were based on the ground that all the properties
were joint family properties and Ramalingam had no power to dispose of the
property by his will. The Madras suit was stayed pending the disposal of the
Bangalore Suits. The District judge, Bangalore who tried the suit after the
retrocession of the Civil and Military Station Bangalore, decreed the suit
holding that the property devised by the will was of the joint family of
Ramalingam and his sons and the will was on that account inoperative. The
executors preferred appeals to the Mysore High Court which were heard by a
Bench consisting of Balakrishanaiya and Kandaswami Pillai,JJ, Balakrishanaiy a
J., delivered a judgment allowing the appeals and Pillai J., delivered a
judgment dismissing the appeals. Thereupon Balakrishanaiya J. referred the
appeals to a Full Bench.
The Full Bench consisting of P. Medappa,
Acting C. J., Balakrishanaiya and Mallappa, jj., allowed the appeals and
dismissed the suit holding that the property was the self acquired property of
Ramalingam and lie could dispose it 23 of by his will. Thereafter, in the Madras suit the executors urged that the judgment of the Mysore High Court was binding
upon the parties and the suit was barred as res judicata. The plaintiff
contended that as to the immovables in Madras the Mysore Court could not and
did not adjudicate upon their claim and that in any event the Mysore judgment
which was a foreign judgment was not conclusive as the proceedings in the
Mysore High Court were opposed to natural justice within the meaning of s. 13
of the Code of Civil Procedure because Medappa, Acting C. J., and Balakrishanaiya,
J., showed bias before and during the hearing of the appeals and were incompetent
to sit on the Full Bench and their judgment was coram non judice. The Trial
judge held that the judgment of Mysore High Court was coram non judice and was
nonconclusive under s. 13 of the Code and that all the properties movable and
immovable disposed of by Ramalingam belonged to the joint family and he
accordingly decreed the suit. On appeal the High Court held that it was not
established that the Mysore Full Bench was coram non judice, that the
properties in suit were joint family properties which Ramalingam was
incompetent to dispose of by his will, that the Mysore judgment did not effect
the immovable in Madras but it was conclusive with respect to the movables even
outside the State of Mysore and accordingly modified the decree of the trial Court
by dismissing the suit with respect to the movables which consisted mainly of
shares of the India Sugars & Refineries Ltd.
Held (per Das and Shah, jj.), that the Madras
High Court was right in decreeing the plantiffs' suit for possession with
respect to the immovable property in Madras and dismissing it with respect to
the movable property.
The judgment of the Mysore High Court was not
conclusive between the parties in the Madras suit with respect to the immovable
properties in Madras but was conclusive with respect to the shares of the
Company in the State of Mad-as.
A foreign Court has jurisdiction to deliver a
judgment in rem which may be enforced or recognised in an Indian Court provided
that the subject matter of the action is property, whether movable or immovable
within the jurisdiction of that Court. The Mysore Courts were not competent to
give a binding judgment in respect of the immovable property situate in the
State of Madras nor did they in fact give any judgment with respect to
immovable property outside Mysore.
But there is no general rule of private
international law that a court can in no event exercise jurisdiction in
relation 24 to persons, matters or property outside its jurisdiction.
The Mysore Courts were competent to give a
binding judgment in respect of the shares. The claim in the Mysore suit was for
the adjudication of title of the plaintiffs against the executors who had
wrongfully possessed themselves of the shares. Though in dispute between the
company and the share-holders the situs of the shares was the registered office
of the Company in Bellary (outside the State of Mysore) the share certificates
must be deemed to be with the executors. A decree could properly be passed by
the Mysore Courts against the executors for the retransfer of the shares. The
Mysore Courts were not incompetent to grant a decree directing the transfer of
the shares and such decree was binding on the parties for the Madras suits.
It is not necessary for the conclusiveness of
a foreign judgment that that judgment should have been delivered before the
suit in which it is pleaded, is instituted.
The Madras High Court could not investigate
the property of the procedure followed in the Mysore High Court in referring
the case to the Full Bench and the judgment of the Full Bench was not exposed
to the attack of want of competence because the case was referred after the two
judges constituting the Bench. had delivered separate and final opinions of the
points in dispute. Whether the procedure or a foreign Court which does not
offend rules of natural justice is proper, is for the foreign court to decide
and not for the court in which the foreign judgment is pleaded as conclusive.
To be conclusive a foreign judgment must be
by a Court competent both by the law of the State which has constituted it and
in an international sense, and it must have directly adjudicated upon the
"matter" which is pleaded as res judicata. The expression
"matter" is not equivalent to subject matter : it means the right
claimed. To be conclusive the judgment of the foreign Court must directly
adjudicate upon the matter. The Mysore judgment was conclusive only with
respect to the matters actually decided by it.
The suit as framed did not relate to
succession to the estate of Ramalingam, nor did it relate to the personal
status of Ramaligam and his sons. The dispute related primarily to the
character of the property devised by the will and the Mysore Court held that
the property devised under the will was self acquired property ; it did not
purport to adjudicate on any question of personal status of the parties to the
dispute before it.
25 It was not established that the judgment
of the Mysore Full Bench was croam non judice. In view of cl. (d) of s. 13 a
foreign judgment is not conclusive if the proceedings in which it was obtained
are opposed to natural justice. A judgment which is the result of bias or of
impartiality on the part of a judge, will be regarded as a nullity and the
trial as coram non Judice.
The Court will always presume, in dealing
with the judgment of a foreign courts, that the procedure followed by that
court was fair and proper and that it was not biased, that the court consisted
of Judges who acted honestly and however wrong the decision of the Court on the
facts or law appear to be, an inference of bias, dishonesty or unfairness will
not normally be made from the conclusions recorded by the Court upon merits.
The estate devised under the will was the
estate of the joint family of Ramalingam and his sons. The finding of the
Madras High Court to this effect was supported by the evidence on the record.
Prima facie the findings of the High Court, are findings of fact, and the
Supreme Court normally does not enter upon a reappraisal of the evidence, but
in this case it entered upon a review of the evidence on which they were
founded as the Mysore High Court bad on the identical issue about the character
of the property devised under the will of Ramalingam arrived at a different
conclusion.
Per Hidayatullah, J.-The judgment of the Full
Bench of the Mysore High Court was not coram non Juice and was binding on the
Madras High Court in so far as it negatives the right, of the coparcenary in
the Kolar Cold field business and held it to be separate property of
Ramalingam.
The question whether the Full Bench of the
Mysore High Court had violated principles of natural justice during the hearing
of the appeal, could not be considered by the Madras High Court as if it was
sitting in an appeal over the Mysore High Court, and the refusal of the Mysore
High Court to adjourn the hearing to enable the appellants to bring an outside
counsel did not violate any principle of natural justice, as they had already
three other counsel briefed in the appeals. In accordance with the practice of the
Mysore High Court, the appeals had been properly referred 'to the full Bench by
the Division Bench. A foreign Court will not lightly hold that the proceedings
in another court were opposed to natural justice.
26 The rule of law about judicial conduct is
as strict as it is old. No judge can be considered to be competent to hear a
case in which is directly or indirectly interested. A proved interest in a
judge not only disqualifies him but renders his judgment a nullity. But nothing
has been proved in the present case to establish this interest.
The objection to the jurisdiction of the'
Court in a foreign country on other than international considerations must be
raised in the country where the trial took place.
Objections to it internationally can be raised
in, the Court in which the judgment is produce. But, even if the objection to
the jurisdiction be raised in the court where the judgment is produced, that
court will consider in action in rem, whether the court has jurisdiction over
the subject matter and the defendant and also in actions in personam, whether
the jurisdiction was possessed over the subject matter and the parties. In
dealing with the question of foreign judgments, Indian Courts have to be guided
by the law as codified in this country. Section 13 of the Civil Procedure Code
make a judgment conclusive as to any matter directly adjudicated between the
same parties or between the parties under whom they or any of them claim
litigating under the same title. There is no real difference in so far as
competency of a foreign court goes between action in rem actions in personam.
The subject matter of controversy in the Mysore Courts was the status of
Ramalingam who was a subject and resident of Mysore State. His will made in
that jurisdiction was admitted to probate there. His sons and other relatives
who figured as parties and those in possession of the property were in that
State. It is clear that the Mysore Courts were competent internally as well as
internationally to decide about the status of Ramalingam or the rights in the
Kolar Gold Fields business between these parties. The same questions were
raised in the Madras suit.
The question for determination was the effect
of the Mysore judgment upon the suit in Madras in view of s. 13 of the Code.
Section 13 of the Code contemplates both judgments in rem and Judgments in
personam. The matter relating to Hindu co-parcenary and the. position of
Ramalingam were really question of status. The Mysore Courts had directly
adjudicated that Ramalingam was not carrying on the Kolar Gold Fields business
as co-parcener but as his. own separate business and this adjudication was
binding on the parties in the suit at Madras. The decision of the Mysore High
Court with respect of the status of Ramalingam vis a vis the Kolar Gold Field
business must be regarded in the Madras suit as a conclusive adjudication. The
Madras 27 Court could not try the question of Ramalingam's status de novo and
that part of its decision, which went behind the adjudication of the Mysore High
Court, was without jurisdiction. On this finding the immovable properties in
Madras were also the separate properties of Ramalingam which he could dispose
of by will, if they were the product of the Kolar Gold Field business. The only
question that could be tried at Madras was whether they were. The Mysore Courts
were competent to order the share scrips to be handed over to the successful
party and if necessary to order transfer of the shares and its judgment in
regard to them was binding in the Madras Courts.
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 277 to 283 of 1958.
Appeals by certificate from the judgment and
decrees dated December 15, and October 20, 1954, of the Madras High Court in
Original Side Appeals Nos. 127, 1.53, 156 and 158 of 1953.
S. T. Desai and B. R. L. Iyengar, for the
appellants in C.
As' Nos. 277, 279, 281 and 282/58 and
respondents Nos. 1 to 3 in C. A. No. 278/58.
M. C. Setalvad, Attorney-General of India,
M.K. Nambiar, E. V. Mathew, J. B. Dadachanji, S. N. Andley, Rameshwar Nath and
P. I,. Vohra, for the appellants in C. As. Nos. 278, 280 and 283/58 and
respondents in C. A. Nos. 277, 279, 281 and 282/58.
Ratna Rao and K. R. Choudhry, for the
respondent No. 6 in C. A. No. 278/58.
B. R. L. Iyengar, for respondents in C. A.
No. 280/58 and respondent No. 1 in C. A. No. 283/58.
S. Venkatakrishnan, for respondent No. 2 in
C. A. No. 283/58.
1962. May 4. The Judgment of Das and Shah,
JJ. was delivered by Shah, J., Hidayatullah, delivered a separate judgment.
SHAH, J.--Ramalingam Mudaliar-a resident of
Bangalore (in the former Indian State of 28 Mysore)-started life as a building
contractor. He prospered in the business and acquired an extensive estate which
included many houses in the Civil and Military station at Bangalore, in
Bangalore city and also in the towns of Madras, Hyderabad and. Bellary. He
dealt in timber, established cinematograph theatres, obtained a motor-car
selling Agency and made investments in plantations and coffee estates. He set
up a factory for manufacturing tiles, and later floated a sugar company. The
Indian Sugars & Refineries Ltd., of which he became the Managing Agent and
purchased a large block of shares. For some years before his death Ramalingam
had taken to excessive drinking, and was subject to frequent coronary attacks.
He became peevish and easily excitable and his relations with his wife and
children were strained. Ramalingam felt great disappointment in his eldest son
Vishwanatha who borrowed loans from money-lenders at exorbitant rates of
interest, attempted to evade payment of customs duty, failsified accounts and
otherwise exhibited utter lack of business of capacity."' Ramalingam had
developed a violent antipathy towards a sadhu named Ramaling swami, but his
wife Gajambal and his children persisted in attending upon the sadhu and
visited him frequently. This led to frequent quarrels between Ramalingam and
his wife and children. Ramalingam stopped the allowance for household expenses,
and cancelled the power which he had given to his son Vishwanath to operate on
the joint Bank account. Shortly thereafter, he left the family house. On June
2, 1942, his wife Gajambal presented a petition before the District Judge,
Civil Station Banglore, for an order against Eamalingam for inquisition under
the Indian Lunacy Act. On that application evidence was directed to be recorded
and the District Judge called for a medical report as to Abe mental condition
of Ramalingam.
29 In the meanwhile, Ramalingam executed his
will dated September 10, 1942. By this will he made no provision for his eldest
son Vishwanath, to each of other two sons and to Thygaraja, son of Viahwanath
be gave immovable property valued at Rs. 55,000/-and shares of the value of Rs.
20,000/in the Indian Sugars & Refineries Ltd. To his wife Gajambal he gave
life interest in three houses then under construction with remainder in favour
of Thygaraja, son of Vishwanath, and till the construction was completed a
monthly allowance of Rs. 150/-. To five out of his nine daughters he gave cash and
immovable property approximately of the value of Rs. 25,000/each and to three
others cash amounts varying between Rs. 5,000/to Rs. 7,500/ and excluded
Bhagirathi, his daughter, altogether from the benefit under the will. He also
made provision for the marriage expenses for his unmarried daughters and
provided for payment of Rs. 5,000/to Mukti, daughter of Bhagirathi.
Out of the remaining estate, he directed that
Rs. 50,000/be spent in erecting a Gynaecological ward in the Vani Vilas
Hospital, Bangalore, and stop the balance of the estate be invested in a fund,
the income whereof be applied "for encouragement and development of
industries, education or medical research, diffusion of medical knowledge,
including work in nutrition and dietry by the grant of scholarship etc."
The executors of the will were A. Wajid (retired Revenue Commissioner of the
Mysore State), Narayanaswamy Mudaliar and S. L. Mannaji Rao. Ramalingam died on
December 18 1942, leaving him surviving three sons-Vishwa-nath, Swaminath and
Amarnath-his widow Gajambal and nine daughters. The executors applied to the
District Court, Civil & Military Station, Bangalore, for probate of the
will dated September 10, 1942. The widow and, children of Ramalingam entered
caveat and the application 'was 30 registered as Original Suit No. 2 of 1943.
Mr. P. Medappa, who was then the District Judge dismissed the caveat and by his
order dated Nov. 27 1943, granted probate of the will.
An appeal against the order to the Court of
the Resident in Mysore, was dismissed on July 5, 1944. Leave to appeal against
that order to the Judicial Committee of the Privy Council was granted and a
petition of appeal was lodged.
But by order dated December 12, 1949, the
Judicial Committee declined to consider the appeal on the merits, for, in the
view of the Board, since the Civil & Military Station of Bangalore was
before the bearing of the appeal retroceded to H. H, the Maharaja of .Mysore
and was within the jurisdiction of his State at the date of the hearing of the
appeal. His Majesty-in-Council could not effectively exercise jurisdiction
which was expressly surrendered and renounced. The order passed by the District
Court granting probate accordingly became final and the validity of the will in
so far as it dealt with property in the Civil & Military Station,
Bangalore, is not liable to be challenged on the ground of want of due
execution. Applications for probate of the will limited to property within the
jurisdiction of the District Court, Bangalore and the Madras High Court were
also filed and orders granting probate subject to the result of the proceedings
before the Privy Council were made.
During the pendency of the probate proceeds.,
the sons of Ramalingam-who will hereinafter be collectively referred to as the
plaintiffs-instituted three actions against the executors and other persons for
establishing their title to and for possession of the estate disposed of by
the, will of Ramalingam. These actions were :
(1) Suit No. 56 of 1942/43 of the file of the
District Court, Bangalore for possession of immovable properties in Bangalore
and the 31 business carried on in the name of Ramalingam and also movables such
as shares together with the profits and income accrued there from since
December 18, 1942.
(2) Suit No. 60 of 1944 in the District
Court, Bangalore Civil & Military Station for a decree for possession
against the executor,% of immovable property within the territorial
jurisdiction of that Court, and (3) Suit No. 214 of 1944 in Madras High Court
on its original side for a decree for possession of immovable properties in the
town of Madras and also for a decree for a possession of "certain
business" and movables in Madras including the shares of the India Sugars
Refineries Ltd.
After the retrocession of the Military
Station Bangalore in 1947 to the Mysore State, Suit No. 56 of 1942/43 was
renumbered 61A. of 1947 and was consolidated for a trial with Suit No. 60 of
1944. Hearing of Suit No. 214 of 1944 on the Original side of the Madras High
Court was ordered to be stayed pending the hearing and disposal of the Mysore
suits. In the three suits the plaintiffs claimed possession of the property
devised under the will of Ramalingam dated September 10, 1942, on the plea that
the property belonged to the joint family of the plaintiffs and the testator,
and the executors acquired under the will no title thereto because the will was
inoperative. The suits were resisted by the executors principally on the ground
that Ramalingam.
was competent to dispose of the estate by his
will, for it was his self-acquisition. In the suit in the District Court at
Bangalore they also contended that the Court had no jurisdiction to grant
relief in respect of any property moveable or immovable outside the Mysore
State. This plea was raised because in the plaint as originally filed the 32
plaintiffs had claimed' a decree for possession of the immovable property in
the Province of Madras and also on order for retransfer of the shares which
were originally held by Ramalingam in the India Sugars & Refineries Ltd.,
and which were since the death of Ramalingam transferred to the names of the
executors. By an amendment of the schedule to the plaint, claim for possession
of immovables situate within the jurisdiction of the Madras High Court but not
the relief relating to the shares was deleted. The plea that the claim for
possession of moveables outside the State of Mysore was not maintainable was
apparently not persisted in before the District Court. The District Judge,
Bangalore, held that the property devised by the will dated September 10, 1942,
was of the jointfamily of Ramalingam and his sons and the will was on that
account inoperative. He accordingly decreed the suit for possession of the
properties set out in the schedules and within his jurisdiction, and directed
that a preliminary decree be drawn up for account of the management of the
properties since the death of Ramalingam by the executors.
Appeals preferred by the executors against
the decrees of the District Judge in the two suits to the High Court of Mysore
were heard by Paramshivayya, C.J., and Balakrishanaiya, J. After the appeals
were heard for some time, the hearing was adjourned for six weeks to enable the
parties to negotiate a compromise. The plaintiff,,; say that it was agreed
between them and the executors that the widow and the children of Ramalingam
should take 3/5th of the estate covered by the will of Ramalingam executed on
September 10, 1942, and that the remaining 2/5th should go to charity mentioned
in the will and that in the event of the sons and widow of Ramalingam
succeeding in the pending appeal in the Probate Proceedings before the Privy 33
Council, the 2/5th share should also be surrendered by the executors.
The appeals were then posted before a
Division Bench of Balakrishanaiya and Kandaswami Pillai, JJ. Before this newly
constituted Division Bench, a decree in terms alleged to be settled between the
parties was claimed by the widow and sons of Ramalingam, but the Court by order
dated March 15, 1949, declined to enter upon an enquiry as to the alleged
compromise, because in their view the compromise was not in the interest of the
public trust created by the will of Ramalingam. The appeals were heard and on
April 2, 1949, the two Judges constituting the Bench differed.
Balakrishanaiya, J., in exercise of the
powers under s. 15(3) of the Mysore High Court Regulation 1884 referred the
appeals to "a Full Bench for decision under section 15(3) of the High
Court Act." The appeals were then heard by a Full Bench of Medappa, Acting
C.J., Balakrishanaiya and Mallappa, JJ. For reasons which will be set out in
detail hereafter, no arguments were advanced on behalf of the plaintiffs in
support of the decree, of the District Judge, and the appeals were allowed, and
the plaintiff's suits were dismissed. An application for review of judgment was
submitted by the plaintiffs on diverse grounds, but that application was also
dismissed.
After the disposal of the suits in the
Bangalore Court, in suit No. 214 of 1944 it was submitted before the Madras
High Court by the executors that the judgment of the Mysore High Court
dismissing plaintiffs" suit for possession of immovable properties and for
an order for retransfer of shares of the India Sugars & Refineries Ltd.,
was res judicata between the parties and accordingly the suit held by the
plaintiffs in the Madras High Court be dismissed. The plaintiffs contended that
as to immovables in Madras, the Mysore judgment was not conclusive because the
Mysore Court was not competent to 34 adjudicate upon the title of the
plaintiffs to the Madras properties and that the Court did not, in fact,
adjudicate upon the claim of the plaintiffs, and that, in any event, the
judgment was not conclusive because Medappa, C.J., and Balakrishanayia, J., showed
bias before and during the hearing of the appeals they were incompetent to sit
in the Full Bench, and "their judgment was coram non judice".
On "the preliminary issue of res
judicata" Rajagopalan, J., held that the Full Bench judgment of the Mysore
High Court did not bar the hearing of the suit in regard to the immovable
properties in Madras claimed by the plaintiffs for two resons (1) that the
title to those properties was not, in fact, adjudicated upon by the Mysore
Court, and (2) that the lex situs governed the immovable properties in Madras.
The learned Judge also indicated the scope of
the enquiry on the plea of conclusiveness of the foreign judgment raised by the
executors. He observed that the Madras High Court not investigate the
allegations made against the Judges of the Mysore High Court in the conduct of
the appeal itself, or of the property or correctness of their decisions in the
appeals or in the legal proceedings connected therewith, but two questions fell
outside the purview of that rule; (a) whether Mr. Medappa had been and was
using a motor car belonging to the estate in the hands of 'the executors, and
(b) whether Mr. Medappa sent for L.S. Raju who was engaged to appear as counsel
for the plaintiffs and attempted to dissuade him from conducting the case for
the ",plaintiffs' family". If these two allegations were established,
observed Rajagopalan, J., they might possibly furnish proof that one of the
Judges of the Mysore High Court who had heard the appeals was "interested"
in the subject matter of suit itself and that would be a ground falling within
the scope of exception (d) to s. 13 Civil Procedure Code. He accordingly ruled
that the plaintiffs may 35 lead evidence on those two allegations but not as to
the rest. Against the order, two appeals were preferred to the High Court under
the Letters Patent, one by the plaintiffs and the other by the executors. The
plaintiffs submitted that Rajagopalan, J., was in error in restricting the
scope of the enquiry into the allegations of bias, interest and partiality. The
executors contended that the judgment of the Mysore High Court was conclusive
as to title to all properties movable and immovable belonging to the estate of
Ramalingam and disposed of by the will and that no enquiry at all as to the
allegation of bias and proof of interest, about the use by Mr. Medappa of a
motor car belonging to the estate and the dissuasion by Mr. Medappa of Raju
should be permitted. The High Court of Madras held that evidence about the
attempts made to dissuade Raju from appearing for the plaintiffs was
admissible, but not evidence relating to the use by Mr. Medappa of a motor car
belonging to the estate. They observed that even if the "Mercedes
car" of 'the estate was used by Mr. Medappa, the user was before he was
appointed Judge of the Mysore High Court and the motor car had been sold away
more than three years before the date on which Mr. Medappa sat in the Full
Bench and it could not therefore be said that because he had used the car some
years before the date on which he sat in the Fall Bench, "he had so
identified himself with the executors that in taking part in the hearing before
the Full Bench," the proceeding was contrary to natural justice. They also
held that the judgment of the Mysore High Court, unless the "plea coram
non judice" was established, was conclusive as to all items of property in
dispute in the suit, except as to the four items of immoveable property in
Madras.
The suit was thereafter allotted to the file
of Ramaswami, J., for trial was heard together with 36 five other suits-Suits
Nos. 91 of 1944, 200 of 1944, 251 of 1944, 274 of 1944 and 344 of 1946 all of
which directly raised questions relating to the interest which the plaintiffs
claimed in the estate devised under the will as members of a jointfamily. By
consent of parties, the evidence recorded in Suit No. 60 of 1944 and Suit No.
61A of 1947 of the file of the District Judge, Bangalore, was treated as
evidence in these suits and proceedings and the record of the Mysore High Court
in the civil suits and the printed record of the Privy Council in the probate
proceedings and the record in the petition for a writ of prohibition filed in
this Court restraining enforcement of the judgment of the Mysore Court were
treated as part of the record of the suit.
In Suit No. 214 of 1944, three principal
questions fell to be determined :
(1) whether the judgment of the Mysore High
Court holding that the estate devised by Ramalingam by his will was his
selfacquired property was conclusive as to title to properties movable and
immovable, situate without the jurisdiction of the Mysore State;
(2) whether the proceeding in the Mysore High
Court in which the judgment pleaded as conclusive was rendered, was vitiated
because it was opposed to natural justice and (3) whether by his will dated
September 10, 1942, Ramalingam attempted to dispose of the estate which
belonged to the jointfamily of himself and his sons, the plaintiffs.
Ramaswami, J, did not expressly deal with the
first question, presumably because (so far as he was concerned it was concluded
by the judgment 37 of the Division Bench in appeals against the, interlocutory
order relating to the scope of the enquiry in the suit, but on the second and
the third questions he held in favour of the plaintiffs. He held that for
diverse reasons the "Full Bench judgment of the High Court was coram non
judice" and therefore not conclusive within the meaning of s. 13 of the
Code of Civil Procedure, and that the evidence disclosed that the property
movable and immovable set out in the scheduled to the plaint and the business
conducted by Ramalingam belonged to the joint family of Ramalingam and his
sons. He accordingly decreed the claim of the plaintiffs for possession of the
property movable and immovable), set out in the Schedule to the plaint (except
1650 shares of the India Sugars and R efineries Ltd.) and directed an account
of the management by the executors of the properties from the date of
Ramalingam's death till delivery of possession of the properties to the
plaintiffs. He also declared that the business carried on in the name of
Oriental Films at 9 Stringers St., G.
T. Madras, was the sole proprietary concern
of the joint family and the profits realised from "Palmgrove" and
Vegetable Oil Factory constituted the assets of the estate of Ramalingam
subject to such equities as might arise in favour of Narayanaswami Mudaliar on
the footing of the doctrine of Quantam Meruit to be determined by the final
decree or execution proceedings." Against the judgment of Ramaswami, J.
the executors appealed to the High Court. The High Court observed that the
decision of the Mysore High Court could not "take effect in respect of the
immovable properties situate in the State of Madras ; but it could naturally
affect the moveables situate there. In fact, the immovable properties in Madras
State were not included in Mysore suits. It is therefore necessary for the
members of 38 Ramalingam's family to get rid of the decision of the Mysore High
Court before they can have any chance of obtaining the movable properties of
Ramalingam situate in the State." The High Court after an elaborate review
of the evidence held that the estate which Ramalingam sought to dispose of by
his will was joint-family estate, and he was on that account incompetent to
dispose of the same, and the plaintiffs were entitled to the immovables in
Madras, but as to movables the judgement of the Mysore High Court was
conclusive there being no reliable evidence to establish the plea of
"coram non judice". The High Court accordingly modified the decree of
the trial Court. They confirmed the decree in so far as it related to
immovables in Madras and dismissed it as to the rest. They further declared
that the sale proceeds of a property called "Palmgrove"--which was
execluded from the Schedule to the plaint in the Bangalore suit-,,constituted
the assets of the said joint family" and on that footing gave certain
directions.
Against the judgment of the High Court
modifying the decree of Mr. Justice Ramaswami two appeals-Nos. 277 and 278 of
1958-are preferred : Appeal No. 277 is by the plaintiffs, and Appeal No. 278 of
1858 is by the executors. The plaintiffs contend that the judgment of the
Mysore Fall Bench is not conclusive between parties in the Madras suit, for the
Mysore Court was not a court of competent jurisdiction as to property movable
and immovable outside the territory of the Mysore State, that the judgment was
not binding because the Judges who presided over the Full Bench were not
competent by the law of the Mysore State to decide the dispute and that in any
event it "was coram non judice" because they were interested or
biased and the proceedings before them were conducted in a manner opposed to 39
natural justice. On behalf of the executors, it is submitted that the judgment
was conclusive as to the nature of "the Kolar Gold Fields business",
which was found to be the separate business of, Ramalingam, and the Madras High
Court was only competent to decide whether the immovables in Madras were not
acquired out of the earnings of that business.
Section 13 of the Code of Civil Procedure,
Act V of 1908, provides :
"13. A foreign judgment shall be
conclusive as to any matter thereby directly adjudicated upon between the same
parties or between parties under whom they or any of them claim litigating
under the same title except(a) where it has not been pronounced by a Court of
competent jurisdiction (b) where it has not been given on the merits of the
case ;
(c) where it appears on the face of the
proceedings to be founded on an incorrect view of international law or a
refusal to recognise the law of India in cases in which such law is applicable.
(d) where the proceedings in which the
judgment was obtained are opposed to natural justice ;
(e) where it, has been obtained by fraud (f)
where it sustains a claim founded on a breach of any law in .force ill India.
40 By that enactment a foreign judgment is
made conclusive as to all matters directly adjudicated upon between the
parties, except as to cases set out in cls.(a) to (f). The judgment of the
Mysore High Court is, it is claimed by the plaintiffs not conclusive because(1)
it has not been pronounced by a court of competent jurisdiction, (2) that on
the face of the proceeding it was founded on incorrect view of the
international law, and (3) that the proceeding in which the judgment was
pronounced was opposed to natural justice.
The dispute in the appeal filed by the
plaintiffs primarily relates to the shares of the India Sugars & Refineries
Ltd, and movables in Madras. The judgment of the Mysore Court qua the
immovables in Mysore has become final and is not and cannot be challenged in
this Court. The Mysore High Court was competent to adjudicate upon title to immovable’s
within the territory of the State of Mysore, in the suits instituted by the
plaintiffs against the executors. In considering whether a judgment of a
foreign Court is conclusive, the courts in India will not inquire whether
conclusions recorded thereby are supported by the evidence, or are otherwise
correct, because the binding character of the judgment may be displaced only by
establishing that the case falls within one or more of the six clauses of s.
13, and not otherwise. The registered office of the India Sugars &
Refineries Ltd., was in Bellary in the Province of Madras, and the situs of the
shares which are movables-may normally be the place where they can be
effectively' dealt with (see Erie Beach Co. v. Attorney-General for Ontario(1)
and Brasssard v. Smith(2). The situs of the (1) [1930] A.C. 161.
(2) [1925] A.C. 372, 41 shares of the India
Sugars & Refineries Ltd. may therefore be properly regarded as without the
territorial' jurisdiction of the Mysore Court at the date of the institution of
the suit by the plaintiffs. Counsel for the plaintiffs submitted that the
Courts in the Indian St-ate of Mysore which qua the Courts in the Province of
Madras prior to the enactment, of the Constitution, were foreign Courts bad no
jurisdiction to adjudicate upon title to movables outside their territory, for
the action to declare title to such movables and order for possession thereof
was by the rules of private international law an action in rem, and the
judgment of the Mysore Court was on that account a nullity.
Counsel urged that the principle of
submission to jurisdiction has no application in actions in rem, because
jurisdiction in rem, rests entirely upon presence actual or national of the res
within the territory over which the Court has power. Counsel also urged that
recognition of jurisdiction in transactions involving a foreign element depends
upon the doctrine of effectiveness of judgments, and willingness of parties to
submit to jurisdiction in actions in rem is irrelevant. Enlarging upon this
theme,. it was submitted that the shares of the India Sugars & Refineries
Ltd. had at the material time a situs outside the jurisdiction of the courts of
the Mysore State and by the rules of private international law, an action for
adjudication of title to the shares being an action in rem the courts of the
State of Mysore were incompetent to entertain a suit in which title to the
shares was involved because they could not render an effective judgment for
possession of those shares. On the assumption that in an international sense
the Court of the District Judge, Bangalore, was incompetent to adjudicate upon
title to the shares and the movables and to award possession thereof, it was
urged that a suit for determination of title to and for possession of the
shares and movables could be instituted in the Madras High Court alone and by
42 their submission the plaintiffs could not invest the Court of the District
Judge. Bangalore, with jurisdiction to adjudicate upon the conflicting c1aims
of title to the shares. The argument therefore is that the action instituted by
the plaintiffs in the District Court of Bangalore being an action in rem 'that
Court was by the rules of private international law universally recognised,
competent to adjudicate upon title only to property regarding which it could
render an effective judgment, and as the plaintiffs claimed title to and
possession of shares of the India Sugars & Refineries Ltd. and other
movables outside the territory of Mysore the judgment of the Mysore High Court
that the shares and the movable property were the self-acquisition of
Ramalingam was not binding upon the parties, because the Mysore Court was not a
Court of competent jurisdiction within the meaning of s. 13, Civil Procedure
Code,1908.
A judgment of a foreign court to be
conclusive between the parties must be a judgment pronounced by a court of
competent jurisdiction; and competence contemplated by s. 13 of the Code of
Civil Procedure is in an international sense, and not merely by the law of
foreign State in which the Court delivering judgment functions Chormal Balchand
v. Kasturhand (1), Panchapakesa v. Hussim(2) and Pemberton v. Highes (3). It is
necessary to emphasize that what is called private international law is not law
governing relations between independent States : private international law, or
as it is sometimes called "Conflict of Laws", is simply a branch of
the civil law of the State envolved to do justice between litigating parties in
respect of transactions or personal status involving a foreign element.
The rules of private international law of
each State must therefore in the very nature (1) [1936] I.L.R. 63 Cal. 1083 (2)
A.I.R. 1234 Mad. 145.
(3) [1899] Cb. 781.
43 of things differ, but by the comity of
nations certain rules are recognised as common to civilised jurisdictions.
Through part of the judicial system of each
State these common rules have been adopted to adjudicate upon disputes
involving a foreign element and to effectuate judgments of foreign courts in
certain matters, or as a result of international conventions.
Roman lawyers recognised a right either as a
jus in rem or a jus in personam. According to its literal meaning "jus in
rem" is right in respect of a thing, a us in personam" is a right
against or in respect of a person. In modern legal terminology a right in rem,
postulates a duty to recognise the right imposed upon all persons generally, a
right in personam postulates a duty imposed upon a determinate person or class
of persons. A right in rem is therefore protected against the world at large; a
right in personam against determinate individuals or persons. An action to
enforce a jus in personam was regarded as an action in rem. But in course of
time, actions in rem and actions in personam acquired different content. When
in an action 'the rights and interest of the parties themselves in the subject
matter are sought to be determined, the action is in personam. The effect of
such an 'action is therefore merely to bind the parties thereto. Where the
intervention of the Court is sought for the adjudication of a right or title to
property, not merely as between the parties but against all persons generally,
the action is in rem. Such an action is one brought in the Admiralty Division
of the High Court possessing Admiralty jurisdiction by service of process against
a ship or cargo within jurisdiction. There is another sense in which an action
in rem is understood. A proceeding in relation to personal status is also
treated as a proceeding in rem, for the judgment of the proper court within the
jurisdiction of which the parties are domiciled is by comity of 44 nations
admitted to recognition by other courts. As observed by Cheshire in his
"Private International Law", Sixth Edition at page 109, "In
Roman law an action in rem was one brought in order to vendicate a jus in rem,
i.e., a right such as ownership available against all persons, but the only
action in rem known to English law is that which lies in an Admiralty court
against a particular res, namely, a "hip or some other res, such as
cargo,associated with the ship." Dealing with judgment in rem and
judgments in personam, Cheshire observes at page 653, It (judgment in rem) has
been defined as a judgment of a court of competent jurisdiction determining the
status of a person or thing (as distinct from the particular interest in it of
a party to the litigation); and such a judgment is conclusive evidence for and
against all persons whether parties, privies or strangers of the matter
actually decided .......... A judgment in rem settles the destiny of the res itself
land binds all persons claiming an interest in the property inconsistent with
the judgment even though pronounced in their absence' ; a judgment in personam,
although it may concern a res, merely determines the rights of the litigants
inter se to the res. The former looks beyond the individual rights of the
parties, the latter is directed solely to those rights A foreign judgment which
purports to operate in rem will not attract extraterritorial recognition unless
it has been given by a court internationally competent in this respect. In the
eyes of English law,, the adjudicating court must have jurisdiction to give a
judgment binding all persons generally. If the judgment relates to immovables,
it is clear that only the court of the situs is competent.
In the case of movables, however, the
question of competence is not so simple, since there would appear to be at
least three classes of judgments in rem:
(a) Judgments which immediately vest 45 the,
property in a certain person as against the whole world.
These occur, for instance, ",here a
foreign court of Admiralty condemns a vessel in prize proceedings.
(b) Judgments which decree the sale of a
thing in satisfaction of a claim against the thing itself.
and (c) Judgments which order movables be
sold by way of administration." An action in personam lies normally where
the defendant is personally within the jurisdiction or submits to the
jurisdiction or though outside the jurisdiction may be reached by an order of
the court. By s. 20 of the' Mysore Code of Civil Procedure a general
jurisdiction (subject to es. 16 to 19 which deal with suits relating to
immovable property and movable property under distraint and certain incidental
matters) was conferred on Courts in respect of suits instituted within the local
limits of whose jurisdiction(a) the defendant, or each of the defendants, were
there are more than one, at the time of the commencement of the suit, actually
and voluntarily resides, or carries on business or personally works for gain;
or (b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries
on.business, or personally works for gain, provided that in such case either
the leave of the Court is given or the defendants who do not reside, or carry
on business, or personally work for gain, as aforesaid, acquiesce in such
institution; or 46 (c) the cause of action, wholly or in part arises, These
rules deal with the territorial jurisdiction of courts in respect of all suits
other than those relating to immovable property or for recovery of movable
property under distraint or attachment. But in their application they extend to
all per sons whether domiciled or not within jurisdiction. Section 20 of the
Code extends the jurisdiction of the courts to persons or transactions beyond
the territorial limits of the courts. Such jurisdiction in personam which
transcends territorial limits is conferred on the courts by the law making
authority of many States. In England, by Order XI, r. 1 of the Rules of the
Supreme Court, discretionary jurisdiction in personam is exercisable by the
courts by effecting service outside the jurisdiction of a writ of summons or
notice of a writ of summons against an absent defendant in the classes set out
therein.
A court of a foreign country has jurisdiction
to deliver a judgment in rem which may be enforced or recognised in an Indian
Court, provided that the subject matter of the action is property whether
movable or immovable within the foreign country. It is also well settled that a
court of a foreign country has no jurisdiction to deliver a judgment capable of
enforcement or recognition in another country in any proceeding the subject
matter of which is title to immovable property outside that country.
But there is no general rule of private
international law that a court can in no event exercise jurisdiction in
relation to persons, matters or property outside jurisdiction. Express
enactment of provisions like s. 20, Civil Procedure Code, 1908 (V of 1908) and
0. XI, r. 1 of the Supreme Court Rules in England, negative such an assumption.
47 The courts of a country generally impose a
threefold restriction upon the exercise of their jurisdiction (1) jurisdiction
in rem (binding not only the parties but the world at large) by a court over
res outside the jurisdiction will not be exercised, because it will not be
recognised by other courts; (2) The court will not deal directly or indirectly
with title to immovable property outside the jurisdiction of the State from
which it derives its authority; and (3) Court will not assist in the
enforcement within its jurisdiction of foreign penal or revenue laws.
The suit filed by the plaintiffs was for
possession of the estate disposed of by the will of Ramalingam. In paragraph 3
of the plaint in the Bangalore District Court suit (and that is the only
foreign suit to which we will refer, because it is common ground that the
averments in the two plaints-in the District Court at Bangalore and in the
District Court, Civil Station Bangalore, which was consolidated for bearing
with the Bangalore suit, were the same) it was averred "The plaintiffs and
their father, the late V. Ramalinga Mudaliar, were members of the undivided
Hindu joint family and the properties set out in the schedule among others
belong to the said joint family. The said Ramalinga Mudaliar died on the 18th
of December, 1942, and on his death the three plaintiffs herein have become
entitled by survivorship to all the said properties." In paragraph 11, it
was averred, "The plaintiffs state that as the properties set out are
joint family properties the late Ramalingam had no disposing power in respect
of them and any will alleged to have been executed by him is in any event void
and inoperative in law, and not binding on the plaintiffs. It was then averred
in paragraph 13, that the executors under the will of Ramalingam had entered
upon the properties and business set out in the schedule purporting to be the
executors 48 under an alleged will of the said Ramalingam, and as the said will
was, in any event invalid the defendants were in wrongful possession of the
said properties and businesses and the plaintiffs were en, titled to recover
the same from the executor a as the surviving members of the joint family
consisting of themselves and their deceased father Ramalingam. By paragraph 22
they claimed among other reliefs, the following:
(a) that the executors be ordered to deliver
possession of all the properties and businesses in their possession, management
and control together with the profits and income' accrued therefrom since 18th
December, 1942, (b) that defendants 17 and 18 (employees of Ramalingam) be
ordered to deliver possession of the assets and capital together .With the
profits of the businesses of Kolar Gold Field contracts, military contracts and
cinema business., (c) that the executors and defendant 15 who are alleged to
hold shares of the India Sugars & Refineries be ordered to retransfer the
shares to the plaintiffs.
The plaintiffs in paragraph 19 averred, in
impleading the India Sugars & Refineries Ltd., Bellary as Defendant No. 16
in the suit, that the company was impleaded "so give effect to an order of
transfer of at least 19,000 shares from the names of defendantes 1 to the plaintiffs.
The claim in suit was clearly for
adjudication of title of the plaintiffs against persons who had wrongfully
possessed themselves of their property. Manifestly, an action in personam is
one brought in order to settle the rights of the parties as between 49
themselves and only between themselves and persons claiming through or under
them whether it relates to an obligation or, as in the case of detinue, to
chattels. A decision obtained in this suit is effective only as between the
parties. By the Mysore Code of Civil Procedure the District Court of Bangalore
was competent to entertain the suit for possession of immovable properties
within the jurisdiction of that court and also for an order against the
executors to retransfer the shares of the India Sugars & Refineries Ltd.,
to the plaintiff. The situs of the shares in any question between the Company
and the holders thereof was the registered office of the Company in Bellary
(outside the State of Mysore), but the share certificates must, on the case of
the plaintiffs as set out in the plaint, be deemed to be with the executors and
compliance with the decree, if any, passed against the executors for an order
of retransfer could be obtained under the Code of Civil Procedure ('see Order
XXI, rr. 31 and 32 Mysore Civil Procedure Code).
There is no rule of private international law
recognised by the courts in India which renders the Bangalore Court incompetent
to grant a decree directing retransfer of the shares merely because the shares
have a situs in a dispute between. the Company and the shareholders outside the
jurisdiction of the foreign court: Counsel for the plaintiffs submitted that
the Mysore Court was incompetent to deliver an effective judgment in respect of
the shares, but by personal compliance with an order for retransfer judgment in
favour of the plaintiffs could be rendered effective.
It is in the circumstances not necessary to
express any opinion on the question whether on the principle of effectiveness
is founded the conclusive character of a foreign judgment. On this question
text book writers disagree, and there is singular absence of even persuasive
authority. Dicey maintained (see Dicey's Conflict of Laws, 7th Edition 50 p. 17
Introduction) that the jurisdiction in personam of English courts rests upon
the principle of effectiveness which he defined as follows:"The courts of
any country are considered by English law to have jurisdiction over (i. e., to
be able to adjudicate upon) any matter with regard to which they can give an effective
judgment, and are considered by English law not to have jurisdiction over (i.
e., not to be able to adjudicate upon) any matter with regard to which they
cannot give an effective judgment." This principle received apparent
approval in a dictum of Lord Merrivale, President of the Matrimonial Court in
Tallack v. Tallack (1) wherein it was observed at p. 221:
"It is not clear that the judicial
tribunals of the Netherlands are able to give effect at all to judgements of
foreign courts even in personal actions' against defendants living in Holland.
But having regard to the terms of the Civil Code, and the evidence of Dr.Bisschop,
I am satisfied that a decree of this Court purporting to partition the property
of the respondent would be an idle and wholly ineffectual process." In
Tallack8 case, the court refused the petition of the husband for an order for
settlement of the estate of the wife upon the children of the marriage after a
decree for dissolution was passed, on the ground that to accede to it would be
to extend the jurisdiction of the English Court against a defendent who was not
at the material time domiciled within its jurisdiction, and who had appeared
only to dispute the exercise of jurisdiction beyond territorial limits. This
ground was sufficient to support the decision of the court and the observation
about the principle of effectiveness were plainly unnecessary.
(1) (1927) P. D. 211.
51 Schmitthoff in "The English Conflict
of Laws" 3rd Edition at page 425 observes:
".............................. the
jurisdiction of the courts is not based upon considerations of actual or
probable effect of their dicision. The argument from the effect of the judgment
to the jurisdiction of the court represents an approach to the problem under
investigation from the wrong end, in the same way as the argument from the
effect of the choice of law to the choice itself is, in the words of Lord
Russel, founded upon a fallactious basis." Graveson in his "The
Conflict of Laws" 4th Edition at p. 338 observes :
"In the doctrine of effectiveness
English jurists have sought to provide for the courts a reasonable and adequate
theory to determine the exercise of jurisdiction. The reasonableness of the
theory is assured by its practical basis; but its complete adequacy is refuted
by the existence of English jurisdiction over defendants outside the
jurisdiction in cases falling within Order 11 of the Rules of the Supreme
Court....................... The basis of jurisdiction in the English conflict
of laws is wider than, though it comprehends, the principle of effective
enforcement of judgments. It lies in the administration of justice." In an
action in personam the court has jurisdiction to make an order for delivery of
movables' where the parties submit to the jurisdiction. A person who institutes
a suit in a foreign court and claims a decree in personam cannot after the
judgment is pronounced against him, say that the court had no jurisdiction
which he invoked and which the court exercised, for it is well recognised that
a party who is present within or who had submitted to jurisdiction cannot after
wards question it.
52 We may briefly refer to cases on which
counsel for the plaintiffs relied in support of his plea that the judgment of
the Mysore High Court in so far as it relates to movables outside the State of
Mysore was not conclusive between the parties in the Madras suit.
In Messa v. Messa (1) the judgment of the
Alexandria Supreme Court relating to the validity of a will executed by one
Bunin Menahim Messa was held not binding as a judgment in rem upon the parties
to a litigation in Aden in which the defendants claimed to be executors under
the will of the testator. The testator was not domiciled within the territory
over which the Supreme Court of Alexandria exercised jurisdiction, and
therefore the judgment though in rem was not held binding upon the executors.
That case has no bearing on the contention raised by the plaintiffs. Nor is the
opinion of the Judicial Committee in Sardar Gurdayal Singh v. Rajah of
Faridkote (2) of any assistance to the plaintiff;. In that case it was observed
that a money decree passed by a foreign court against an absent foreigner was
by international law a nullity. Lord Selborne in that case at p. 185 observed :
"Territorial jurisdiction attaches (with
special exceptions) upon all persons either permanently or temporarily resident
within the territory while they are within it; but it does not follow them
after they have withdrawn from it, and when they are living in another independent
country. It exists always as to land within the territory, and it may be
exercised over movables within the territory;
and in question of status or succession
governed by domicil, it may exist as to persons domiciled, or who when living
were domiciled, within the territory. As between different (1) I. L. R. (1938)
Bom. 529.
(2) [1894] L. R. 21 I. R. 171 .
53 provinces under the sovereignty (a. g.,
under the Roman Empire) the. legislation of the sovereign may distribute and
regulate jurisdiction; but no territorial legislation can give jurisdiction
which any foreign Court ought to recognise against foreigners, who.
owe no allegiance or obedience to the Power
which so legislates.
In a personal action, to which none of these
causes of jurisdiction apply, a decree pronounced in absentem by a foreign
Court, to the jurisdiction of which the Defendant has not in any way submitted
himself, is by international law an absolute nullity. He is under no obligation
of any kind to obey it; and it must be regarded as a mere nullity by the Courts
of every nation except (when authorised by special local legislation) in the
country of the forum by which it was pronounced." In Castrique v. Imri (1)
a bill issued by the master of a British ship on the owner for costs of repairs
and necessaries supplied, was dishonoured, and the endorsee a French subject
sued the master in the Tribunal de Commerce at Havre. In meantime, the owner
mortgaged the ship and became bankrupt. The Tribunal ordered the master to pay
the sum due which was "'privileged on the ship." In default of
payment the ship was seized and detained. The judgment of the Tribunal was by
the French law required to be confirmed by the Civil court of the District and
accordingly the Civil Court summoned the owner and the assignee in bankruptcy ,
but not the mortgagee and his assignee and in default of appearance decreed
sale of the ship by auction. The consignee of the mortgagee Castrique then
commenced an action in the "nature of replevy" of the ship and the court
of appeal held--though erroneously-that the bill of the sale to (1) (1870) 4 H.
L. 414.
54 Castrique not having been registered was
invalid and he had no locus standi to maintain the action. The ship was then
sold to a British subject, who brought it to Liverpool and registered it in his
own name. Castrique then commenced an action in the Court of Common Pleas in
conversion against the purchaser pleading that the sale in France was void.
The House of Lord 3 held that there was a
judgment in rem in the French Court and the title of the purchaser to the ship
could not be reagitated in the courts in England.
The proceeding in the French Court was
manifestly one in rem, for it was to enforce a maritime lien, which by the
French law was a proceeding in rem, and as the ship was in the French
territorial waters, it must in the English Court be so treated and held. These
oases do not support the plea that the judgment of a foreign court qua movables
outside its jurisdiction will not be conclusive between the same parties in an
action relating to those movables in an Indian Court.
The plea that conclusiveness of a foreign
judgment set up as a bar where that judgment was delivered after the suit in
which it is pleaded was instituted is without substance.
The language of a.3 of the Code of Civil
Procedure, 1908, is explicit a foreign judgment is made hereby conclusive
between the parties as to any matter directly adjudicated and it is not
predicated of the judgment that it must be delivered before the suit in which
it is set up was instituted. Section 13 incorporates a branch of the principle
of res judicata, and extends it within certain limits to judgments of foreign
courts if competent in an international sense to decide the dispute between the
parties. The rules of res judica applies to all adjudications in a "former
suit", which expression by the Explanation 1 to s. II of the Code of Civil
Procedure denotes a "suit which has been decided prior to 55 the suit in
question whether or not it was instituted prior thereto. This explanation is
merely declaratory of the law:
the decisions of the Courts in India prior to
its enactment establish that proposition conclusively. (Balkishan v.
Kishan Lal (1) Beni Madho v. Inder Shahi(2)
). The dictum to the contrary in The Delta : "The Erminia Foscolo
(3)" is not sufficient to justify a departure from the plain words of the
Indian Statute.
One more ground of incompetence of the Mysore
High Court to deliver the judgment set up as a bar to the trial of the Madras
suit in so far as it relates to movable needs to be adverted to. It was
submitted that Balakrishnaiya, J., was not competent to refer to a Full Bench
the appeals for hearing, after judgments recording final opinions were
delivered by him and by Kandaswami Pillai, J. To recapitulate the facts which
are material on this plea:
Appeals Nos. 104 and 109 of 1947-48 against
the judgment of the District Judge, Bangalore, filed by the executors were
heared by Balakrishanaiya and Kandaswami Pillai, JJ. The Judges after hearing
arguments differed on almost every question raised in the appeals.
Balakrishanaiya, J. was for reversing the judgment of the trial Court and
Kandaswami Pillai, J., was for affirming the same. Balakrishanaiya J., observed
in the concluding part of his judgment "In the result, I am of opinion
that the judgments and decrees of the learned District Judge cannot be
sustained and are liable to be set aside by dismissing the suits with costs
throughout." After the opinion of Balakrishanaiya, J., was delivered Kandaswami
Pillai, J., delivered his opinion. He observed, "In the result, the
judgment and the decree in the suits have to be confirmed, and regular Appeals
Nos. 104 and 109 of 1947-48 have (1) (1888) I. L R . 11 All. 148.
(2) (1909) I.L.R. 32 All. 67.
(3) L. R. (1876) P.D. 393, 404.
56 to be dismissed with costs to be borne by
appellants (defendants 1 to 3) from the estate of Ramalingam." Thereafter,
Balakrishnaiya, J., referred the case to a Full Bench under s. 15(3) of the
Mysore High Court Regulation of 1884, and signed his "judgment". The
relevant, statutory provisions then in operation relating to the procedure to
be followed in the event of a difference between Judges constituting a Bench
were these: Section 98 of the Mysore Civil Procedure Code provided:
(1) Where an appeal is heard by a Bench of
two or more Judges the appeal shall be decided in accordance with the opinion
of such Judges or of the majority (if any) of such Judges.
(2) Where there is no such majority which
concurs in 'a Judgment varying or reversing the decree appealed from such
decree shall be confirmed.
Section 15 (3) of the Mysore, High Court
Regulation, 1884, as amended by Act XII of 1930, provided:
"The decision of the majority of Judges
comprising any Full Bench of the High Court or other Bench of the said Court
consisting of not less than three Judges shall be the decision of the Court.
When a Bench of the High Court consists of
only two Judges and there is a difference of opinion between such Judges on any
material question pending before it, such question shall be disposed of in the
manner prescribed by Section 98 Civil Procedure Code or s. 429 of the Criminal
Procedure Code as the case may be or at the discretion of either of the Judges
composing the Bench it shall be 57 referred to a Fall Bench and the decision
'of the majority of the Judges on such Full Bench shall be the decision of the
High Court." If Judges constituting the Bench differed and there was no
majority concurring in varying or reversing the decree appealed from, the
judgment had to be affirmed. But it was open to the Judges or either of them to
refer under s. 15(3) of the Mysore High Court Regulation the questions on which
there was a difference to a Full Bench. The true rule envisaged by s. 15(3) of
the Mysore High Court Regulation is that the Court or the referring Judge shall
set out the material questions on which there is a difference of opinion
without expressing any opinion on the result of the appeal.
The two Judges did disagree: they disagreed on
almost every question which had a bearing on the claim made by the plaintiffs,
and they delivered their separate opinions expressing their mutual dissent, and
even incorporated in their respective opinions the final orders to be passed on
their respective views in the appeals. In. so doing the Judges committed a
procedural irregularity; but, in our judgment, this procedural irregularity
does not affect the competence of the Fall Bench constituted to hear the
reference under s. 15 (3). Balakrishanaiya, J., and Kandaswami Pillai, J., did
deliver separate and selfcontained opinions, setting out the final orders which
in their respective opinions should be made in the appeals, but their intention
was clear: they intended that in view of the difference of opinion (so
expressed the case should go before a Fall Bench, and Balakrishanaiya, J.,
passed an order for reference presumable with the concurrence of Kandaswami
Pillai, J.
The decision of. the Allahabad High Court in
Lal Singh v. Ghansham Singh (1) does not assist the (1) (1857) I.L.R. 9 All.
625 F.B.
58 plaintiffs in support of the plea that the
reference the Full Brench was invalid and the Mysore High Court was incompetent
to hear the reference. In Lal Singh's case %,be majority of the Court held that
"Where a Bench of two Judges hearing an appeal and differing in opinion
have delivered judgments on the appeal as judgments of the Court without any
reservation, they are not competent to refer the appeal to other Judges of the
Court under s. 575 of the Civil Procedure Code of 1882)." In that case, a
reference was made on a difference of opinion between two Judges, but not a
question of law. By a. 575(2), Civil Procedure Code, 1882, difference on a
question of law being a condition of reference, the reference was manifestly
incompetent; it was so pointed out by Brodhust, J., who was one of the Judges
composing the original Bench of Judges who differed. There is, however, no such
restriction in s. 15(3) of the Mysore High Court Regulation, 1884. Again, the principle
of Lal Singh's case as broadly enunciated by the majority of the Court has not
been approved in man, later cases in other High Courts; for instance, Karali
Charan Sarma v. Apurba Krishna Bajpeyi (1), Umar Baksh v. Commissioner of
Income Tax, Punjab (2) and Jehangir v. Secretary of State (3). In these cases
it was held that in each case the question is one of intention of the Judges
differing in their opinions.
The Mysore High Court held in Nanjamma v.
Lingappa (4) that it is not illegal to refer a case under s. 15(3) of the
Mysore High Court Regulation, 1884, after the Judges differing have recorded
judgments including the final orders they are to make, and without any
reservations. It was observed in the judgment of the Court ",The long standing
practice of this Court Is that one of the Judges makes a reference by a mere
record in the order (1) (1930) I L.R. 58 Cal. 549.
(2)(1931) I.L.R. 12 Lah. 725.
(3) (1903) 6 Bom. L.R. 131, 206.
(4) 4 L.R. Mys. 118.
59 sheet after the judgments are separately
pronounced." It appears therefore that there was a settled practice in the
Mysore High Court to refer cases under s. 15(3) after delivering differing
opinions including the final orders to be passed in the appeal on such
opinions. In adjudging the competence of the foreign court it would not be open
to us to ignore the course of practice in that court even if it be not strictly
warranted by the procedural law of that State.
Whether the procedure of the foreign court
which does not offend natural justice is valid is for the foreign court to
decide and not the court in which the foreign judgment is pleaded as
conclusive. In Brijlal Ramjidas v. Govindram Gordhandas Seksaria (1) the
judicial Committee in dealing with the authority of the Indore High Court to
transfer proceedings from the District Court of Indore observed :
"the question whether-a foreign Court is
the "proper Court" to deal with a particular matter according to the
law of the foreign country is a question for the Courts of that country. There
is no doubt that some Court in Indore was "a Court of competent
jurisdiction." It was for the High Court of Indore to interpret its. own
law and rules of procedure, and its decision that the High Court was the
"proper" Court must be regarded as conclusive." The Madras High
Court could not therefore investigate the propriety of the procedure followed
by the Mysore High Court referring the case to the Full Bench and the judgment
of the Mysore Full Bench was therefore not exposed to the attack of want of competence
because the case was referred after the two Judges constituting the Beach had
delivered separate and complete opinions expressing their views on the points
in dispute.
In the plaint in the Bangalore District Court
suit the plaintiffs claimed possession of the proper (1) (1947) L.R. 74 I.A.
203.
60 ties set out in the schedule on the ground
that those and other properties belonged to the joint family of which they and
their father Ramalingam Mudaliar were members, and to which they were entitled
by survivorship on the death of Ramalingam. In Schedule 'B' to the plaint the
first item was the business at Kolar Gold Fields. The claim was decreed by the
trial court but the High Court reversed the decree and dismissed the suit. The
Attorney-General submits that the judgment of the Mysore High Court was
conclusive between the parties in respect of all matters adjudicated thereby
and the Madras High Court in considering the claim of the plaintiffs in the
suit before it was debarred from investigating whether the Kolar Gold Fields
business was the separate property of Ramalingam. The issue as to the ownership
of the Kolar Gold Fields business being directly adjudicated upon by the Mysore
High Court, which was competent in an international sense as well as according
to the municipal law of Mysore in that behalf, it was submitted, that
adjudication was conclusive between the parties in the Madras suit. Reliance in
support of this submission was placed upon the definition of foreign judgment'
in s. 2 (9) of the Civil Procedure Code, 1908, and the use of the expression
,'matter' in s. 13 of the Code.
A foreign judgment is conclusive as to any
matter directly adjudicated upon thereby; but it does not include the reasons
for the judgment given by the foreign court. What is conclusive under s. 13 of
the Code of Civil Procedure is the judgment, i.e., the final adjudication, and
not the reasons Brijlal Ramjidas v. Govindram Gordhandas. (1).
Section 13 in essence enacts a branch of the
rule of res judicata in its relation to foreign judgments, but not every
foreign judgment is made conclusive in the Indian Courts by s. 13. To be
conclusive, (1) (1947) L.R. 74 I.A. 203.
61 a foreign judgment must be by a court
competent both by the law of the State which has constituted it and in an
international sense, and it must have directly adjudicated upon the
"matter" which is pleaded as res judicata. The expression
"matter" in s. 13 is not equivalent to subject matter; it means the
right claimed. To be conclusive the judgment of the foreign Court must have
directly adjudicated upon a matter, the adjudication must be between the same
parties, and the foreign Court must be a court of competent jurisdiction. Story
in his "Conflict of Laws", Eighth Edition at p. 768 s. 551 says
"In respect to immovable property every attempt of any foreign tribunal to
found a jurisdiction over it must be from the very nature of the case, utterly
nugatory, and its decree must be forever incapable of execution in rem."
Similarly, Dicey in his "Conflict of Laws" 7th Edition, Rule 85,
enunciates the rule as follows: "All rights over or in relation to an
immovable (land) are (subject to the exceptions hereinafter mentioned) governed
by the law of the country where the immovable is situate (ex situs)."
The-exceptions for the purpose of the present case are not material. In the
comments under the Rule, Dicey states at p. 513:
"The sovereign of the country where land
is situate has absolute control over the land within his dominion: he alone can
bestow effective right over it; his courts alone are as a rule, entitled to
exercise jurisdiction over such land. Consequently, any decision by an English
Court which ran counter to what the lex situs had decided or would decide would
be, in most cases a brutum fulmen." In Compandia de Mocambique v. British,
South C. De Souza v.
Samb (1) Wright, J., observed at p. 366:
"The proper conclusion appears to be that, (1) [1891] 2 Q.B. 358.
62 speaking general, subject to
qualifications depending on personal obligation, it is a general principal of
jurisdiction that title to land is to be directly determined, not merely
according to the law of the country, where the land is situate, but by the
Court, of that country, and this conclusion is in accordance with the rule
ordinarily adopted by the jurisprudence of other countries".
Title to immovable property may therefore be
determined directly or indirectly only by the law of the State, and by the
courts of the State in which it is situate. A decision of a foreign Court
directly relating to title to immovable property within its jurisdiction will
of course be regarded between the same parties as conclusive by the Courts in
India: but that decision is ineffectual in the adjudication of claims to
immovables without the jurisdiction of that foreign Court, even if the
foundation of title in both the jurisdictions is alleged to be identical. A
foreign Court being incompetent to try a suit relating to immovable property
not situate within its jurisdiction, the grounds on which its decision relating
to title to immovable property within its jurisdiction is founded will not
debar investigation into title to other property within the jurisdiction of the
municipal courts, even if the latter properties are alleged to be held on the
same title. Every issue and every component of the issue relating to title to
immovable property must be decided by the Court within whose jurisdiction it is
situate: to recognise the authority of a foreign court to adjudicate upon even
a component of that issue would be to recognise the authority of that Court to
decide all the components thereof.
In Boyse. v. Colclough (1) the Court of
Chancery in England was called upon to consider the effect to be given to a
decree of an Irish Court determining the validity of a will of one Colclough
who died (1) [1855] K. & J. 124: 69 E.R. 396.
63 leaving lands in England and Ireland. The
Court in Ireland in a proceeding relating to the will declared it invalid.
The plaintiff to whom the estate was devised
under the will by Colclough, thereafter filed a bill in the Court of Chancery
in England insisting upon the validity of the will,, and for a declaration that
the immovables in England passed under and as devised by the will. The
defendant insisted that the decree of the Court in Ireland was in regard to the
validity of the will conclusive as the judgment was of a court of competent
jurisdiction between the parties. page Wood V. C. rejected the defendant's
plea. He observed ",The foreign Court in this case did not try and could
not try the effect of the will of the testator on land in England. It is
impossible that the question could even, in any shape be raised before that
Court in that suit, or, apprehend, in any suit. The Court had before it a
certain alleged will, purporting to devise certain Irish estates, and it
directed an issue to try the validity of that will.
The issue was founded against the validity of
the will and the Court then decided upon the only thing upon which it could
decide, namely, that that instrument was not an operative devise of the Irish
estates." This case was again brought before the Court, and the judgment
is reported in (1855) K. & J. 502--69 E. R. 557. It was directed that to
prevent misconception an order of the Court of Chancery in England, establishing
the will should be expressly limited to the extent of the jurisdiction. In
Chockalinga v. Doraiswamy(1) a dispute arose between two persons each of whom
claimed the right to trusteeship of three religious endowments known as
Chidambaram, Mailam and Alapakkam charities. Of the Chidambaram charities all
the lands were in British Tndia and the charities were to be carried out also
in British India. In the Mailam charities the performance was to be in British
India and Pondicherry (French (1) (1927) I.L.R. 51 Mad. 720.
64 territory), and a large majority of the
immovable properties were in Pondicherry and only one in British India. In a
suit filed in the Subordinate Judge 's court at Pondicherry, the trial court
held that the first defendant Doraiswamy could not act as trustee because the
original trustee Murugayya had no power to appoint him. The Appellate Court
reversed the decision and held that Doraiswamy was properly appointed. A suit
was then instituted in the British Indian Court in which the question as to the
right of Doraiswamy to function in respect of immovable property_ in British
India was questioned. The Court held that to Alapakkam charities, neither the
plaintiff nor the 1st defendant had any rights because by the deed of
settlement the right of trusteeship descended to the sons of Mtirugayya. About
the Chidambaram charities it was hold by the court that the Pondicherry court
had no jurisdiction as all the properties were situate in British India and
"Charities were to be performed" in British India. About the Mailam
charity, Kumaraswami Sastri, J., held that in respect of the property in
British India the order was not binding, but having regard to the nature of the
trust and the inexpediency of having separate management and appropriation of
the income of the trust the British Indian Courts would be justified in
upholding the claim of the trustee appointed by the Pondicherry court in
respect of that charity. Srinivasa Aiyangar, J., held that as the Mailam
charity had its "domicile" in the French territory, the decision of
the French Court with regard to the appointment of the trustee, and recovery by
him of the office of trustee was a decision of a Court of competent
jurisdiction within the meaning of s. 13, Code of Civil Procedure. The judgment
proceeded upon the theory of "domicil" of the trust which the learned
Judge himself characterised as "inappropriate" but he held that
"on a proper application and appreciation of principles of Private
International Law" in disputes 65 relating to the office of trusteeship
the court of competent jurisdiction within the meaning of s. 13 is the court
which can be regarded as court of the situs of the trust. It is difficult to
accept this view expressed by Srinivasa Aiyangar, J. It is, however, noteworthy
that both the learned Judges held that the decision of the foreign court qua
the Chidambaram and the Alapakkam trust was not binding on the Indian Courts.
The decisions in Samson Ricardo and Johan
Lewis Ricardo v. Garcias (1), Elizabeth Hendren v. Bathal Hendren (2) and Bank
of Australia v. Nios (3) on which the executors rely are not of cases in which
an issue decided by the foreign court was regarded as conclusive in the trial
of a suit relating to title to immovable property in England. The decision in.
Dogliani v. Crispin (4) also does not support the plea of the executors. In
that case the judgment of a Portuguese Court holding that the defendant was the
illegitimate son of one Henry Crispin and entitled according to the law of
Portugal to inherit the property of Henry Crispin who was of a particular
station in society (a plebian and not noble), and was domiciled in Portugal was
held binding between the parties in an administration action in the Court of
Probate in England between the same parties relating to Government of England
Stock. The Court in that case was not called upon to decide any question of
title to immoveables in England.
The rule of conclusiveness of a foreign
judgment as enacted in s. 13 is somewhat different in its operation from the
rule of res judicata. Undoubtedly both the rules are founded upon the Principle
of sanctity of judgments competently rendered. But the rule of res judicata
applies to all matters (1) (1845) 12 Clark & Finnolly 367 : 8 E. R. 1450.
(2 ) (1844) 6 Q. B 287 : 115 E R. 311.
(3) [1851] 16 Q. B. 717 : 117 E. R. 1055 (4)
L. R. (1810)1. English & Irish Appeal Cases 30'.
66 in issue in a former suit which have been
heard and finally decided between the parties, and includes matters which might
and ought to have been made ground of attack or defence in the former suit. The
rule of conclusiveness of foreign judgments applies only to matters directly
adjudicated upon. Manifestly, therefore, every issue heard and finally decided
in a foreign court is not conclusive between the parties. What is conclusive is
the judgment.
Again, the competence of a Court for the
application of the rule of res judicata falls to be determined strictly by the
municipal law; but the competence of the foreign tribunal must satisfy a dual test
of competence by the laws of the State in which the Court functions, and also
in an international sense.
The submission of the Attorney-General that
the claim made by the plaintiffs in the Mysore suits was one relating to
succession to the estate of Ramalingam, and the decision of the Mysore Court
which adjudicated upon the question as to the right to succession was
conclusive as to all propertywhether within or without jurisdiction-need not
detain us.
The suit as framed did not relate to
succession to the estate of Ramalingam: the plaintiffs claimed that they had
acquired according to the well-recognised rule relating to coparcenary
property, an interest therein by birth, and that Ramalingam's interest in the
property was on his death extinguished. Succession to the estate of a person is
governed by the lex situs in the case of immovables, and in the case of
movables by the law of his domicile, but these appeals raise questions not
about the law applicable to the devolution of the, estate, but about title
which the testator could devise by his will. That title must be adjudicated
upon in the case of immovables by the Courts of the country in which such
immovables are situate and on evidence led in that court.
67 In considering whether the suit filed by
the plaintiffs was one relating to succession, cases like in the matter of the
Hindu Womens' right to Property Act, 1937(1), and in the matter of the Federal
Legislature to provide for the Levy of an Estate Duty in respect of property
other than agricultural land, passing upon the death of any person (2) which
deal primarily 'with. questions as to the power to legislate in respect of
interest of a co-parcener in a joint Hindu family have little relevance.
The suits also did not relate to the personal
status of Ramalingam and his sons. The plaintiffs claimed in the Mysore High
Court that the will of Ramalingam was invalid, because be was under the Hindu
Law, by which he was governed, incompetent to dispose of thereby the property
of the joint family. The dispute related primarily to the character of the
property devised by the will, and the Mysore High Court held that the property
devised under the will was his self-acquired property: it did not purport to
adjudicate upon any question of personal status of the parties to the dispute
before it.
We may now consider the plea that "the
judgment of the Mysore High Court was coram non judice." It was urged that
the Judges of the Mysore Court who constituted the Full Bench, were biased
against the plaintiffs, that they were interested in the dispute before them
and that they denied opportunity to the, plaintiffs to defend the appeals. It
was urged by the plaintiffs that Mr. Medappa who presided over the Full Bench
had tried the probate proceeding in which the will of Ramalingam was upheld and
in the judgment in that case bad made severe strictures against ",the
family of the plaintiffs", and the witnesses appearing in support of the
caveators' case, that Mr. Medappa was a close friend (1) [1941] F. C. R. 12.
(2) (1944) F. C. R. 317.
68 of A. Wajid, the first executor under the
will, that be had for many years before and after he became a Judge of the High
Court used a motor car belonging to the estate in dispute and had attempted to
dissuade Raju, advocate of the plaintiffs, from appearing for them in the suit
relating to thee-state. Against Mr. Balakrishanaiya, it was urged that he
should not have Fat on the Full Bench as he was to be examined as a witness in
the matter relating to proof of the settlement of the dispute between the
parties, that he bad made up his mind and had delivered a judgment expressing a
final opinion on the merits of the appeal and on that account was biased
against the plaintiffs, and that he bad in the course of the hearing of the
appeals sitting with Kandaswami Pillai, J., made diverse observations
indicating that he was not open to argument, reconsideration and independent
conviction on the merits of the dispute. It was also urged that the proceedings
in the Mysore High Court were conducted in an atmosphere of vindictiveness
towards the plaintiffs and that observations made and orders were passed from
time to time by Mr. Medappa and Mr. Balakrishnaiya at diverse stages of the
hearing of the appeal which left no room for doubt that the two Judges were
biassed against the plaintiffs and that they by their orders denied to the
plaintiffs an opportunity of presenting their case before the Court.
Before we deal with the contentions it may be
necessary to dispose of the contention advanced by the executors that it is not
open in this suit to the plaintiffs to raise a contention about bias prejudice,
vindictiveness or interest of the Judges constituting the Bench. They submitted
that according to recent trends in the development of Private International law
a plea that a foreign judgment is contrary to natural justice is admissible
only if the party setting up the plea is not duly 69 served, or has not been
given an opportunity of being head.
In support of that contention counsel for the
executors relied upon the statement made by the Editors of Dicey's
"Conflict of Laws", 7th Edition Rule 186 at pp. '1010-1011 and
submitted that a foreign judgment is open to challenge only on the ground of
want of competence and not on the ground that it is vitiated because the
proceeding culminating in the judgment was conducted in a manner opposed to
natural justice. The following statement made in "Private International
Law" by Chesire, 6th Edition pp. 675 to 677 was relied upon:
"The expression 'contrary to natural
justice has, however, figured so prominently in judicial statements that it is
essential to fix, if possible, its exact scope. The only statement that can be
made with any approach to accuracy is that in the present context the
expression is confined to something-glaringly defective in the procedural rules
of the foreign law. As Denman, C. J., said in an early case:
"That injustice has been done is never
presumed, unless we see in the clearest light that the foreign law, or at least
some part of the proceedings of the foreign court, are repugnant to natural
justice: and this has often been made the subject of inquiry in our
courts." In other words, what the courts are vigilant to watch is that the
defendant has not been deprived of an opportunity to present his sides of the
case. The wholesome maxim audi alteram partem is deemed to be of universal, not
merely of domestic, application. The problem, in fact, has been narrowed' down
to two cases.
The first is that of assumed jurisdiction
over absent defendants a ...........................
70 Secondly, it is a violation of natural
justice if a litigant, though present at the proceedings, was unfairly
prejudiced in the presentation .of his case to the Court." It is
unnecessary to consider whether the passages relied upon are susceptible of the
interpretation suggested, for private international law is but a branch of the
municipal law of the State in which the court which is called upon to give
effect to a foreign judgment functions and by s. 13 of the Civil Procedure Code
(Act V of 1908) a foreign judgment is not regarded as conclusive if the
proceeding in which the 'judgment was obtained is opposed to natural justice.
Whatever may be the content of the rule of private international law relating
to "Natural justice" in England or elsewhere (and we will for the
purpose of this argument assume that the plea that a foreign judgment is
opposed to natural justice is now restricted in other jurisdictions only to two
grounds want of due notice and denial of opportunity to a party to present
case) the plea has to be considered in the light of the statute law of India;
and there is nothing in s. .13 of the Code of Civil Procedure, 1908, which
warrants the restriction of the nature suggested.
By s. 13 of the Civil Procedure Code a
foreign judgment is made conclusive as to any matter thereby directly
adjudicated upon between the same parties. But it is the essence of a judgment
of a Court that it must be obtained after due observance of the judicial
process, i.e., the Court rendering the judgment must observe the minimum
requirements of natural justice-it must be composed of impartial persons,
acting fairly, without bias, and in good faith, it must give reasonable notice
to the parties to the dispute and afford each party adequate opportunity of
presenting his case. A foreign judgment of a competent court is conclusive even
if it proceeds on an erroneous view of the evidence or the law, if the minimum
requirements of the judicial 71 process are assured : correctness of the
judgment in law or on evidence is not predicated as a condition for recognition
of its conclusiveness by the municipal court. Neither the foreign substantive
law, nor even the procedural law of the trial need be the same or similar as in
the municipal court.
As observed by Charwell, J , in Robinson v.
Fenner(1) "'In any view of it, the judgment appears, according to our law,
to be clearly wrong, but that of course is not enough :
Godard v. Gray (2) and whatever the
expression "contrary to natural justice", which is used in so many
cases, means (and there really is very little authority indeed as to what it
does mean), I think that it is not enough to say that a decision is very wrong,
any more than it is merely to say that it is wrong. It is not enough,
therefore, to say that the result works injustice in the particular case,
because a wrong decision always does." A judgment will not be conclusive,
however, if the proceeding in which it was obtained is opposed to natural
justice. The words of the statute make it clear that to exclude a judgment
under el.
(d) from the rule of conclusiveness the
procedure must be opposed to natural justice. A judgment which is the result of
bias or want of impartiality on the part of a Judge will be regarded as a nullity
and the "trial coram non judice" (Vassilades v. Vassilades and Manik
Lal v.Dr.Prem chand (4)).
We may now deal with the diverse objections
raised against the two Judges-Mr. Medappa and Mr. Balakrishanaiyaalleging bias
and partiality against them and also against the court collectively. In
proceeding to deal with evidence, it has to be remembered that we are dealing
with the judgment of a foreign tribunal constituted according to the laws of
the foreign State for hearing the appeal. We also cannot forget that the
conduct of the plaintiffs and their. lawyer may have (1) [1913] 3. K. B. 835,
842.
(2) [1870] L.R. 6 Q. B. 139.
(3) A.I R. 1945 P.C. 33,40.
(4) [1957] S. C. R. 575.
72 appeared to the learned Judges as asking
for unreasonable indulgence if not offering deliberate obstraction, and that
the Judges in passing the diverse orders on which the plea of bias, prejudice
and interest were sought to be founded were primarily concerned with effective
progress and disposal of the appeals.
It is somewhat unfortunate that all the
material evidence which had bearing on the case as to the allegations of bias,
prejudice interest and hostility has because of certain orders passed by the
Madras High Court not came on. the record. Again Raju, the advocate of the
plaintiff could not be examined at the hearing of the suit as he was undergoing
a long term of imprisonment and the commission issued by the Madras High Court
to examine him as a Witness could not be executed owing to, what Ramaswamy, J.,
in his characteristic style states, "interminable legal obstacles and
conundrums which arose." For the examination of Mr. Medappa an order was
made and commission was issued but the executors did not ultimately examine
him. Mr.Balakrishanaiya was examined in Court but even his evidence was not
full because of the order passed by Rajagopalan, J. restricting the scope of
enquiry of conclusiveness laid down by him on the issue and which was confirmed
by the Appellate Court. It may be recalled that the executors applied to the
learned Judge for an order that the suit be heard on the preliminary issue,
that it was "barred as res judicata because of the judgment of the Mysore
High Court" and for examination of witnesses in Bangalore on the plea set
up by the plaintiffs of pronounced hostility and bias on the part of Mr.
Medappa, and Mr. Balakrishanaiya. The learned Judge passed an order that on the
allegation that had been made on the application against the two Judges of the
Mysore High Court it was not permissible to embark upon an investigation
relating to the manner in which the appeals were conducted 73 or with reference
to their decisions in other legal proceedings connected or otherwise with the
appeals that they eventually heard. But on the plea of bias, prejudice and hostality
the evidence relating, to the manner in which the proceedings were conducted by
the Judges and various orders made were, in our judgment, material. Rajagopalan
J.
permitted evidence to be led on two matters
only (1) that Mr. Medappa was using a motor car belonging to the estate of the
deceased, and (2) that Mr. Medappa had sent for Raju, counsel for the
plaintiffs and bad attempted to dissuade him from taking Up the case of the
plaintiffs and appearing for the plaintiffs' family. In appeal against the
order of Rajagopalan, J., the High Court of Madras held that the enquiry into
the use of the "Mercedes car" belonging to the estate by Mr. Medappa
was not permissible. The learned Judges observed: "It is not as if the
plaintiffs have alleged that Medappa, C.J. had claimed the Mercedes car to be
his own and was therefore, not a person competent to decide on the title to the
properties under a. 13 (a). It was merely alleged that he used the car for
himself and his wife and children. It was not even stated whether he had used
the oar free or for hire. There was no claim by the plaintiffs or others on
Medappa, C.J., for any dues in respect, of the alleged use of the car. The car
itself was alleged to have been used in 1943-45 when Medappa, C. J., was
District Judge, Bangalore Cantonment, and was hearing the probate application.
It was sold away in 1945 or 1946, long before Medappa, C. J., sat on this Full
Bench. It is too much to say that, from these facts C. J., would be coram non
judice, or he had identified himself with the executors, and that his taking
part in the Full Bench would, be opposed to natural justice." These
observations contained certain statements which are either in exact or not
supported by evidence. According to the plaintiffs, Mr. Medappa because a Judge
of the High Court at 74 Mysore in 1944 and that is amply supported by evidence
on the record. Against, our attention has not been invited to anything on the
record that the Merceds-car" was disposed of in the year 1915-46. But the
evidence relating to the use of the motor car was-excluded by this order.
About the attempts made by Mr Medappa to
persuade Raju not to appear for the plaintiffs in the District Court, no direct
evidence was led. The direct evidence about the alleged dissuasion of Raju
could only be of Raju and Mr. Medappa, but this evidence has, because the
parties did not choose to examine them, not come on the record. But some
indirect evidence was sought to be led before the High Court about the alleged
dissuasion. Raju had made an affidavit in June 1950 in this Court in certain
proceedings taken by the plaintiffs for the issue of a writ of prohibition
restraining execution of the decree passed in Appeals Nos.
104 and 109 of 1947-48 of the file of the
High Court of Mysore on the ground that because Mr. Medappa and Mr. Balakrishanaiya
who were members of the Bench were incompetent for diverse reasons to hear and
decide the appeals, the judgment of the High Court was a nullity. In that
affidavit Raju stated that he was an Advocate for the plaintiffs who had filed
two suits against the executors of the estate of Ramalingam and that
"during the later part of 1945 and the beginning of 1946," Mr. P.
Medappa who was.
then a Puisne Judge of the High Court of
Mysore, Bangalore, tried to dissuade him from appearing for the family of
Ramalingam and vehemently criticised the family members.
This was not evidence on which the Court
could act. Raju was alive and could be examined : the Court had not directed
proof of any facts by affidavits, and the executors had no opportunity to
cross-examine Raju on the statements made in the affidavit. Vishwanath the
first plaintiff deposed 75 that sometime before the hearing of the appeals
before the Fall Bench of the Mysore High Court he was told by Raju that Mr.
Medappa had tried to dissuade him from appearing for the plaintiffs in the
District Court of Bangalore. He further stated that on July 25, 1949, during
the course of the hearing of the appeals before the Full Bench Raju had stated
in open Court that "he was not competent to take up the case on account of
the dissuasion by the Chief Justice" and that "Chief Justice Medappa
had 'sent for him and dissuaded him from appearing on behalf of Ramalinga's
family. Thereupon Chief Justice Medappa felt upset and refused to hear"
Raju.
He also deposed that Mr. Puttaraj Urs (who
was for some time a Judge of the Mysore High Court had told him that Raju had
told Urs that Medappa had asked him Raju not to appear for the
"plaintiffs" "family" and had sent for him and dissuaded
him from appearing for Ramalinga's family. Elaborate argument were advanced
before us as to the truth of the statements made by Vishwanatha and Puttaraj
Urs. It was urged that the statement about the dissuasion of Raju was made for
the first time in the Madras High Court on April 7, 1950, and that it was not
made by Vishwanath in the Mysore Court or in the petitions to H. H. The
Maharaja of Mysore for constituting "an ad hoc Bench" for hearing the
appeals. It was pointed out that there were atleast two earlier occasions in
the Madras High Court in which Vishwanath could have made the allegations
relied upon by him in his affidavit dated April 7, 1950. Strong reliance was
also placed upon a letter dated August 21, 1952, addressed by the 1st plaintiff
Vishwanatba to the executor Abdul Wajid that the allegations made in
Application No. 444 of 1950 and the affidavit filed in the Madras High Court
that the Judges of the Mysore High Court were prejudiced and that Mr. Medappa
had used the "estate 76 motor-car" and bad asked Raju not to appear
for the plaintiffs had been put forth by him as their advocates told him that
they were the only method of challenging the judgment of the Full Bench and
that he had been assured that those allegations were true and that they would
supply the evidence in support of these allegations and it was at their
instance and believing their assurances that he incorporated the allegations in
his affidavit. It was further stated that he was not able to find any credible
evidence at that time to support these allegations and hence withdrew them all
and proposed to lot in no evidence on those allegations for the decision of the
preliminary issue.
This question does not call for any detailed
examination.
There is no direct evidence about the alleged
dissuasion of Raju by Mr. Medappa during the course of the hearing in the trial
Court, and the indirect evidence is mostly hearsay and otherwise infirm. The
evidence of Puttaraj Urs has little value he has no personal knowledge about
the attempted dissuasion of Raju by Mr. Medappa. He only relates what he heard
from Raju. But the truth of the statement cannot be established by this
indirect method. The evidence of Vishwanath as to what Raju told him before the
hearing of the appeals is also of no value. About the incident which took place
in the Court on July 25, 1949, there is the statement of Vishwanatha on the one
hand which is contradicted by Abdul Wajid and Narayanaswamy, the two executors,
and no questions in that behalf were asked to Mr. Balakrishanaiya. In this
state of the record we do not think that we would be justified in disagreeing
with the High Court that the case that Mr. Medappa persuaded Raju, counsel for
the "plaintiffs, family" has not been proved.
We may, however, state that we are unable to
accede to the contention raised on behalf of the 77 executors that the letter
dated August 21, 1952, furnishes evidence that the allegation regarding
dissuasion of Raju and about the use of the motor car of the estate was an after-thouht
and made by Vishwanatha at the instance of his advocate. This letter was
written when Suit No. 214 of 1944 was pending in the High Court at Madras. In
that suit the judgment of the Mysore High Court was challenged on the ground
that the Judges who heard the appeals were interested and biassed, and liberty
was reserved by Rajagopalan, J., to the plaintiffs to lead evidence on those
two matters only.
We are unable to believe that of his own
accord Vishwanatha would address a letter to the executor Wajid and
substantially destroy his case for setting aside the judgment of the Mysore
High Court. Vishwanatha has stated in his evidence that he prepared the letter
at the instance of Wajid to "prove his bona fides with Medappa." He
stated that the letter was written at Bangalore, in the office of one
Subramaniam brother of the executor Narayanaswami in the presence of Wajid
about 2 or 3 months prior to August, 1952, and that about that time there were
"meetings and talks of commissioner and that Wajid had told him that the
letter "was necessary to prove the bona .fides with Medappa before
reaching the compromise." Wajid has denied that he had persuaded
Vishwanatha to write the letter. But the story about delivery of the letter at
the residence of Wajid is highly improbable. Wajid says that the letter was
delivered by hand by some unknown person at his place in his absence.
This letter was followed by another letter
addressed to Subramaniam brother of the executor Narayanaswami dated August 25,
1952, in which there is a reference to the letter dated August 21, 1952. This
letter was addressed to S. N. Subramaniam, brother of Narayanaswami, and
recites that a copy of the letter addressed to Wajid dated 78 August 21 1952,
was sent to Subramaniam By that letter Viswanatha requested Subramaninm as
"well-wisher of the family" and a friend of his father "to take
into consideration the plight in which the family was and to intercede" on
their behalf "with the executor to secure as much benefit as possible by
way of compromise." A photostat copy of this letter has also been produced
by Wajid.
Vishwanatha stated that even this letter was
prepared at the instance of Wajid. He asserted that the first letter was
prepared on the representation that it was to be shown to Mr. Medappa, and the
second letter was composed by Wajid.
Wajid, bad denied the allegations. We do not
think that Vishwanatha voluntarily wrote the two letters admitting that the
allegations that Medappa was biassed against him and the ground for such allegations
were invented shortly before April 7, 1950, at the instance of the lawyers of
the plaintiffs.
Mr. Medappa did try the probate proceeding
and dismissed the caveat filed by The plaintiffs but on that account we are
unable to hold that be had any interest in the subject matter of the appeals or
was biased against the plaintiffs.
Our attention has not been invited to any
part of the judgment in the probate proceeding which might. supply any ground
for inferring bias. Even though some of the witnesses in the probate proceeding
and in the suit for declaration of title of the plaintiffs to the properties
were common it would not be possible to infer bias merely from the
circumstances that Mr. Medappa as District Judge tried the earlier suit in
which the enquiry was strictly restricted to the validity of the *ill and be
subsequently was a member of the Full Bench of the Mysore High Court which
decided the question of title set up by the plaintiffs.
79 The plea that Mr. Medappa and Wajid were
close friends does not appear to have been denied by the executors. In his
affidavit filed in June, 1950, the first plaintiff Vishwanath alleged that Mr.
Medappa was a friend of the executors, and that Mr. Medappa was the Chief
Steward of the Trurf Club and the first executor Wajid was the Secretary and
that they were "intimate and bosom friends," Wajid did not deny these
allegations. He merely stated that he "was once the Hony. Secretary of the
Bangalore Race Club for about three months on account of the removal of the permanent
secretary. As a Stop-gap arrangement, (he) being a Committee Member was
appointed to act as secretary for this short period. Mr. Justice P. Medappa was
appointed by His Highness the Maharaja as a steward of the club", and
submitted that "it was insulting and improper to suggest that a Judge was
biassed because he came into social contact with other gentlemen of the State
in the course of his public and social activities. In his affidavit dated July
5, 1950, Vishwanath stated that Mr. Medappa and Abdul Wajid have "been
very intimate friends, and chums for over a decade." Mr. Balakrishanaiya,
it is true, did hear the appeals sitting with Chief Justice Paramsbivayya. It
is the plaintiffs' case that after hearing arguments for over a fortnight, Mr.
Balakrishanaiya suggested that the parties should compromise the dispute. Mr.
Balakrishanaiya has denied this statement ; be stated that the parties
themselves decided to negotiate a compromise. Even if it be true that be
suggested that the possibility of a compromise of the dispute be explored, bias
on his part from that suggestion cannot be inferred. It is also true that
sitting with Kandaswami Pillai, J., on March 15,1949, he declined to order an
enquiry into the compromise set up by the plaintiffs on the ground that to
record the compromise would "result in the entire 80 intention of the
testator being completely negatived." Assuming that the order was, in law,
incorrect-on that question we cannot express any opinion-the making of this
order will not justify an inference of bais on the part of Mr.Balakrishanaiya.
It was also alleged against him that he bad never "disguised his
hatred" of the "widow and children of Ramalingam" and had
"openly declared it by his frequent observations and interruptions in the
course of the plaintiffs' counsel's arguments" (vide affidavit field in
June 1950, in the proceedings in this Court for a writ of prohibition). It was
further alleged in the affidavit of Vishwanath dated April 7, 1949, that Mr.
Balakrishanaiya had from the beginning become ,"openly hostile and his
hostility had become pronounced after the retirement of Chief Justice
Paramshivayya." In the course of his cross-examination Mr. Balakrishatiaiya
denied the suggestion that he was hostile to the members of "the plaintiffs'
family". As no enquiry was permitted to be made on these matters by the
order of Rajagopalan, J., evidently all the material evidence is not before the
Court. Vishwanath in his evidence has not spoken about the statements alleged
to have been made by Mr. Balakrishanaiya from which bias may be inferred. We
are unable to hold, therefore, on the plea of the plaintiffs that the conduct
of Mr. Balakrishanaiya at the hearing of the appeal sitting with Kandaswami
Pillai, J., supports the plea that he was biassed. The contention that after
the plaintiffs had informed the Court Mr. Balakrishanaiya was to be examined as
a witness in the compromise petition, the latter should not have set in the
Fall Bench has, in our judgment, no substance. The application for recording
the compromise was disposed of on March 15, 1949, and the Court without
enquiring into the truth or otherwise of the compromise set up, declined to
permit such a compromise to be made a decree of the Court of the sole ground
that it was "contrary 81 to the intention of the testator." There
could, thereafter, be no scope for any enquiry into the truth of the plea set
up by the plaintiffs about the compromise between them and the executors.
It would have been more consonant with
justice if the application for recording a compromise was posted for hearing
before a Bench of which Mr. Balakrishanaiya was not a member especially when
the plaintiffs formally ;objected to him, but from the circumstance that of the
bench as constituted he was a member, an inference of bias cannot be raised.
Even according to Vishwanath, Mr. Balakrishanaiya stated that he was
"sitting for hearing the appeals" with Kandaswami Pillai, J., because
he was so directed by the Chief Justice, and that Mr. Balakrishanaiya gave Vishawanath
liberty to move the Chief Justice for an order for constituting another Bench.
Vishwanath says that he did go to see the Chief Justice but the Chief Justice
ordered him out of his Chamber.
The last ground on which the plea of bias is
set up is that Mr. Balakrishanaiya had delivered a judgment on the merits of
the dispute and had incorporated therein the final order to be passed in the
appeal, and thereafter he referred the case to the Full Bench and sat as a
member of the Full bench after making up his mind on the merits of the appears.
This, it is contended, is opposed to natural
justice. It was submitted that it is of the essence of a judicial trial that
the Judge should be unbiassed and must have no predilections for either side,
but Mr. Balakrishanaiya having made up his mind on the merits of the dispute of
which fact the judgment delivered by him is strong evidence, be was incompetent
to sit in the Full Bench for hearing the appeals.
Our attention was invited by the
Attorney--General to a large number of decisions of the Courts 82 in India and
England in support of his plea that in the absence of a statutory provision a
Judge is not prohibited from sitting in an a appeal or in an application
against his judgment. Our attention was also invited to a number of decisions
of the Allahabad High Court in which it was held that in reference under s. 575
of the Code of Civil Procedure 1882, the Judges differing should sit on the
Bench together with other Judges and decide the appeal (e.g., Rohilkhand and
Kumaon Bank Ltd. v. Row and also to the practice prevailing in certain
Chartered High Courts of Judges presiding at the Sessions trial being
associated at the hearing oil a certificate granted by the AdvocateGeneral
under el. 26 of the Letters Patent, e.g., The King Emperor v. Barendra Kumar
Ghosh (2) and Emperor v. Fateh Chand Agarwalla (3), and to cases in which in
appeals under cl. 10 of the Letters Patent of the Allahabad High Court Judges
who decided the proceeding in the first instance sat in the Court of Appeal,
e.g., Lyell v. Ganqa Dai (4), Daia Chand v. Sarfraz (5), Imam Ali v. Dasaundhi
Ram (6), Nanak Chand v. Ram Narayan (7), Rup Kuari v. Ram Kirpa Shukul(8) and
Kallu Mal v. Brown(9), and also to the statutory provision of O.XLVII of the Civil
Procedure Code of 1908 permitting review before the Judge who decides a suit or
appeal. Reliance was also placed upon R. v. Lovegrove (10) in which it was held
that on an application or appeal to the Court of Criminal Appeal (in England)
there is a general rule no object on to the trial Judge sitting as a member of
the Court to hear the application or appeal. It may appear, that in the absence
of a statutory provision the fact that a judge sits in appeal or in an
application against a judgment after (1) [1884] I.LR.6 All. 468 (2)A.I.R. 1924
Cal. 75 257.
(3, (1916) I.L.R. 44 Cal. 477.
(4)(1875)I.L.R. I All 60.
(5) (1875) I.L.R. 1 All. 117. (6)(1877)
I.L.R. I All. 508.
(7) (1879) I.L.R. 2 All. 181. (8)(1880)
T.L,R. 3 All. T41.
(9) (1881) I. L.R. 3 All. 504. (10)(1951) I
All. E.R 804.
83 he has decided the case would not by
itself render the judgment of the Court invalid. In a strictly technical sense
therefore it is true to say that a Judge is not incompetent to sit in an appeal
or application against his own judgment. But the courts are not merely
concerned to deal with cases in a rigid spirit of legalism. It is of the
essence of a judicial trial that the atmosphere in which it is hold must be of
calm detachment and dispassionate and unbiassed application of the mind. It may
be pertinent to observe that since the Federal Court was constituted and after
this Court was invested with jurisdiction to try appeals there has occurred no
case-our attention has not been invited to any-in which a Judge who bad tried a
case in the High Court or elsewhere sat in appeal against his own judgment
sitting in the Federal Court or in this Court. The practices prevailing in the
High Courts of including a Judge against whose judgment an appeal or
proceedings in the nature of an appeal is filed, appears to have also fallen
into desuetude and it is proper that it should. Whatever may have been the
historical reasons in England and whatever may be the technical view as to the
constitution of a Bench in which one or more Judges sit after they have
expressed their opinion-not tentative but final,-the practice which permits a
Judge to sit in appeal against his own judgment or in cases in which he had an
opportunity of making up his mind and to express his conclusion on the merits of
the dispute has little to commend itself for acceptance. We are therefore
unable to agree that the circumstance that Mr. Balakrishanaiya delivered a
final opinion in the appeals filed by the plaintiffs and thereafter sat in the
Full Bench even after objection was raised by the plaintiffs to his
participation may be discarded altogether from consideration in deciding
whether in the light of other 84 circumstances the plaintiffs had a fair trial
and they were afforded an adequate opportunity of presenting their case before
an unbiassed court. If the circumstances established by the other evidence
disclose a prima facie case of bias, the fact that Mr. Balakrishanaiya
notwithstanding the objection raised by the plaintiffs sat in the Full Bench,
after expressing his final opinion may have to be taken into account.
We may now proceed to deal with the grounds
on which it is claimed on behalf of the plaintiffs they had no opportunity of
being heard before the Full Bench of the Mysore High Court consisting of unbiassed
Judges. The plaintiffs succeeded before the District Judge in establishing that
the property disposed of by Ramalingam by his will dated September 10, 1942,
was joint-family property. Against that decision appeals were filed in December
1947. The appeals were taken up for hearing in September 1948: and the hearing
lasted more than a fortnight. On September 20, 1948, the Court adjourned the
proceeding to enable the parties to negotiate a compromise. It is the
plaintiffs' case that the dispute was settled, but that is denied by the
executors.
On November 22, 1948, according to the
plaintiffs, the terms of compromise were to be filed in Court, but on that date
one of the Judges-Mr. Paramshivayya did not sit in Court because he was
"compulsorily retired". Mr Medappa who was appointed Acting Chief
Justice was admittedly a friend of Wajid, the principal executor under the will
of Ramalingam, The plaintiffs say that Mr. Medappa was biassed against the
members of their. family and they were unwilling to have the appeal heard by
Judges who had dealt with the case or were close friends of one of the parties.
On January 5, 1949, the plaintiffs submitted an application requesting the
Court to move the Government of Mysore to 85 constitute a special Bench. It was
stated in that application that Mr. Balakrishanaiya would have to be a witness
in the compromise petition; Mr Kandaswami Pillai had delivered a judgment in a
connected proceeding; and that other Judges had ,,,dissociated themselves"
from the case.
This application was rejected on January 10,
1949, by Acting Chief Justice. Another application dated January 29, 1949,
stating that the plaintiffs had approached the Government of Mysore to
constitute an ad hoc special Bench to hear the appeals and praying that the
hearing may be postponed was rejected on February 7, 1949, as ",not
maintainable". The appeals were then posted for hearing on February 14,
1949), but at the request of the executors the hearing was adjourned, the
ground for adjurnment being that their counsel was busy in a case posted on
that date for hearing in a Court in Orissa. Another application dated 'March 7,
1949 for adjournment to enable the Government to consider the application for
constituting a special ad hoc, Bench wag also rejected by order of the Acting
Chief Justice on March 12, 1949. On March 15, 1949 the Court consisting of Mr. Balakrishanaiya
and Mr. Kandaswami Pillai rejected the application for recording compromise set
up by the plaintiffs. The appeals were then taken up for hearing. At that time
another application for adjournment was made by counsel for the plaintiffs
stating that the appeal against the order in the probate proceeding was pending
before the Judical Committee and the decision in that appeal may be awaited :
this application was rejected on the ground that a similar application
previously made had been dismissed. It is the plaintiffs' case that Mr.
Balakrishanaiya during the course of the hearing made observations from time
.to time that in his opinion there was no substance in the plaintiffs' case.
Vishwanath in his affidavit dated April 7, 1950, hat; stated what according to
him transpired in the Court 86 "9. Finding that any further argument
before Mr. Justice Balakrishanaiya was practically unless, my counsel Mr. N. R.
Raghavachariar left for Madras and my counsel Sri L.S. Raju filed a memo
seeking for permission to retire as he could do no useful service to his
clients in further addressing the Court in the circumstances mentioned."
"10. Objection was taken to this retirement by the other' side and my
counsel Sri L.S. Raju who bad by that time discontinued addressing further
arguments was asked whether he had my consent to retire. 'I was then present in
Court and Sri L.S. Raju said that it is only at my instance, he was
retiring." "11. At this stage, Justice V. Kandaswami Pillai
intervening stated that he was new to the case and that he has not made up his
mind and requested my counsel Sri L.S. Raju to give the benefit of his
arguments." Vishwanath in the same affidavit also stated that Mr. Balakrishanaiya
had been "openly hostile" to the plaintiffs.
On this part of the case, by the order ,of
Rajagopalan, J., no evidence was permitted to be given. The record, therefore,
contains merely an assertion made by the plaintiffs and denial by the
executors. After the judgment was delivered by the Court on April 2, 1949,
Judges having differed the case was referred to a larger Bench. On June 23,
1949, the Registrar of the High Court notified that the appeals will be posted for
hearing in the last week of July.
It appears that on July 4, 1949, the
plaintiffs submitted an application for adjournment stating that Sir Alladi
Krishnaswami Ayyar, a leading member of the Madras Bar, who had argued the
appeals at the earlier hearing and who was engaged to argue the appeals was
unable to attend the Court 87 in the month of July, 1949, and requesting that
adjournment be granted to enable him to appear and argue the appeals.
This application was rejected by the
Registrar of the High Court on some technical ground precise nature whereof it
is not possible to ascertain from the record. Another application was submitted
on July 18, 1949, accompanied by a letter from Sir Alladi Krishnaswami Ayyar
stating that he was proceeding to Delhi to attend the meetings of the
Constituent Assembly (of which he was a member) and was on that account unable
to attend the hearing of the appeals in July 1949 : it was also stated in the
application that the plaintiffs "were engaging" Mr. Sarat Chandra
Bose-a member of the Calcutta Bar-to appear in the appeals, but he ",found
September convenient". This application was rejected as
"belated", and also because the parties had been litigating ever
since December 1942 and the objections of the executors Were "entitled to
consideration." On July 25, 1949, another application supported' by an
affidavit was filed for adjournment of the case and that an ad hoc Bench in
which the Chief Justice and Mr-. Justice Balakrishanaiya were not included be
constituted. It appears that at the hearing of this application there were
"angry scenes in Court between the Acting Chief Justice and L. S.
Raju". In this affidavit dated April 7, 1950, Vishwanath has stated in
paragraph 28, "...... the Officiating Chief Justice Mr. P. Medappa was
very wild with me and rude. He threatened me and said that I should disclosed
to him as to whom I consulted regarding this affidavit and if I did not do so,
I will be sent to fail. I was in a fix an in a state of terror and, when I said
that' among other counsels' I consulted Sri L. S. Raju also, Sri P. Medappa
turned round and said, "I am glad you mentioned it, I know what to do for
him." In paragraph 29 Vishawanath stated : "Later on, the same day he
asked Messrs. N. R. Raghavachariar and L. S. Raju 88 to disclose what
transpired between me and them in connection with the filing of the affidavit
and they declined to do so on the ground that. it would be breach of
professional Confidence." Then in paragraph 30, he stated.
"In disgust and as he had other business,
Mr. N. R. Raghavachariar left for Madras the same day filing a memo of
retirement. Sri L. S. Raju also filed a memo of retirement." The order
rejecting this application was pronounced in the afternoon of July 25, 1949,
but the hearing of the appeal was taken up in the afternoon of July 25, 1949.
In the affidavit dated April 11, 1950 filed in the Madras High Court by the
executors in reply to the affidavit dated April 7, 1920, there was no denial of
the allegations relating to what transpired in Court on July 25, 1949. The
evidence of Mr. Balakrishanaiya-though the replies given are somewhat
vague-gives some support to the.
story of what is described as "a stormy
session" on July 25, 1949. Mr. Balakrishanaiya was asked by the plaintiffs
whether he remembered that on the first day, i e., July 25, 1949, it was a
'very stormy .session". The answer given was that he did "not
understand". To the question whether "Medappa threatened the
respondent to tell him the name of the advocate who drafted the affidavit",
be answered "There was a question whether it was drafted by the party or
with the aid of Counsel". The witness was then asked a composite
question-,'Did Medappa threaten him to put him in Jail?.
The storm means the storm of the session-the
other colleagues were so distracted that they could not hear what was passing
between Medappa and others?" No reply to first part of the question was
apparently given. The answer recorded is, "So far we were concerned we
were never distracted." It is true that the witness denied that Mr.
Medappa had told the first plaintiff
Visbwanath that when it was disclosed that Raju had drafted the affidavit Mr.
Medappa stated he knew I 'what to do When 89
the Court insisted on hearing the appeal on July 25, 1949, it appears, that
Raju and N. R. Raghavachariar (who belonged to the Madras Bar) applied for
leave to withdraw. On that application an order refusing leave to. withdraw
was, it appears, immediately recorded. The order declaring permission to retire
from the case bears the date July 25, 1949, but for some reason not apparent
from the record, it was pronounced on July 27, 1949. Arguments were heard on
the 25th of July, 26th of July and 27th of July, 1919, and the Advocates of the
plaintiffs were in the singular position of not knowing whether they did or did
not continue to remain advocates for the plaintiffs. After the arguments of the
executors, an application to enable the plaintiffs to secure the presence of
Sir Alladi Krishnaswami Ayyar was made and was rejected, and "judgment was
reserved" without hearing any arguments on behalf of the plaintiffs.
Judgment of the Court which runs into thirty closely printed pages was
delivered on July 29, 1949, at 4 p.m.
From a resume of what transpired since Mr.
Medappa was appointed the Acting Chief Justice, it cannot be doubted that the
Judges of the Mysore High Court were not willing to consider any request of the
plaintiffs for formation of a Bench which did not include Mr. Medappa and Mr. Balakrishanaiya.
Nor did they Consider his applications for adjournment with sympathy. The
attitude may appear to be somewhat rigid, but that attitude by itself may not
justify an inference of bias.
The plaintiffs were since the appointment of
Mr. Medappa as Acting Chief Justice making application after application for
the constitution of a Bench in which Mr. Medappa and other Judges who bad been
at some time concerned with this case be excluded. 'But a litigant is not
entitled to choose' 90 the personnel of the Court to hear his case, nor can he
insist upon an adjournment of the case because the date fixed for hearing is
not convenient to his counsel Convenience of counsel must subserve the larger
interest of the administration of justice. It is true that where by a too
strict observance of legal forms injustice has been done, by an apparently
biassed tribunal, the decision may be declared 'coram non judice" whether
the decision is of the tribunal subordinate to the appellate jurisdiction of
the court or of a foreign tribunal. But only facts proved in this case in
support of the plea of bias are that Mr.
Medappa was a close friend of the executor
Syed Abdul Wajid, and Mr. Balakrishanaiya bad expressed his view on the merits
of the plaintiffs case. It would have been consistent with the dignity of the
Court if Mr. Medappa and Mr. Balakrishanaiya bad not sat in the Full Bench. But
it cannot be forgotten that unless the Government of Mysore agreed to
constitute an ad hoc Bench, there were no Judges in the Court who could form a
Full Bench to hear the appeals. Mr. Puttraj Urs bad recorded evidence in the
suits out of which the appeals arose: Mr. Malappa was also concerned with some
proceedings connected with the litigation and Mr. enkataramaiya the only
remaining Judge bad appeared as an Advocate for the plaintiffs. Mr. K.
Kandaswami Pillai bad retired. We may certainly not approve if we are called
upon to do so-of the incidents in Court at and before the hearing. But these
incidents may very well be the result of deliberate provocation given by the
plaintiffs and their lawyer Raju, who appears to have attempted frequently to
thwart the effective hearing of the appeals.
The High Court has carefully weighed the
circumstances and has held that from the various pieces of conduct attributed
to Mr. Medappa and Mr. Balakrishanaiya, an inference of bias may not 91 be
made. We are dealing with the judgment of a foreign tribunal: however much we
may regret the pronouncement of certain orders, especially orders declining to
grant a reasonable adjournment to enable the plaintiffs' counsel to appear and
argue the case, the constitution of the Bench and the manner in which the
appeals were heard, it is difficult for us to disagree with the High Court and
to attribute bias to the Judges, who constituted the Full Bench.
The plea of bias, of a foreign Court is
indeed difficult to make out. The court will always presume, in dealing with
the judgment of a foreign Court that the procedure followed by that Court was
fair and proper, that it was not biassed, that the Court consisted of Judges
who acted honestly, and however wrong the decision of the Court on facts or law
may appear to be, an inference of bias, dishonesty or unfairness will not
normally be made from the conclusion recorded by the Court on the merits. The
party setting up a case that the judgment of a foreign court is not conclusive,
because its proceeding was contrary to natural justice, must discharge this
burden by cogent evidence, and we do not think that in this case such evidence
has been led. The Judges had no pecuniary interest in the dispute. Bias in
favour of the executors is sought to be inferred from close friendship of the
Chief Justice with one of the defendants, and the expression of opinion by the
other Judge on the merits-such expression of opinion being consistent with the
practice prevailing in the Court-and refusal to grant facility to the
plaintiffs to secure the presence of their chosen counsel. These grounds either
individually or collectively do not justify us in inferring contrary to the
view of the High Court that the Judges had forfeited their independence and
impartiality and had acted not judicially but with bais.
92 The last question which falls to be
determined is whether the estate devised under 'the will dated September 10,
1942, was the joint family estate of Ramalingam and his sons. If the estate
belonged to the joint-family, the will was undoubtedly inoperative. Certain
facts which have a bearing on this question and which are mainly undisputed may
be set out. Vydialingam was an employee in the Mysore Subordinate Judicial
service and drew a monthly salary rising from Rs. 75/to Rs. 125/-. He worked
fir,.it as a translator in the Mysore Chief Court. In 1898 he was appointed
Sheristedar of the District Court at Shimoga and was later transferred to
Bangalore. One Loganathan Mudaliar, a building contractor carrying on business
at Kolar Gold Fields, was a close friend of Vydialingam. In 1896, Loganathan
fell ill and after his illness took a serious turn in, 1898, he was unable to
attend his business. Loganathan executed a will appointing Vydialingam and
others as guardians of his children and also executors under his will, and died
in 1900. Vydialingam was maintaining an account with the Cavalry Road Bank at
Kolar Gold Fields since 1891. By 1895 substantial amounts were credited in that
account of which the source could not be the meagre salary of Vydialingam.
In the years 1896 and 1897, diverse amounts
aggregating to the more than rupees one lakh were credited in that account.
In May 1898 Vydialingam borrowed on his
personal security from the Bank Rs. 2,000/and gave it to Shanmugam, his eldest
son. Shanmugam opened an account with the Cavalry Road Bank in October, 1899,
by borrowing Rs. 25/-, but the entries in this account are few and for very
small amounts.
From the account maintained by the Mining
Company it appears that the building construction work which was originally
done by Loganathan. was later done by Shanmugani and since 1901 large amounts
were paid to Shanmugam some of which were credited into the Cavalry Road Bank
93 account. Since July 1904, some books of account maintained in the name of
Shanmugam for business, household and, other expenses are available. About ;the
year 1904, Devraj, the second son of Vydieolingam, started attending to a
building contractor's business at Gadag. Ramalingam after ,.completing, his
training in the Victoria Jubilee Technical Institute at Bombay also took to
that business. Vydialingam died in May 1905. He was then possessed of two
houses which were orally directed by him to be given to Ramalingam. The three
brothers continued to live jointly even after the death of Vydialingam and the
household expenses were jointly incurred. In 1910 Ramalingam sold one of the
two houses and received Rs. 4,000/-. 'On March 30, 1912, a deed of release was
executed by Ramalingam and Devraj under which Devraj and Ramalingam each
.received Rs. 2,5001and the Kolar Gold Fields business was thereafter carried
on apparently as a partnership business between Shanmugam and Ramalingam.
Manavalem father-in-law of Devraj died in 1910, and Devra migrated to Madras
and settled down, in that tow to attend to the business of his father-in-law
Shortly after April 1912, Shanmugam proceeded ,to the United Kingdom.
There is no clear evidence 'Whether he took
part in; the business after he returned from his journey abroad. He continued
to make withdrawals from his account in the business By 1961, he had overdrawn
an amount exceeding Rs.
35,000/which was written off. Thereafter he
ceased to have any interest in the business Shanmugam died in 1924 and Devraj
died in 1936.
It is the plaintiffs' ease that, Vydialingam
was carrying on the business of a building contractor since about the year 1895
or 1896: into this business Shanmugam was first introduced and thereafter
Devraj and Ramalingam. After the death Vydialingam, according to the
plaintiffs, this business was carried on by the three brothers till the 94 year
1910 at different places. Devraj was attending to a Iran oh of the business at
Gadag: Ramalingam attended to the business at Kolar Gold Field,,; and also at
Gadag. The plaintiffs claim that the business which was carried on by
Ramalingam since the year 1916, was directly connected with the business which
was inherited from Vydialingam by his sons and being in his hands ancestral
business, the acquisitions. out of the same were impressed with the character
of joint-family property. They also claimed that Ramalingam disposed of two
ancestral houses which he received and used the sale proceeds in conducting,
his business and also Rs. 12,500/ received from the Administrator-General as
the Share, out of the estate of Loganathan, of his wife Gajambal who was the
daughter of Loganatban. With this fund Ramalingam carried on the business of a
building contractor in the conduct of which he was assisted by his sons and he
acquired the estate in dispute. The case of the plaintiffs therefore was that
Vydialingam was carrying on the business, of a building contractor, that his
sons assisted him in carrying on the business, that after his death the
business which devolved upon his sons was carried on by them till 1910 when
Devraj, the second son ceased to be. interested therein. Then Shanmugam, the
oldest, son severed his connection in 1916 leaving Ramalingam to conduct the
ancestral business alone.
The executors contended that Vydialingam did
not carry on business of a building contractor, that Shanmugam started his own
business as a building contractor sometime in 1898 and neither his father nor
his brothers had any. interest therein, and that for the first time, in 1912,
in view of his impending departure for the United Kingdom, Shanmugam admitted
Ramalingam into his business as a partner and ultimately in 1916, Ramalingam became
the sole owner of the business, because 95 Shanmugam severed his interest
therein. The case of the executors, therefore was that the business in the
hands of Ramalingam had no conviction with any ancestral business or estate
received by Ramalingam from his father.
The trial Judge dealt with the question under
five heads:-Firstly, that Vydialingam carried on the business of a building
contractor. He had left. two houses which were unencumbered, and the
contractor's business: these became jointfamily estate in the hands of his son,
and out of this estate Ramalingam's fortune was built:
Secondly, that after the death of
Rawalingain, his three sons carried on a joint family business. This
joint-family business was attended to by the three brothers at different places
and that the joint acquisitions were divided sometime in the year 1910 and each
brother received a share of Rs. 34,000/odd, and out of the share received by
Ramalingam, estate devised by the will was acquired Thirdly, that Ramalingam
received a share of the ancestral estate of the value of Rs. 40,000/and also
Rs. 12,500 as share of his wife out of the estate of Loganathan and the entire
amount was invested in his business as a building contractor and out of this
the estate in dispute was acquired :
Fourthly, that Ramalingam and his eldest son
Vishwanath were actively associated in carrying on the building contractor's
business and the acquisitions out of 96 the business were joint-family estate:
and Fifthly, that Ramalingam had by his declarations impressed his acquisitions
with the character of joint-family property and therefore the property was
jointfamily property.
He held on all the five heads that the
property devised under the will of Ramalingam was jointfamily property. in appeal,
the High Court held that the case of the plaintiffs under the 4th and the 5th
heads was not established. About the 3rd head the High Court held that there
was no clear evidence that Ramalingam had received an ancestral fortune of Rs.
40,000/or Rs. 12,500/on behalf of his wife Gajambal from the estate of
Loganathan. But the High Court held that Vydialingam was carrying on the
business of a building contractor since the year 1896 and that in this business
were associated his sons as they grew up; that the business was carried on in
the name of Shaumugam because Vydialingam being a public servant could not
carry it on in his own name; that after the death of Vydialingam this business
was conducted as a joint-family business; that in the year 1910, Devraj who was
attending to the Gadag Branch of the business left the family and commenced
attending at Madras to the business of his father in-law who died about that
time; and that Shanmugam ceased to have any connection with the. business in
1916. The High Court summarised the conclusion as follows:-"The business
which Ramalingam subsequently extended was a business which-descended to him
from his father, his two brothers having successively left it. It is probable
though is, not clearly proved-that Ramalingam put the money which is obtained
by sale 97 of the house in Bangalore into business. He also put in the money he
was paid under the release deed of 1912. Into the nominal partnership which he
entered into with Shanmugam, he brought in as his capital a sum of Rs.
5,000/representing a fragment of the old business. No less important, he also
brought in the goodwill of the old business.
At no time before the final few months
preceding his death, when he had quarrelled with the members of his family, did
Ramalingam, notwithstanding the claims he made in his will, and other
documents, seek to exclude the members of family. He made no effort to keep
distinct what were acquired with the aid of indubitably joint-family nucleus
from what it might have been possible to contend were the result of his own
unassisted exertions. Taking all the circumstances into account, we are of the
opinion that the learned trial Judge was right in concluding that the
properties which Ramalingam left behind must be treated as jointfamily
properties." To establish their case the plaintiffs relied upon the
evidence of five witnesses-Kuppuswamy Mudaliar, Sitharain Naidu, Varadaraja
Mudaliar, Venugopala Mudaliar and Dharmalingam, some of whom had been examined
before the Court of the District Judge, Bangalore. By their evidence it was
sought to prove that Vydialingarn did carry on in and before 1898 business as a
building contractor at Kolar Gold Fields and that this business had on his
death descended, to his sons. The plaintiffs also relied upon extracts from the
accounts of Ramalingam and Shanmugam with the Cavalry Road Bank at Nandidurg,
and the extracts from the accounts of the Nandidurg_ Mining Company recording
payments made from time to time to Shanmugam some of which were credited in the
account of Vydialingam 98 with the Cavalry Road Bank. Reliance was also placed
upon the entries in the books of account maintained in the name of Shanmugam
from the year 1904 showing receipts from Davraj at Gadag and amounts debited as
sent to Devraj at Gadag, collection of rent from the houses credited in that
account, expenses debited for purposes connected with building construction'
items showing that Devraj or Vydialingam had participated in those transactions
and other entries of house-hold expenses showing that the account maintained in
the name of Shanmugam was in truth the account of the jointfamily. 'rho
plaintiffs also relied upon certain letters written by Ramalingam and Devraj
which from their terms evidenced their case' that they were not acting merely
as agents of Shanmugam but as owners of the business. Reliance was also placed
upon the testimony of one Masilamay Pillai, an Advocate (who later acted as a
Judge of the Madras High Court), that in the arrangements made a few months before
March 30, 1912, it was agreed that the goodwill of the Kolar Gold Fields
business was allotted to Ramalingam. The learned trial Judge accepted the
evidence of all the witness whose testimony was relied upon by the plaintiffs
and held that the extracts Vydialingam's account established that he was
carrying on business as a building contractor, and the books of account
maintained in the name of Shanmugam were family accounts.
In appeal, the High Court relied upon the
evidence of only two of the five witnesses who deposed that Vydialingam was
working as a building contractor. In the view of the High Court the evidence of
Varadaraja Mudaliar and Sitharam Naidu but not of other witnesses was reliable.
Witness Sitharam Naidu deposed that he was working as a building contractor
since the year 1898 at 99 Kolar Gold Fields, that he had taken up a
",tenement in the compound of Loganatha Mudaliar" and that he knew
that Vydialingam was looking after the contract work of Loganath, that
Vydialingam was assisted by his three sons, that Shamingam was doing business
of a building contractor and was also helping his father Vydialingam. The
witness was described by the High Court as a respectable person "'not
readily corruptible" and who "had no ascertainable motive for giving
false evidence". Varadaraja Mudaliar deposed that he used to see
Vydialinga Mudaliar when he (the witness) went to Oorgaum in 1898 to see his
father-in-law who was a Mistry in the Oorgaum mines working under Loganath
Mudaliar, that his father-in-law at first worked under Loganath and later under
Vydialingam. The evidence of this witness was also accepted by High Court. The
evidence of these two witnesses establishes that Vydialingam Mudaliar was
conducting the business of a building contractor. There is also evidence that
since the year 1898 Loganath was too ill to attended to his business and that
he died in 1900.
The testimony of the two witnesses Sitharam
and Varadaraj is supported by entries in the account of Vydialing ,am with the
Cavalry Road Bank. The account of Vydialingam with the Cavalry Road Bank was
opened in 1891. Vydialingam was an Employee of the State of Mysore and the
maximum salary that he ever drew was Rs. 125/p.m. Between the years 1891 and
1894 the entries in the bank account were for small amounts, the largest being
Rs. 478/4/-. In the year 1895, there were two items each exceeding Rs. 1,000/credited
in that account, but in 1896, the items of credit and disbursement were very
large : it appears from the entries in that account that in the years
1896-1897, amounts aggregating to Rs. One lakh and more were credited in the
account of Vydialingam and large disbursements were also made from that
account. The High Court observed, and in our judgment the 100 High Court was
right in its view that the transactions in the books were "to large to be
referred to the emoluments of Vydialingam as Sheristedar. It is legitimate
inference that he has been engaged in other business. The executors did not,
deny that an inference that Vydialingam was carrying on some business clearly
arose from the entries in the books of account. But it was suggested that
Vydialingam may have carried on the business of a money-lender and for that
purpose he may have withdrawn funds from the Cavalry Road Bank and utilized
them as his circulating capital for his money-lending transactions. It was
asserted that Vydialingam was a Director of the Cavalry Road Bank and was on
the account able to help himself to the funds of the Bank for his private
business. But our attention has not been invited to any evidence on the record
that Vydialingam was a director of the Cavalry Road Bank. The entries are of
such large amounts and the credit and debit entries are so frequent that the
inference that were made in the course of a money-lending business would be
difficult to make. It also appears that Vydialingam had mortgaged his house in
1892 for Rs. 25,000/in favour of Thirunaglingam Pillai and he discharged this
mortgage by borrowing a loan of Rs.
3,000/on the security of the house from
Loganathan on August 31, 1892. The amount was repayable in monthly instalments
of Rs. 50/-. Another deed encumbering his house was executed by Vydialingam in
1894 for repayment of Rs. 2,000/These two mortgages remained outstanding till
1903.
We are unable to accept the theory that
Vydia. lingam carried on money-lending business when his own house was
mortgaged, and he had agreed to pay the dues by instalments.
The Cavalry Road Bank account also shows
entries for amounts brought from the Madras Bank. These show that Vydialingam
had received cheques which were encashed with the Madras Bank and the amounts
were received by him. These entries render the theor of a money-lendin business
improbable.
101 The entries in the bank account of
Vydialingam support the case that he was carrying on a business, and the
testimony of two witnesses Sitbaram Naidu and Varadaraja Mudaliar clearly shows
that this business was of a building contractor.
Before 1898, even according to the case of
the executors, Shanmugam was not employing himself as a building contractor.
The entries in his account with the Cavalry Road Bank are for very small
amounts till April 1901, when, for the first time, Shanmugam borrowed Rs. 800/on
the security of jewels. In the account of the Mining Company also, there are no
entries for any payments made to Shanmugam till 1901 for work done by him. The
entries in the Cavalry Road Bank account therefore support the inference that
Vydialingam was carrying on business and Shanmugam had no business of his own
atleast till 1900.
The entries in the Cavalry Road Bank account
for the period subsequent to 1900 also suggest that Vydialingam operated the
account of Shanmugam. Part of the amounts received from the Mining Company
account by Shanmugam for the work done was applied for satisfying loans
borrowed by Vydialingam.
It has also to be noted that in Shanmugam's
account till 1901 no large amounts were credited. It appears from the account
of the Mining Company that on January 18, 1901, he received Rs. 5,000/by cheque
and other large amounts within the next three months aggregating to nearly Rs.
7,500/in cash and cheques. But the account of Shanmugam with the Cavalry Road
Bank shows only a total credit of Rs. 780/between October 1899 and April 1901
in the suspense account.
No books of account about the construction
work done in the name of Shanmugam are available for the period.
There are certain entries in the accounts of
Vydialingam and Shanmugam which show interrelation between the two accounts.
For instance, 102 on January 9,
1904,.according to the Mining Company's account Shanmugam was paid three
amounts Rs. 36/-, Rs, 362/14/1 and Rs. 12,243/5/-. About this time Shanmugam
was indebted to the Cavalry Road Bank in the sum of Rs. 3,400/on promissory
notes. On January 19, 1904, he paid Rs.
3,100/into the Bank and partially satisfied
this liability.
Rs. 12,120/6/9 are found credited in the
account of Vydialingam on January 23, 1904 and Rs. 12,000/are withdrawn on
January 29. There is no direct evidence to connect the payments made in the
accounts of Shanmugam and Vydialingam with the amounts received by Shanmugam,
but it would be a reasonable inference, having regard to the proximity of time,
that it was out of the Amount of Rs. 15,900/received by Shanmugam on January
19, 1904, that his liability for Rs. 3,100/to the Cavalry Road Bank was
discharged and an amount of Rs. 12,120/ 619 was paid into the Cavalry Road Bank
and an amount of Rs. 305/was utilized for satisfying the debts of Vydialingam
in his personal account. There are also other entries disclosing interrelation
between the accounts. Vydialingam borrowed Rs. 140/on February 1.8, 1904, under
promissory note dated February 18, 1904, and the identical amount is credited
in the account of Shanmugam under the entry "Receipt from V. S. Vydialinga
Mudaliar." The Chitta number under which amounts are credited and debited
are identical. On December 1, 1904, Shanmugam received a cheque for Rs. 10,000/from
the Mining Company.
The cheque was credited in the Cavalry Road
Bank on 10-121904. On that day Shanmugam was indebted in the sum of Rs. 2 625/in
the promissory note account. On December 19, he withdrew a total amount of Rs.
8,733/2/0. The Chitta entry in that behalf is No. 113. On that very day there
are two entries under Chitta No. 113 for payment of Rs. 1,050/in Vydialingam's
account. There are entries in Shanmugam's account with the Bank 103 showing
debts made pursuant to directions' given by Vydialingam. For instance, on March
25, 1903, Rs. 500/are debited pursuant to directions given by Vydialingam.
There are two similar debit entries pursuant to directions given by Vydialingam
on April 4, 1903, and April 10, 1903, for Rs. 500/each.
In Vydialingam's account on July 13, 1903
there is an entry of Rs. 280/paid for cart hire. That is also indicative of the
fact that he was carrying on the business of a building contractor, otherwise
this entry is not capable of explanation. There are also entries in the account
maintained in the name of Shanmugam showing expenses incurred by Vydialingam
and Devraj for travelling in connection with the building of the English
Church". On August 7, 1904, Rs. 20/were debited as spent by Vydialingam
for going to Madras. There is also a debit entry of Rs. 3/dated July 26, 1904,
for travelling expenses of Devrai and Shanmugam. The account maintained in the
name of Shanmugam for the period prior to July, 1901, is not produced. The
account is available till 1907 and then there is a break. There is an account
book for 1910-1 1, but not for the period immediately before April 1, 1912,
when a partnership was started between Ramalingam and Shanmugam. There are
numerous entries in this account showing that large amounts were received from
Gadag from Devraj and, also for amounts sent to him. On May 5, 1905, an amount
of Rs. 1,000/was raised on a promissory note and sent to Devraj. On July 19,
1905, there was a remittance to Devraj by Shaamugam of Rs. 1,00 1/ 8/2. There
is a similar remittance on September 17, 1905. On September 26, 1905, Rs. 100/had
been paid through Ramalingam. There are credit entries for large amounts
received from Devraj. On May 27, 1907, Devraj remitted Rs. 7,000/104 from Gadag
to Kolar Gold Fields. It is unnecessary to examine all these entries. Also in
the account in the name of Shanmugam there are several credit entries for house
rent collected from tenants of the two houses which Vydialingam died possessed
of, and debit entries for payment of municipal taxes. There are also in that
account numerous entries for amounts collected by Ramalingam and paid into the
account.
There are also four letters which throw some
light on the connection of the three brothers with the Kolar Gold Fields
business. On October 5, 1909, Devraj addressed a letter to Ramalingam enquiring
whether the letter did go to Gadag and gave several directions with regard to
business matters.
There is another letter dated October 6,
1909, also written by Devraj to Ramalingam which states "Pariapa"
(Shanmugam) has come from Bangalore and he expects you here as soon as you
finish your work there." This letter also gives directions for procuring
certain articles. There is a letter dated January 18, 1911, addressed by
Ramalingam to Shanmugam. By the letter Ramalingam informs Shanmugam that the
question of (departmental employment in the Nandidurg Mining Company was
discussed and that it ,,was finally decided not to do so" and to have the
sundry works carried on as usual. He then proceeds to state that the Oorgaum Gold
Mining Company had temporarily stopped all operations for "some unknown
reasons". then there is a reference to the Electricity Department of
putting in and concrete in "N's Bungalow". There is also reference to
"drudging on with the drains and the compressor work we have been
having." Regarding the Oorgaum Gold Mines, he says that all the
"works on hand" in the mines had been completed and the prospects for
new work were gloomy. There is also a reference 105 to the timber department.
In the next letter dated February 11, 1911, addressed to Shanmugam, Ramalingam
states that Mr. Bullen had sent for him and had enquired of him whether he
would undertake some small building contract at Manigatha where they were
prospecting for gold and further that he (Ramalingam) had agreed "to do
the work and promised to be there to receive instructions." He also stated
that he would return by the week-end after the arrangements were made and he
would take leave of Messrs. Moky &Cooke and tell them that Mr. Ramaiah will
lookafter the business (during his absence). The letters do suggest that
Ramalingam and Devraj were interested as owners in the business about which
information was given to Shanmugam and they were not merely acting as his
agents.
There are numerous entries in the General
Account also indicting that these accounts are not in respect of the personal
transactions of Shanmugam but they are the accounts of the family. Expenses of
various members are debited in that account. They are found side by side with
business expenses. The High Court was, in our judgment, right in holding that
these were not the accounts of Shanmugam personally but were of the joint
family.
The Attorney-General, however, says that
certain circumstances relied upon by 'him conclusively establish that the
business done by Shanmugam was his separate business. He points out that
Vydialingam was a public servant and his service record showed that he was on
leave only for short periods in the year 1898 and when he was posted at a
considerable distance from Kolar Gold Fields, it would be impossible for him to
attend at the latter place to any business requiring his continued attendance.
But only a few extracts from the service record of Vydialingam have been 106
printed in the record. Ext. 368 shows that Vydialingam drew a salary of Rs.
125/for 20 days for Working no Nazir and Sheriatedar, and that he was
transferred to the District Court of Shimoga in September, 1901. There is also
an entry that Vydialingam was appointed Munsif for 12 days in June, 1900. Ext.
370 shows the amount of salary that Vydialingam drew from time to time. These
documents do not show that it was impossible for Vydialingam to attend to the
business.
It is true that in the Mining Company's
account payments made for construction work are debited till 1900 to
Loganathan` and after Loganathan's death to Shanmugam, but, evidently,
Vydialingam being a public servant could not publicly appear as carrying on a
building contractor's business and receive paymenta forthe work done by him in
his own name. The debit entries in the name of Shanmugam in the Mining
Company's account are therefore not decisive, nor would they be sufficient to
destroy the direct evidence of the two witnesses Sitharam Naidu and Varadaraja
Mudaliar.
It was then urged that Cavalry Road Bank
Account showed a payment of Rs. 2,000/in May, 1898, to Shanmugam and that this
account was' returned to Vydialingam %by Shanmugam in December 1902. From this
it is urged that Shanmugam started business as a building contractor with the
amount borrowed from his father Vydialingam and ultimately he repaid it after
four years and seven months. But the evidence of the two witnesses Sitharam
Naidu and Varadaraja Mudaliar does establish that the business of building
contractor was conducted by Vydialingam and that is amply corroborated by the
entries in the Cavalry Road Bank account. The debit entry relating to payment
of Rs. 2,000/to Shanmugam from Vydialingam's account, and the credit entry for
repayment by Shanmugam will not, in our 107 judgment, necessarily lead to the
inference that this amount was borrowed by Shanmugam for starting his business
as a building contractor. It was also urged that the account started in July
1901 and continued till the year 1912 was the private account of Shanmugam. We
have already dealt with this question in dealing with the evidence of the
plaintiffs and we are unable to hold, having regard to the numerous entries
posted therein that the account was the personal account of Shanmugam.
It is also true that Vydialingam was indebted
to Loganathan for amounts borrowed by him on the security of his two houses and
that the debts were paid off in the year 1903.
Bat having regard especially to the direct
evidence supported by contemporaneous entries in the account books, an
inference that Vydialingam did not carry on any business will not be justified.
Strong reliance was placed on certain
recitals in two documents a sale deed executed by Ramalingam for sale of the
house inherited by him from Vdialingam by deed dated July 27, 1910, and a deed
of release executed on March 30, 1912, by the three brothers. It is urged that
the recitals in these two documents completely destory the case that after the
death of Vydialingam there was a subsisting joint family or that Ramalingam and
Davraj had interest in the business carried on by Shaumugam. In the sale deed
dated July 2O, 1910, executed by Ramalingam in favour of Mandi Mohammad Hussain
Saheb it was recitedthat Shanmugam and Devraj had acquired properties out of
their own earnings and were in enjoyment thereof, but he (Ramalinga) had no
property of his own earning and therefore Vydialingam had given oral directions
that the immovable property belonging to Vydialingam should be in the
possession or enjoyment of Ramalingam alone and that 108 Shanmugam and Devraj
should have no right therein and that in accordance with the directions and
with the permission of his two brothers. Ramalingam was in possession and
enjoyment thereof and that he conveyed one of the houses for Rs. 4000/to the
vendee and in order to prove that his aforesaid brothers had no right in the
property, he had got them to attest the documents. The sale deed bears the
attestations of Shanmugam and Devraj. There is another document dated March 30,
1912, which is calleda "Release Deed", between Shanmugam on the one
hand and Devraj and Ramalingam Mudaliar on the other, The three brothers are
described as doing business as building contractors. It is recited in that deed
that in 1898 Shanmugam started life as a building contractor and merchant by
his own exertions and without the use or aid of funds of the joint family to
which he belonged and found his own 'means of living" on the Kolar Gold
Fields and elsewhere and by his own exertions he had made acquisitions
described in the schedule annexed to the deed and that the same were his
separate property. The deed also recited that before his death on May 3, 1905,
Vydialingam had given directions for the disposal of the immovable and movable
properties in favour of Ramalingam and accordingly the said properties had been
appropriated first towards the discharge of his. debts and thereafter the
immovable properties had been taken over by Ramalingam and that "nothing
in the nature of an undivided Hindu jointfamily remained". The document
then proceeded to recite that in consideration of a sum of Rs.2,500/paid by
Shanmugam to Devraj and another sum of Rs. 2,500/paid to Ramalingam and his
minor son Vishwanath, Devaraj and Ramalingam declared that they will not claim
any "manner of right or title or interest in the property of
Shanmugam" described in the schedule attached to the deed and agreed that
they or any of them had never any 109 right, title or interest in the property
and that if there was any such right it "shall be deemed to have been
released, relinquished and quit claimed so that Shanmugam Mudaliar remain the
sole and absolute owner thereof." In the schedule to the deed was
described a bungalow at Robertsonpet and movables and outstanding of the value
of Rs. 1,79,000/-. At the foot of the document were endorsed a receipt for Rs.
2,500/by Devraj and another receipt for Rs. 2,500/by Ramalingam. The
Attorney-General contented that the admissions in these documents .were
unequivocal and destroyed the case of the plaintiffs, that there was any
subsisting jointfamily after the death of Vydialingam or that the business
carried on by Shanmugam was joint-family business. Counsel submitted that the
trial Judge had evolved a theory which was not supported by any pleading or
evidence that the sale deed and the release deed were parts of a scheme of
division of the property of the joint family of the three brothers.
It is true that the recitals in the sale deed
show that the house sold by Ramalingam was given by Vydialingam to him under an
oral direction and he dealt with that house on that footing. It is also true
that in the ,Release Deed" it has been recited that Shanmugam was carrying
on business as a contractor since the year 1898 without the aid of any jointfamily
funds and that the acquisitions made by him were his self-acquired properties.
The deed also recites that there was no joint-family property which remained to
be divided.
But these two documents cannot be regarded as
decisive of the question whether Vydialingam was carrying on the business of a
building contractor and whether that business devolved on his three sons. The
three brothers during the life time of Vydialingam were living jointly and the
building contractor's business was being conducted during the life time of
Vydialinga. We have already pointed out that 110 the evidence shows that even
before 1898 Vydialingam was carrying on a contractor's business. Both during
the lifetime of Vydialingam and thereafter till 1910 the three brothers lived
together and the entries in the General accounts maintained in the name of
Shanmugam indicate that their expenses were jointly met. It also appears that
the rent received from the houses which Ramalingam ultimately disposed of were
taken into account and amalgamated with the family account. Large amounts were
sent to Devraj and were also received from him. Ramalingam is also shown to
have participated in the business of Shanmugam. It is true that the trial Judge
made out a case of a partition of the jointfamily estate in the year 1910 which
after Devraj migrated to Madras, was given effect to in the deed of release
dated March 30, 1912. This case does not find place in any pleading and is not
supported by direct evidence. But the approach of the High Court to the
evidence was different.
In the view of the High Court the evidence
indicated that the three brothers continued to carry on business as members of
a Hindu jointfamily which had devolved upon them from their father Vydialingam
that the business was extended to different places such as Gadag, Calicut and
others, that Shanmugam was after the death of Vydialingam also carrying on an
independent business at Kalai in partnership with one Balakrishna and that the
deed of release was in respect of the property which was claimed by Sbanmugam
as his separate property and not in respect of the jointfamily property.
Evidently, the recitals in the release deed
were made for maintaining a record that Devraj and Ramalinga had no interest in
the property of Shanmugam. Admissibility of evidence. to contradict the recital
that there was in fact no property of the joint-family is not precluded by s.
92 of the Indian Evidence Act, as the dispute in this suit does not arise
between the parties to the documents but between persons who 111 claimed under
Ramalingam the executant of the document.
The evidence of Masilamany Pillai who was
examined on behalf of the plaintiffs in the District Court at Bangalore is in
this context of some importance. The witness deposed that in 1.912 he was
consulted in connection with settlement of certain matters between Shaumugam
Mudaliar and his two brothers, that he had discussions with shanmugam and his
lawyers regarding matters relating to the properties of the family and also in
respect of the business in Kolar Gold Fields and that he had given advice after
ascertaining from the three brothers several matters in respect of which a
settlement had to be effected. He then stated that he had suggested that the
release deed might be obtained from Devraj and Ramalingam releasing and
relinquishing the claims if any they might have in respect of any property
which were claimed by Shanmugam as his self acquisitions, but he had himself
not drawn up the deed nor had seen it at any time.
The witness then made a statement that at the
interview it "was understood that good-, will of the Kolar Gold Fields
contract business was to be given to Ramalingam Mudaliar." On this part of
his evidence there was no cross-examination.
This evidence is important in two respects
(i) that the release deed was to be drawn up in respect of properties which
were claimed by Shanmugam to be his self acquisitions, and (ii) that it was
understood that the goodwill of Kolar Gold Fields business was to be of
Ramalingam. If the Kolar Gold Fields business was the exclusive business of
Shanmugam, which he had started, it is difficult to appreciate why the goodwill
of that business should be given to Ramalingam when for a comparatively small
amounts Ramalingam and Devraj were relinquishing all their interest which they
may possibly have in that business, and in the earnings made by 112 Shanmugam
out of that business. The trial Court as well as the High Court have accepted
this evidence.
The accounts of the family maintained in the
name of Shanmugam immediately prior to April, 1912, have not been produced by
the executors. It is true that it is their case that they did not find these
account books when they took over the estate of Bamalingam, whereas the
plaintiffs assert that the account-books were withheld by the executors
because, if produced, they would have destroyed the defence raised by the
executors. The High Court, on the evidence, was unable to raise any definite
inference in regard to this matter. Admittedly, the executors had taken
possession of the property of Ramalingam immediately after his death and it is
somewhat surprising that no inventory of the property of books of account or
documents of Ramalingamif any, prepared at the time when the execute totook
possession of property should have beenproduced. The executors are men of
considerable experience of business affairs and Wajid the principal executor
was an officer holding a high office in public administration. They would
certainly have realised the necessity of making an inventory of the documents
and the property which they took in their custody If the books of account
immediately prior to Ist of April, 1912, bad not come in their possession, the
executors would have forthwith produced the inventory made by them at the time
of taking over possession of the estate.
Even if we draw no adverse inference against
the executors because they failed to produce the books of accounts immediately
prior to April 1, 1912, there are other circumstances which support the inference
raised by the High Court. The release deed does not take into account the
business at 113 Gadag which was conducted by Devraj and in which Ramalingam
assisted. As we have already pointed out for carrying on this business large
amounts were sent from the family account. There is evidence that there were
assets in that business. In the General Account there are certain entries in
the accounts of Devraj which cannot be easily appreciated. After the entry
dated 5th March, 191 1, crediting Rs. 280/-, there are some debit entries under
the date 31st March, 1911, the following four of which are for amounts of Rs.
1,000/and more :Debit given by V. V. S. Mudaliar in connection with cheque
.........Rs. 1,0000-0 Debit S. R. B. cheque oneRs. 15,000-0-0 Debit Electricity
cheque one Rs. 1,619-15-8 Debit Nandidurgam cheque Rs. 9,322-12-6 Under the
same date there are ten entries, of which the following four are for Rs. 2,000/
and more :Credit V. V. S. Moodr. given previously .... Rs. 12,142-5-7 Credit ....
Rs. 2,000-0-0 Credit ..... Rs. 10,000-0-0 Credit ..... Rs. 10,000-0-0 As a
result of these entriesRs. 28,085-11-6 stood debited and Rs.25,689-11-4 stood
credited in the account of Devraj. Counsel for the executors has not attempted
to explain these entries. The trial Court thought that the credit entries
represented payments made by Ramalingam to Devraj. There is no evidence in
support of this view. The learned Judge appears to have thought that because
114 the good will was agreed to be given to Ramalingam-that is how he read the
evidence of Masilamany Pillai-Ramalingam became the owner of all its assets,
and the account was since the date of the agreement in reality an account of
Ramalingam. There is no warrant for this view. But the entries do show that
large amounts were credited in the name of Devraj and debited, at the end of
the year. If these entries were in respect of the Gadag business, the inference
that the deed of release was only in respect of the separate estate of
Shanmugan may receive some support.
The conduct of Shanmugam subsequent to March
30, 1912, has also some bearing on this question. Shortly after the execution
of the Release deed Shanmugam left for the United Kingdom and it is stated that
he returned to India after more than a year.' It does not appear that
thereafter he took any interest in the Kolar Gold Fields business but he
continued to make large withdrawals. In the books of account of the partnership
between Shanmugam and Ramalingam an amount exceeding Rs. 34,000/is initially
credited to Shanmugam and Rs. 7,500/. to Ramalingam. But what the shares of the
two partners in the business were is nowhere indicated. There is no deed of
partnership, nor is any balance sheet drawn. There is no evidence of division
of profits of the business.' By 1916, Shanmugam had not only withdrawn the
amount initially credited to him but he had withdrawn an additional amount of
Rs. 35,538/12/-. He thereafter ceased to have any interest in the Kolar Gold
Fields business and the amount overdrawn was written off debiting it to
"premium account." This conduct may indicate that after March 30,
1912, Shanmugam had no interest in the business even though the books of
account showed that it was a partnership business. Even if it be hold that
Shanmugam 115 was a partner in the business from April 1, 1910, to May 1, 1916,
the inference is inevitable that the building contractors business carried on
by Ramalingam thereafter was directly related the business inherited from
Vydialingam.
The circumstance that Shanmugam ceased to
have any interest in the business, after overdrawing Re. 35,000/-odd, also
corroborates the testimoney of Masilamany Pillai that goodwill of the business
was given exclusively to Ramalingam. From this evidence it is clear that Shanmugam
was unwilling to continue the joint family business at Kolar Gold Fields and
that he desired to secure an assurance from his brothers that they had no
interest in his separate business at Kalai and acquisitions thereof and for
that purpose, the "Release deed" was obtained from them.
The High Court held that the amount of Rs.
4,000/received by Ramalingam by sale of the house and the amount of Rs. 2,500/received
from Shanmugam were put in the business by Ramalingam. Wajid deposed that the
consideration received by sale of the house was given by Ramalingam to C.
Savade & Co., and to his sister. In our view the High Court 'Was right in
holding that the testimony of Wajid who has deposed that he was present at the
time when Rs. 500/were 'given by Ramalingam to his sister is not reliable,
Wajid was a stranger to the family and there was no reason why Ramalingam
should if the story be true keep Wajid present at the time of handing an amount
of Rs, 500/to his needy sister. The story of Wajid that Ramalingam was carrying
on business of a building contractor in the name of Rambal and Co., and that in
that business he suffered loss is not supported by any independent evidence and
does not carry conviction.
Having regard to all these circumstances we
do not think that the recitals in the sale deed and 116 the deeds of release
are by themselves sufficient to justify this Court in refusing to accept the
finding of fact recorded by the High Court on appreciation of evidence.
The High Court has held that the business
which Ramalingam carried on since April 1, 1912, apparently in partnership with
Shanmugam till 1916, and thereafter exclusively was directly connected with the
business which devolved upon the three sons Vydialingam when he died in 1.905.
Prima,-facie the findings recorded by the High Court are findings of fact, and
this Court normally does not enter upon a reappraisal of the evidence, but we
have entered upon a review of the evidence on which they were founded, because
the High Court of Mysore had on the identical issue about the character of the
property devised under the will of Ramalingam arrived at a different
conclusion.
A dispute with regard to the nature of the
property called "Palm Grove" for the purpose of considering whether
the judgment of the Mysore High Court is conclusive qua that property remains
to be mentioned. It appears that at some time about which there is no clear
evidence-"Palm Grove" was agreed to be sold in plots by Ramalingam.
In the suit, as originally filed in the Bangalore District Court "Palm
Grove" was one of the properties in respect of which the plaintiffs made a
claim. But that claim was withdrawn when the, Madras properties were excluded,
and no decision was therefore given by the District Judge in respect of the
"Palm Grove" property. Before us' no argument was advanced to show
that during the lifetime of Ramalingam this property had acquired the character
of movable propertyso that the decision of the Bangalore Court would operate as
conclusive in the Madras suit. The High Court of Madras rejected the contention
of 117 the executors that it must be deemed to have acquired the character of
movable property. Our attention is not invited to any material in support of
the contention that it had acquired such a character.
Certain directions were, however, given by
the learned trial Judge observing that ,the proceeds realised from ",Palm
Grove' constitute the assets of Ramalingam subject to certain equities that may
arise in favour of Narayanaswamy Mudaliar..................... on the foot of
the doctrine of quantum meruit to be determined in the final decree or in the
execution proceedings." We need express no opinion as to the true import
of this direction, for Narayanaswamy Mudaliar who was primarily concerned with
the direction, did not prefer an appeal against that part of the decree, and
counsel have not asked us to interpret that part of the decree. The High Court
observed that in so far as the executors were concerned, all they can in reason
ask is that such disbursements as being bona fide Made should be regarded as
properly debatable against the estate and that they should not be surcharged in
respect of such payments, and accordingly they added a qualification that the
executors need not pay such sums as they had bona fide made to Narayanaswami
Mudaliar in respect of that transaction either on the basis of quantum meruit
or as a partner of the business.
In that view of the case the decree passed by
the High Court on the footing that the plaintiffs are entitled to the immovable
properties in Madras and not the movables must be confimed.
The appeals therefore fail and are dismissed.
The High Court at Madras has held on the
evidence, that the properties which were disposed of by Ramalingam by his will
were not his separate 118 estate but were joint family properties, whereas the
Mysore High Court has taken a contrary view. We have on a review of the
evidence agreed with the view taken by the Madras High Court. Evidently, as a
result of the judgment of the Mysore High Court the heirs of Ramalingam have
lost property of substantial value. We think that in the special circumstances
of this case the plaintiffs should not be out of pocket in respect of the costs
of this litigation. We therefore direct that all costs of the plaintiffs
between advocate and client, in the suit, the appeals in the High Court and in
this Court should come out of the estate in the hands of the executors.
The remaining appeals may now be dealt with
briefly.
C. A. Nos. and 279, 280 of 1958 Appeals Nos.
279 and 280 of 1958 arise out of proceedings for revocation of probate granted
by the Madras High Court.
In T. S. 0. No. 52 of 1944, Mr. Justice
Chandrasekhara Aiyyar of the Madras High Court, by order dated July 17, 1944,
granted probate to the executors under the will of .Ramalingam dated September
10, 1943. The learned Judge expressly stated in the order that the probate
granted by him was subject to the result of the appeal filed to His
Majesty-in-Council against the order of the Resident's Court at Mysore. After
the appeal to the Privy Council was disposed of for reasons set out in the
principal judgment, by Petition No. 469 of 1953, the plaintiffs and Gajambal,
widow of Ramalingam applied for revocation of the probate granted by the Madras
High Court. This petition was heard together with Suit No. 214 of 1944. The
learned trial Judge ' ordered that the probate granted on July 17, 1944, be
revoked. Against that order an appeal was preferred by two of the executors to
the High Court of Madras. In appeal, the High Court restricted the operation of
the revocation in so far 110 as it' affected the immovable properties in Madras
and vacated the order in relation to the movables. Against the order passed by
the High Court, two Appeals-Nos. 279 and 290 of 1958 have been filed. C. A. No.
279 of 1958 is filed by the sons and widow of Ramalingam, and they have claimed
that the order of revocation made by' Mr. Justice Ramaswami be confirmed. In
Appeal No. 280 of 1958 filed by the executors it is urged that the order of
revocation be vacated in its entirety. At the hearing of the appeals no
substantial arguments were advanced before us. The executors did not contend
that even if this Court holds, agreeing with the High Court of Madras that the
will of Ramalingam was inoperative in so far it purported to dispose of the
immovable properties of the joint family of Ramalingam and his sons. at Madras
the order granting probate in respect of the immovable property should still
continue to operate. They have conceded before us that such an order revoking
grant of probate when it has become infructuous because of a decision in a suit
relating to title to the property affected thereby may properly be made in
exercise of the powers under s. 263 (d) of the Indian Succession Act, 1925. The
claim of the sons and the widow of Ramalingam for revocation of the order
granting probate by the Madras High Court in its entirety cannot be sustained
because, for reasons set out by this Court, they are unable to claim title to
the movables of Ramalingam in Madras.
The appeals, therefore, fail and are
dismissed with costs.
Civil Appeal No. 281 of 1958 This appeal
arises out of a suit filed by the .executors under the will of Ramalingam for a
declaration that 2000 shares in the India Sugars & 120 Refineries Ltd.,
standing in the name of Vishwanath, in truth, belonged to Ramalingam and that
be purchased the same for himself and out of his self-acquisitions but benami
in the name of Vishwanath, and accordingly under the will of Ramalingam they
were entitled to those shares as part of the estate. Vishwanath resisted the
suit contending that the shares belonged to the joint family consisting of
Ramalingam and his sons and that on the death of Ramalingam, his sons as
surviving co. parceners became owners of the entire property of the joint
family, including the shares. The trial Judge dismissed the suit filed by the
executors. In appeal, the High Court of Madras held that the judgment of the
Full Bench of the Mysore High Court dated July 29, 1949, was conclusive as
between the parties as to title to those shares. The High Court accordingly
allowed the appeal of the executors. Vishwanath has appealed against the decree
of the High Court rejecting his claim.
For reasons set out in the principal appeals,
we are of the view that the appeal must be dismissed. But we are of the view
that the cost,% of. Vishwanath as between the advocate and client of and
incidental to the suit and the appeals in the High Court and in this Court
should come out of the estate of Ramalingam in the hands of the executors.
Civil Appeal No 281 of 1958 This appeal
arises out of Suit No. 200 of 1944. The executors sued Gajambal, widow of
Ramalingam for a declaration that 2695 shares of the India Sugars &
Refineries Ltd. Standing in her name were purchased by Ramalingam benami out of
his own funds and the same were his selfacquisition, and they as executors of
the will of the were entitled to those shares under 121 authority vested in
them under the will dated September 10, 1942. The executors prayed for a
declaration that the shares were held benami by Gajambal for the benefit of
Ramalingam as the true owner. Gajambal admitted that she held the shares benami
out she contended that they did not belong to Ramalingam but to the
co-parcenary of Ramalingam and his sons and 'on the death of Ramalingam the
shares devolved upon the surviving coparceners and the executors had no title
or right thereto. This suit was tried with Suit No. 214 of 1944. The trial
Judge held that the shares belonged to the joint-family of Ramalingam and his
sons and the executors acquired no right to the shares under his will. In
appeal, the High Court agreed with the view of the trail Court as to the title
to the shares, but, in their view, the judgment of the Mysore High Court in
respect of movables including the shares in dispute was conclusive as to the
rights between the parties. The High Court accordingly reversed the decree
passed by the trial Court and decreed the suit of the executors. Against that
decree Gajambal has preferred an appeal in this Court which is No. 282 of 1958.
For reasons set out in the judgement in the
principal appeals, it must be held that the judgment of the Mysore High Court
was conclusive as between the executors and Gajambal in so far as it related to
title to the shares in dispute. The appeal therefore fails and is dismissed.
But we are of the view that the costs of Gajambal between Advocate and client
of and incidental to the suit and the appeals in the High Court and this Court
should come out of the estate of Ramalingam in the hands of the executors.
Civil Appeal No. 283 of 1958 This appeal arises
out of a suit relating to an immovable property, Nose. 1 and 2 Waddels Road,
122 Kilpauk, Madras. Of this property, the second respondent T. A. Ramchandra
Rao was the former Owner. There were court proceedings in Civil Suit No. 10 of
1940 filed by Gajambal against T.A. Ramchandra Rao, and a compromise decree was
passed in that suit and pursuant to that compromise, T. A. Ramchandra Rao sold
the property to Gajambal by deed dated August 7, 1940. The executors of the
estate of Ramalingam filed Suit, No. 91 of 1944 in the High Court of Madras
against Gajambal and T. A. Ramchandra Rao for a declaration that the Waddels
Road property formed part of the estate of Ramalingam and that Gajambal was
merely a benamidar for Ramalingam, and for an order for possession of the
property from Gajambal and T. A. Ramchandra Rao and for mesne profits at the
rate of Rs. 50/per mensem from the date of Ramalingam's death till the date of
delivery of possession to the executors Gajambal contended that the property
belonged 'to her and that it was acquired by her out of her own funds. T.A.
Ramchandra Rao denied the title of the executors and also liability to pay
mesne profits. The suit was also tried with Suit No. 214 of 1944. The trial
Court decreed the suit in favour of the executors but he declared that the
property belonged to the sons of Ramalingam and they were entitled to
possession and mesne profits. Against the decree passed by the trial Court the
executors preferred an appeal to the High Court. The appeal was dismissed.
In this appeal filed by the executors the
principal ground set up in the Memo of appeal is that the sons of Ramalingam
were not parties to the suit, and no decree directing the executors to deliver
possession to the sons of Ramalingam could be passed.
In the principal appeals 277 and 278 of 1958,
we have held that the executors did not obtain any 123 title to the immovable
properties in Madras which were sought to be disposed of under the will of
Ramalingam. It is true that to Suit No. 91 of 1944, the sons of Ramalingam were
not parties. But as on the view taken in the principal appeals, the executors
acquired no title to the property in ,suit that being the property belonging to
the joint family to which Ramalingam belonged-interference with the decree
passed by the High Court will not be called for.
Counsel for the executors has advanced no
argument in support of the appeal. We may observe that T. A. Ramchandra Rao has
set up a certain arrangement between him and Gajambal relating to his right to
occupy the Waddels Road premises free of payment of rent, and it is his case
that this arrangement was confirmed after issues were framed in Suit No. 91 of
1944 between himself and Vishwanath. T. A. Ramchandra Rao, it appears, did not
prefer any appeal before the High Court of Madras against the decree passed by
the trial Judge nor did he attempt to prove the, agreement set up by him. He
has not preferred any appeal against the decision of the High Court to this
Court. We dismiss the appeal filed by the executors. We may observe that for
the purpose of deciding this case it is unnecessary to consider whether the
arrangement set up by T. A. Ramchandra Rao is proved. The executors will pay
the costs of the first respondent Gajambal in this appeal.
HIDAYATULLAH, J.-One Ramalingam, a prosperous
contractor and businessman, died on December 18, 1942. Three months before his
death, he executed on September 10, 1942, the last of his many wills. By that
will, he cut off his eldest son, Viswanathan and a, daughter, Bhagirathi,
completely from any benefit, gave some immovable property and shares to his
widow, small bequests to 124 his other daughters, his grandson, Tyagaraja, son
of Viswanathan and his granddaughter from Bhagirathi. From the residue of his
vast estate, he directed that Rs. 50,0001be spent over a ward in a hospital and
the rest be applied for certain charitable purposes of a public nature.
He appointed three execuitors: ( 1) A. Wajid
(a retired official of Mysore State), (2) Narayanaawamy Mudaliar and (3) S. L.
Mannaji Rao. For sometime before his death, his relations with his family were
estranged and the latter had gone to the length of starting proceedings on June
2, 1942, under the Lunacy Act in the District Court, Civil and Military
Station, Bangalore, against him. Some evidence was recorded in that case, and
medical experts were examined.
After the death of Ramalingam, the executors
applied for probate of the will in the District Court, Civil and Military
Station, Bangalore. This was Suit No. 2 of 1913.
It was heard by Mr. P. Madappa, who granted
probate of the will on November 27, 1443. Two appeals filed against the
decision (R. A. Nos. 1 and 2 of 1944) were dismissed by the Court of the
British Resident Mysore on July 5, 1944. A further appeal to the Privy Council
was admitted, but it was later declared by the Judicial Committee to have
become incompetent due to the Constitutional Changes in which the Civil and
Militar Station was handed back to the Mysore State. (P.C....Appeal No. 53 of
1948 decided on December 1949).
Meanwhile applications for probate were.also
filed in the District Court, Bangalore and.the Madras High Court. some of the
properties affected by the will being situated, in these jurisdictions.
Probated were granted but subject to the decision of the appeal before the
Privy Council.
We now come to other suits, some proceeding
from the sons and widow of Ramalingam and some,from the executor of his will.
They were field in 126 the Mysore State and in the High Court of Madras. Two suits
were filed by the sons of Ramalingam in the District Court, Bangalore and in
the District Court, Civil and Military station, Bangalore respectively. The
first was Civil Suit No. 56 of 194 , and the second civil suit No. 60 of 1944.
These were suits for possession of
properties, movable and immovable, together with the business of Ramalingam
within the jurisdiction of these two Courts, on the averment that Ramalingam
belonged to a Hindu coparcenary, and was carrying on the family business
started with the family funds. These suits were directed against the executors
and diverse persons said to be in possession of the properties. The plea of the
executors per contra was that these were the personal properties and business
of Ramalingam, over which he had full disposing power. The two suits were later
consolidated and were decided in favour of the sons of Ramalingam by the
District Judge, A third suit was filed by the sons of Ramalingam in the Madras
High Court (0. S.), and was numbered C. S. No. 214 of 1944 for possession of
properties, both movable and immovable, said to be situated in Madras. A
detailed reference will be made later to these properties.
In addition to these suits many suits were
filed by the members of the family and the executors of the will in the Madras
High Court (O.S.). These were C. S. Nos. 200 of 1944, 203 of 1945, 274 of 1944,
344 of 1946 and 91 of 1944. To these suits it is not necessary presently to
refer. In all these other suits in Madras, the claim was for possession of some
specific property either under the will or on the averment that it belonged to
a joint family. Leaving out of account the suits concerning specific properties
for the present, the net position was that C. S. No. 56 of 1942 and C. S. No.
60 of 1944 related to properties in Mysore State, and C. S. No. 214 of 1944 in
the Madras High Court related to 126 properties, movable and immovable, in
Madras. ,In both, the main issue to be tried was whether Ramalingam died a
member of a coparcenary, possessed of joint family property and joint family
business.
The consolidated suit in the Court of the
District Judge, Bangalore, was decided first and it was held that the
properties were joint and that the will was incompetent.
Two appeals were then filed in the Mysore High
Court, R. As. Nos. 104 and 109 of 1947-48. The appeals were first placed before
Paramasiviah, C. J., and Balakrishaniah, J. They were adjourned at one of the
earlier hearings, as a compromise was contemplated. Later, the parties were at
issue as to whether a compromise took place. ..According to the executors, none
took place;...but according to the family, it did take place. .The appeals were
then fixed for September 23, 1948. On September 22, 1948, Paramasiviah, C. J.,
suddenly retired, and Mr. P. Medappa was appointed Chief Justice. The appeals
were then placed before Balakrishaniah and Kandaswami Pillai, JJ., and the
question of compromise was raised. The High Court, however, did not enquired
into the matter, since it was of opinion that the compromise, if any, could not
be recorded. This was on March 15, 1949.
After the appeals were heard, the two learned
Judges differed, and they pronounced separate judgments on April 2,
1949.Balakrishaniah, J., was for allowing the appeals,and Kandaswami Pillai,
J., for dismissing them.According to the Code of Civil Procedure in forcein
Mysore State, the judgment of the District Court would have been confirmed,
unless a Judge of the Division Bench or both the Judges referred the case under
s. 15 (3) of the Mysore High Court Regulation, 1884. Balakrishaniah, J.,
referred the appeals to a Full Bench.
127 The Mysore High Court then consisted of
five Judges. Of these, one learned Judge had appeared in the case and wished to
be left out. Of the remaining four, Balakrishaniah, J., had already heard the
appeals before, and expressed his judgment on the facts and the law involved in
them. There remained three other Judges.-The Chief Justice, who had decided the
probate case and had passed some strictures against the family in his judgment,
Puttaraja Urs, J. (who was appointed in place of Kaildaswami Pillai, J.),. who
had recorded the evidence in C. S. No. 60 of 1944 between 194547 and Mallappa,
J., had almost no connection with the case.
The Full Bench that was constituted to hear
the appeal,% then was composed of the Chief Justice, Balakrishaniah, J., and
Mallappa, J. This Full Bench heard the appeals or rather the arguments on
behalf of the executors, since the family took no part in the hearing and their
counsel withdrew. The appeals were allowed by the Full Bench, Mallappa, J.,
pronouncing the judgment: with which the other learned Judges agreed. This was
on July 29, 1949, the hearing having concluded on the 27th July, that is two
days before.
Civil Petitions Nos. 61, 62, 49 and 50 of
1949-50 were filed to obtain a review, but were dismissed by the Full Bench on
November 10, 1949.
Thus finished the Mysore part of the
litigation. Before the Full Bench in the Mysore High Court heard the appeals,
fruitless efforts were made by the sons of Ramalingam to induce the Maharaja to
appoint ad hoe Judges to hear the appeals. Requests were made by them to the
Chief Justice to grant them time, so that the state authorities might be moved
against and also to adjourn the appeals on other grounds. The sons of
Ramalingam gain that they were anxious to secure the services of outside
counsel to argue the appeals, but the requests were 128 rejected, These are all
matters of record, and there is no dispute about facts. It was alleged in the
Madras suit that there were unpleasant scones between Medappa, C. J., and one
Raju, counsel for the appellant, about which I shall say something later, as
the facts are in dispute. In short, the appeals were allowed, and the two suits
were dismissed.
This is a convenient stage to refer to the
pleas raised in the Mysore suits and the reliefs claimed therein. In this
connection, we need refer only to C. S. , No. 56 of 1942.
The case of the sons of Ramalingam was that
Ramalingam received his-father considerable paternal estate, both movable and
immovable. The immovable property was sold and with the proceeds of the sale
and other ancestral assets, several businesses were started by him commencing
with the business of a building contractor in Kolar Gold Fields. He prospered
in this joint family business, and all the properties were acquired from this
nucleus and were joint family properties, and even if there was any separate
property it was thrown into the common stock and became joint family property.
Possession was thus claimed of all the properties in the Schedules to the
plaint including inter alia :
Schedule A: (1) Houses Nos. 1 and 2, Waddells
Road, Madras (Item 13) (2) Palm Grove, Madras (Item 18) (3) 18566 shares of
Indian Sugars and Refineries, Ltd., in the name of Ramalingam (Item 22) (4)
1000 shares of the Indian Sugars and Refineries, Ltd., in the name of A. Wajid
(Item 24) 129 Schedule B : (1) Kolar Gold Field business (Item 1) (2) Vegetable
oil building contract (Item 5) (3) Oriental Films (Item 6).
The executors denied that there was any
ancestral nucleus or property or funds or business from which the estate was
built up, They denied the existence of a joint family business. According to
them, Ramalingam by his unaided enterprise carried on business for over 26
years and acquired all the properties in which no other member of the family
bad any share. Later, the plaint was amended to exclude the immovable
properties outside the State of Mysore. Suitable issues were framed to cover
these allegations and counter-allegations and all of them were finally decided
in favour of the executors. The District Judge decreed the suit, but it was
held by the Fall Bench that none of the properties,was acquired with the aid of
joint family nucleus, and that the Kolar Gold Field business was the private
business of Ramalingam. The decree of the District Judge, who had ordered
possession of the properties in favour of the family, was reversed.
The suit in the Madras High Court had been
stayed to await the dicision of the Mysore suits. In that suit, possession of
the movable and immovable properties in Madras was claimed. The immovable
properties were :
(1) House No 1, Weddells Road, with land.
(2) House No. 3, Weddells Road, with land
etc.
(3) Some parcels of land.
(4) House No. 14, Monteith Road, Madras. The
movable properties were:
130 (1) Assets of Oriental Films, Madras.
(2) 18366 3hares of Indian Sugars and Refineries
Ltd., Hospet.
(3) 1000 shares of Indian Sugars and Refineries
Ltd., Hospet (4) Balance of the amount for building constructed for the Mysore
Vegetable oil Co.
, Madras.
It was stated in the plaint that since the
executors had objected to the jurisdiction of' the Mysore Courts to entertain
the claim in respect of the properties situated in Madras, another suit was
being filed. The same pleas about the joint family, its nucleus, its family
members were, raised. The defence was also the same. When the judgment of the
Mysore High Court was relied upon by the executors as conclusive on the point
of jointness of the family, its nucleus and the joint character of the Kolar
Gold Field business, the sons of Ramalingam alleged that the judgment was not
in accordance with the rules of natural justice, that the decision was coram
non judice, and that the Chief Justice and Balakrishniah, J., were not
competent Judges, due to their bias and interest, to sit on the Bench. In the
course of numerous affidavits, the eldest son, Vishwanathan, made several
allegations showing the interest and prejudices of Medappa, C. J., his conduct
in and out of Court, and the violation of the rules of natural justice by the
Full Bench, over which he presided. Similarly, the presence of Balakrishniah,
J:, who had already given one judgment in the case and had attempted a
compromise between the rival parties, was alleged to render him incompetent to
sit on the Full Bench. On the other side, the executors claimed that the Mysore
High Court bad finally decided the issue of jointness in relation 131 to all
property, movable and immovable. They claimed that in this suit the questions
of jointness of the family, the character of the Kolar Gold Fields business and
the absence of nucleus must be taken to have beenconclusively decided in the
Mysore suits and appeals, and could not be reopened.
The sons of Ramalingam denied that the Mysore
Court was a Court of competent jurisdiction, in so far as the property in
Madras was concerned. In short, the executors claimed that the Mysore judgment,
in so far as any matter decided therein, was conclusive, while the family
maintained that it was not a Court of competent jurisdiction and the judgment
was itself coram non judice, and had been rendered by violating the principles
of natural justice. The first fight thus was under s. 13 of the Code of Civil
Procedure.
Though numerous facts were alleged to show
bias and interest on the part of the Chief Justice, the parties went to trial
on one allegation only. The allegations against Medappa, C. J., were ; (a) that
he was a close friend of A. Wajid, (b) that he had decided the probate case,
bad heard the witnesses now relied upon and had already formed pronounced
opinions about them and his judgment in the probate case was 'in danger of,
being annulled by the decision of the District Judge under appeal before him,
as the latter had held the family and the properties to be oint, (c) that when
he was a District Judge, he was using a car belonging to the executors and was
thus under their obligation and also interested in them, and (d) that he had tried
to dissuade Mr. Raju, counsel for the sons of 'Ramalingam, from conducting this
case. Rajagopalan, J., who heard the suit in the earlier stages, selected from
the allegations two which, according to him, if established, were capable of
establishing an 'interest' and a 'bias' in Meddappa, C. J. He declined to frame
issues about 132 the other allegations. The two selected allegations were the
use of the car and the attempt to dissuade Mr. Raju, Rajagopalan, J., also held
that the judgment of the Mysore High Court, did not constitute res judicata at
least in respect of the immovable property in Madras, (a) because this
questionwasnot considered by the Mysore High Court due to amendment of the
plaint, and (b) because the Mysore Court had no jurisdiction to try it.
Against the decision of Rajagopalan J., both
sides appealed.
The executors were aggrieved by the decision
about res judicata and the enquiry into the conduct of the Chief Justice, and
the sons of Ramalingam, by the restricted enquiry into the conduct of the Chief
Justice. The Divisional Bench, which heard the appeal, agreed with Rajagopalan,
J., about res judicata, and affirmed that part of his order. The Divisional
Bench held that the incident of the use of' the car was too old, even if true,
to show interest and was not relevant. The issue regarding the dissuation of
Mr. Raju was allowed to stand.
The allegations against Balakrishniah J.,
were that he had suggested the compromise when sitting with Paramasiviah, C. J.,
and had discussed, the terms, that he had thus rendered himself a Witness, that
he made strong remarks against the family duringthe hearings of the appeals
when sitting with Kandaswami Pillai, J., and the same were expressed in his
judgment dated April 2, 1949, and that showed his bias by awarding costs not
out of the state but against the sons of Ramalingam. He was said to be
incompetent to sit on the Full Bench in view of his judgment already
pronounced.
There were general allegations about the
refusal to adjourn the hearing at the request of the sons of Ramalingam, and
even when Sir Alladi Krishanaswami 133 Ayyar, the senior counsel, was to be
absent on public work in the Constituent Assembly.
The parties then went to trial before
Ramaswami, J. More affidavits and court-affidavits were filed. Though fresh
evidence was also led in this suit, by consent of parties the evidence recorded
in the two Mysore suits was treated as evidence in this suit. The records of
these suits and of the Privy Council were also marked by consent. The executors
asked that the question of the application s. 13 of the Code of Civil Procedure
be tried as a preliminary issue. This was declined and a Letters Patent Appeal
and One to this Court also failed. The affidavit filed in this Court were also
marked in the case.
Among the witnesses examined in the case were
Vishwanathan, the eldest son of Ramalingam, and Puttaraja Urs, J., for the
plaintiffs, and Abdul Wajid, Narayanaswami Mudaliar and Balakrishniah, J., for
the other side, Medappa, C.J., and Raju were cited but were not examined. After
a protracted trial, Ramaswami, J., held that the judgment of the Full Bench of
Mysore was coram non judice and that the judgment was thus not conclusive under
s. 13 of the Code of Civil Procedure-. He further held that the properties in
Suit were those of a joint family. The claim of the sons of Ramalingam, was
thus decreed, and possession was ordered against the executors and also
accounts. Ancillary orders were passed in the other suits already mentioned,
which were tried along with the main suit. C. S. No. 214 of 1944.
The executors appealed under the Letters
Patent. The Divisional Bench upheld the findings about the joint family, but
reversed those, about the Mysore judgment being coram, non, judice. As a result
the Mysore judgment was held to bind the 134 Madras Courts in respect of the
movables but not in respect of the immovable property in Madras. From the
judgment of the Divisional Bench, Civil Appeals Nos. 277 and 278 of 1958, have
been filed respectively by the sons of Ramalingam and the executors. The sons
of Ramalingam raise the issue that the judgment of the Full Bench of the Mysore
High Court was coram non judice and not conclusive in respect of immovables,
while the executors claim that it is conclusive in respect of any matter
decided by it, particularly about the Kolar Gold Fields business being the
private business of Ramalingam, contending that the only point that was open
for decision in the Madras High Court was whether any item of property was
acquired without the funds of that private business.
Though these appeals were argued at
considerable length the points were only two. They are : 1. the application of
s. 13 of the Code of Civil Procedure from these view points, viz., (1)
violation of the principles of natural justice, (2) bias and interest of some
of the Judges constituting the Full Bench, (3) competence of the Mysore Courts
as to the controversy between the parties and the extent of that competence ;
and 11. whether Ramalingam died in the jointness and whether the estates left
by him including his businesses belong to the joint family, the sons of
Ramalingam being the survivors.
Section 13 of the Code of Civil Procedure
reads :
" 13. A foreign judgment shall be
conclusive as to any matter thereby directly adjudicated upon between the same
parties or between parties under whom they or any of 135 them claim litigating
under the same title except(a) where it has not been pronounced by a Court of
competent jurisdiction (b) where it has not been given on the merits of the
case ;
(c) where it appears on the face of the
proceedings lo be founded on an incorrect vie w of international law or a
refusal to recognise the law of British India in cases in which such law is
applicable (d) where the proceedings in which the judgment was obtained are
opposed to natural justice (e) where it has been obtained by fraud (f) where it
sustains a claim founded on a breach of any law in force in British
India." it will thus be seen that the case was sought to be brought under
cls. (a), (c) and (d) of the section by the sons of Ramalingam, while the
executor deny the allegations and claim the benefit of the opening words. I
shall, therefore, take up these matters first and shall consider the evidence
before deciding how far, in law, the judgment is conclusive, if at all, I shall
follow the same order which I have set out.
The first head is whether during the hearing
of the appeal by the Full Bench the principles of natural justice could be said
to have been violated. This question, divides itself into two parts. The first
part concerns the actual hearing and the second the composition of Benches. The
first contention is that the Full Bench did not give a fair hearing and 136
compelled the case of the sons of Ramalingam to go unheard.
This was said to have arisen from the refusal
to adjourn the appeals as requested by the sons of Ramalingam. Now, such a
question can hardly be considered by another Court not hearing, an appeal but
deciding whether the conduct of the Judges of foreign Court who heard the
appeal,, amounted to a violation of the principles of natural justice, unless
an extremely clear and strong case is made out. The conduct of a case is a
matter ordinarily for the Court hearing it. All that is stated is that the sons
of Ramalingam were hustled and not granted some adjournments, when they asked
for ,them. Whether a particular prayer for adjournment ought to have been
granted is hardly a question for another Court to decide. In, this case the
conduct of the sons of Ramalingam cannot be said to be entirely correct. It is
matter of record that from the moment the names of the Judges of the Full Bench
were announced they had no desire to have the case heard and decided by them.
Admittedly, they made applications to the Maharaja and Dewan for the
appointment of ad hoc Judges. The attempt to get the appeals adjourned was
based on two reasons : firstly to avoid the presiding Judges, or at least two
of them, and secondly, to enable Sir Alladi Krishnaswami Ayyar to appear for
them. The attempt to secure adjournments were not only to suit their senior
counsel but also to play for time to get other Judges appointed, if possible.
As to the senior counsel, it is enough to say that there were other counsel in
the case, but the sons of Ramalingam asked them to withdraw from the case.
This was not done bona fide but merely to
force the Court to grant an adjournment it had earlier refused. In my judgment,
the sons of Ramalingam had long notice of the date of hearing, and if they
wished to engage other counsel, they had ample time and opportunity to do so.
It was argued that the appeals were adjourned once 137 by the Full Bench to
accommodate counsel for the executors, but when Sir Alladi asked for an
adjournment, it was refused. It was said that this showed a double standard.
It is common knowledge that an adjournment is
sometimes given because it is asked betimes but not another, if delayed. All
Courts do that. Perhaps, the Full 'Bench might well have granted an adjournment
for a short time specially as the sons of Ramalingam were nervous about the
result of their appeals. But I do not consider that I shall be justified in
reaching the conclusion that by the refusal, the principles. of natural justice
were violated, when I notice that three other counsel were already briefed in
the appeals and one of them had argued them before the Divisional Bench, I am
thus of opinion that it cannot be held that the principles of, natural justice
were violated so as to bring the judgment within the ban of el. (d) of s.
13 of the Code.
The next question is the composition of the
Full Bench, apart from the conduct of the Judges. Here, the objection is that
Balakrishniah, J., was incompetent to sit on the Bench after his views already
expressed in his dessenting Judgment. Now, it is clear that the two learned
Judges who had heard the appeals, had differed and had delivered separate
judgments. It was contended that Balakrishniah, J, was incompetent to make the
reference, because no sooner Kandaswami Pillai J., delivered his, than the
judgment of the District Judge, with whom be agreed, stood confirmed by virtue
of s. 98 of the Code of Civil Procedure in force in Mysore State. In other
words, Balakrishniah, J., bad missed his chance to make a reference, 'because
he had already delivered his judgment and the other Judge having delivered his,
the result under the Code follow. The action of Balakrishniah, J., taken under
a. 15(3) of the 138 Mysore High Court Regulation, 1884, was said to be too late
to arrest the consequences of s. 98. In my opinion, this argument has no
substance whatever, and I think that it would not have been arguable if there
was no authority to support it. I do not think it necessary to enter into the
niceties of the question when is a judgment final, that is to say, whether on
pronouncement by the Judge or on his signing it. The very interesting argument
of the counsel for the sons of Ramalingam may be left to be decided in abetter
case. If the argument is accepted, some curious results will follow. Either,
Balakrishniah, J., had to make a reference without waiting for his brother
Judge to deliver his judgment or to lose his right because no sooner Kandaswami
Pillai, J., read his judgment to the And than the judgment of the District
Judge would be confirmed. In fact, whoever delivered the judgment first' would
lose his turn to make a reference. It is obvious that Balakrishniah, J., would
wait in common courtesy for his brother Judge to deliver his judgment before
making the reference. The judgment of Balakrishniah, J., ends with the order of
reference and '-hen follows his signature. What happened really does not appear
from the record but is contained in affidavits, which, to my mind, should not
have been read in this, connection. It is obvious that the reference was made
before the judgment was perfected by the signature. No doubt, there is a
rulling of the Allahabad High Court in Lal Singh v. Ghansham Singh (1), but the
practice of the Mysore High Court was authoritatively established by a Full
Bench decision of that court in Nanjamma v. Lingappa (2). In view of the cursus
curiae thus laid down, the Allahabad view, even if right, cannot be applied. In
my opinion, the appeal stood properly referred to the Full Bench.
(1) (1887) I.L.R. 9 All 625. (2) (1949) 4
D.L.R.Mysore 118.
139 The next contention is that Balakrishniah
J., @at on the Full Bench after expressing his view on the merits of the
appeals in a long and considered judgment. It was contended that this deprived
the sons of Ramalingam was of a proper hearing before a Judge who had not made
up his mind already.
There is considerable room for doubt on this
point. There have been several cases before, in which Judges who have made a
reference to a larger Bench have sat on the Bench, even though they had earlier
expressed an opinion. Some of them have also changed their views later. Here
again, the practice of the Court must receive some attention. The learned
Attorney-General drew our attention to three cases of the Mysore High Court in
which precedents are to be found. He also drew our attention to oases from the
other High Courts in India and of some Courts abroad. In some of the foreign
cases, judges have sat in a Bench hearing case, after decision by them, in
appeal or re-hearing. Of course, one need not go so far as that in our country,
though in cases under el. 26 of the Letters Patent of the Chartered High Court,
Judges who have presided over Sessions Trial have sat at re-hearing after the
certificate of AdvocateGeneral. Examples of both kinds of cases are to be found
in the Law Reports: See Emperor v. Fatehchand Agarwalla (1), Emperor v.
Barendra Kumar Ghose(2). The learned AttorneyGeneral drew our attention to the
Encyclopedia of Laws and precedents (1906) Vol, 23, p. 588 and American
Jurisprudence (1958), Vol. 30A, p. 76, para 187 and William Cramp & Sons V.
International Curtis Marine Purbine Co.(,,)and Rex v.
Lovegrove (4). In some of the' earliar cases
the practice was quite common due to the smallness of number of Judges:
See, for example, Rohilkhand & Kumaon
Bank v. Row (5), The Queen Empress v. Saminda Chetti (6), Seshadri (1)
(1917)I.L.R.44Cal.477.
(2) A.I.R. 1924 Cal. 257 .
(3) (1912) 57 L. Ed. 1003.
(4) [1951] 1 All. E.R. 804.
(5) (1884) 6 All. 469.
(6) (1883). I.L.R.7 Mad. 274.
140 Ayyangar v. Nataraja Ayyar (1). There is
no law to prohibit this, and in a small Court with limited number of Judges,
this may be unavoidable. It is riot to be expected that ad hoc Judges would be
appointed every time such a situation arises. But what we have to guide
ourselves by is the practice obtaining in the Courts with which we are dealing.
If the practice there was common and
inveterate no litigant can be said to apprehend reasonably that he would not
got justice. There are no less than four cases of the Mysore High Court in
which a similar procedure was followed, in addition to those already cited. In
my opinion, in view of the strength. of the Court and the practice in vogue,
the Judgment of the Full Bench cannot, on the circumstance, be described as
against the principles. of natural justice.
The next contention in support of the plea
that the decision of the Mysore High Court was coram non judice and against the
principles of natural justice charges the learned Chief Justice and
Balakrishniah, J., with unjudicial conduct and prejudice and the former with
interest in the executors. It is convenient to take the allegations against the
Chief Justice and Balakrishniah, J., separately.
As regards the Chief Justice, it will be
recalled evidence was allowed. to be led only on the question of dissuading Mr.
Raju from appearing in the case. But no direct evidence was led. What
transpired between the Cheif Justice and Mr. Raju (If something did transpire)
could only be deposed to by one of them. None else was present at that meeting,
and neither was examined in the case. Mr. Raju had by then been imprisoned
after trial and conviction for an attempt on the life of Chief Justice, and was
not available for examination. It seems (1) (1898) I L.R 21 Mad. 179.
141 that no serious effort was made to get
his testimony, and it is now said that legal difficulties' prevented his
examination. But whatever the difficulties, the record shows that the sons of
Ramalingam voluntarily gave up Raju as a witness, and now it is too late for
them to complain of 'legal difficulties.' Nor can they for that reason make the
worse appear the better reason. The other also gave up Medappa C. J. Indirect
evidence was, of course, sought to be led, but it does not help either party,
and the party which must fail must obviously be the party which made the
allegation. Here, the sons of Ramalingam suffer from another disability.
Viswanathan himself wrote letters to say that the allegations were false, and
were made under advice referring most probably to Mr. Raju. No doubt these
admissions were sought to be withdrawn but only when confronted with the
letters, though Viswanathan, at first, denied their existence. The explanation
was that these letters were written under the pressure of Wajid. In view of the
basic fact that the allegation itself was not proved by evidence, it is
pointless to decide whether the letters were written under undue pressure. I
can only say that if Wajid's evidence appeared to be untrue in part,
Viawanathan impressed me even less. The fight over the dissuading of Mr. Raju
thus, at best, ended in a stalemate, if not wholly against the sons of
Ramalingam.
Having failed to establish the only issue
which was specifically raised, there was an attempt to revive the allegations
on which evidence was not allowed. Reference was made in this connection to
certain passages in the cross-examination of Wajid and the evidence of
Viswanathan.
This was on the use of a car belonging to the
estate by Mr. Medappa some years before, when he was the District Judge.
The foundation of 142 this allegation was in
affidavits sworn by Viswanathan, who seems to have begun each day of bearing
with an affidavit.
These affidavits were denied by the other
side through Wajid's affidavits. This vehement war of affidavits only resulted
in the interested testimony of Viswanathan, on the one side, and Wajid, on the
other. The matter has thus to be examined carefully. The evidence was not
related to any specific issue, there being none raised in the caset. Most of
the evidence was in affidavits, which do no appear to have been ordered and
could not, for that reason, be read as evidence, Such evidence as there was,
was highly interested and uncorroborated from any independent source. The
affair was extremely old even if true, to establish an interest, such as would
disqualify a Judge from hearing the case. In these circumstances, it is evident
that the case alleged, cannot be held to have been established.
Next was the allegation of friendship between
Medappa, C.J., and A. Wajid and Manaji Rao. Manaji Rao faded out as an
executor, and took hardly any interest in his duties as such, and cannot,
therefore, be said to have been a potent factor to interest Medappa, C. J. In
support of his allegation that Medappa, C. J., and A. Wajid were great friends,
Viswanathan swore a few affidavits. A fairly long affidavit (No. 440 of 1950)
in the High Court was reproduced in its entirety by Ramaswami, J., in his
Judgment. Some other affidavits were sworn in this Court when certain
proceedings for a writ of prohibition were started, and they were also read in
the High Court and were read to us.
Making a selection from these affidavits the
allegations may be stated briefly as follows : Medappa, C. J., was the Chief
Steward of the Bangalore Race Club and A. Wajid, his Secretary, that A. Wajid
was visiting Medappa, C. J., at the latter's house when the probate case was
going on and that they were great friends. It was also alleged that Chief Justice
143 Medappa's attitude during the probate case was extremely hostile to the
family, which was later reflected in the judgment of that case, and that
Medappa, C. J., was extremely worth, when Viswanathan asked him not to sit on
the Full Bench and the Chief Justice forced Viswanathan to disclose the name of
the counsel who had advised the move and said that he would see what to do with
him. All these allegations were denied by A. Wajid both in affidavits and in
his oral testimony. Balakrishniah, J., was questioned about what happened in
the Court and gave evasive replies.
The rule of law about judicial conduct is as
strict, as it is old. No Judge can be considered to be competent to hear a case
in which he is directly or indirectly interested. A proved interest in a Judge
not disqualifies him but renders his judgment a nullity. There is yet another
rule of judicial conduct which bears upon the hearing of case. In that, the
Judge is expected to be serene and evenhanded, even though his patience may be
sorely tried and the time of the Court appear to be wasted. This is based on
the maxim which is often repeated that justice should not only be done but
should be seen to be done. No litigant should leave the Court feeling
reasonable that his case was not heard or considered on its merit. If he does,
then justice, even though done in the case. fails in the doing of it.
Can we say that Medappa, C. J., was so
interested as to be disqualified, or that he acted in a manner that his conduct
in Court was a denial of justice ? Apart from the fact that A. Wajid denied
familiarity, though not acquaintance with Medappa, C. J., there are no
instances of undue leaning in favour of the executors. What happened in the
case was engineered by Mr. Raju, as the letters of Viswanathan himself
suggested. The family which 144 did not know how to get on the right side of a
father, however obdurate, acted in much the same way with the Court.
Their conduct on and from the announcement of
the Full Bench was calculated to exasperate and annoy any Judge, who held his
own reputation dear. Of course, the more Medappa, C. J., showed irritation, the
more Raju and his clients got publicity value, which they hoped to exploit with
the Maharajah. In My opinion, the conduct of the sons of Visbwanathan was
studied and designed to further their move for a different Bench. If we leave
out of consideration the dissuading of Raju, as to which also there is no
evidence, and the use of the estate car, about which also there is no evidence,
there remains a vague allegation of deep friendship denied on the otherside and
not proved otherwise by independent evidence. I say independent evidence,
because the evidence of Puttaraja Urs, J., about the conversation between him
and Medappa, C.J., about this case cannot be said to be disinterested because
the witness had his own grievance against the Chief Justice, which be was
ventilating to all and sundry. He even went to the length of reporting to the
Chief Justice of India. I am not required to pronounce upon the truth or
otherwise of Puttaraja Urs, J's personal aspersions on Medappa, C.J., but is it
obvious that he cannot be regarded as a witness who can be trusted to have
taken no sides. That leaves only the fact that Medippa, C. J., had heard and
decided the probate case against the family. But I do not think that this
circumstance was enough to disqualify him from sitting on a Bench to hear a
case in which more evidence has been led.
This happens frequently in all Courts.
The same conclusion is also reached, when one
examines the allegations about the conduct of Balakrishniah, J. There too, the
allegations are in, affidavits. These allegations are that Balakrishniah., J.,
made hostile remarks against the case of the sons of Ramalingam, while hearing
the appeal with 145 Kandaswami Pillai, J. If every remark of a Judge made from
the Bench is to be construed as indicating prejudice, I am afraid most Judges
will fail to pass the exacting test. In the course of arguments, Judges express
opinions, tentatively formed, sometimes even strongly ; but that does not
always mean that the case has been prejudged. An argument in Court can never be
effective if the Judges do not sometimes point out what appears to be the under
lying fallacy in the apparent plausibility thereof, and any lawyer or litigant,
who forms an apprehension on that score, cannot be said to be reasonably doing
so. It has frequently been noticed that the objection of a Judge breaks down on
a closer examination, and often enough, some Judges acknowledge publicly that
they were mistaken. Of course, if the Judge unreasonably obstructs the flow of
an argument or does not allow it to be raised, it may be said that there has
been no fair hearing.
The remarks of Balakrishniah, J., which have
been quoted in the case do not bear that suggestion. He seemed to have formed
opinions as the arguments proceeded, and if he had kept them to himself, there
would have been no complaint.
It is because they were expressed that there
is one. No doubt, he expressed his opinion in the judgment and then sat on the
Full Bench. But I have explained already that due to the retirement of Kanda,
swami Pillai, J., the incompetence of one other learned Judge who had acted as
a lawyer, the choice was between him and Puttaraja Urs, J. Perhaps that would
have been equally objected to on the other side, as subsequent events
disclosed. In any case, there was to be a rehearing, and if the Chief Justice,
included Balakrishniah, J., following the inveterate practice of his Court, it
is too much to say that the judgment was Coram non judice, or the principles of
natural justice were violated. The further contention that Balakrishniah, J.,
had 146 rendered himself a witness because the terms of compromise were
discussed before him' loses all significance in the face of the order that the
compromise, if any, could not be recorded in the interest of the estate.
On a review of these allegations, I am not
satisfied that the sons of Ramalingam have made an acceptable case. It cannot,
therefore, be said that cls. (a) and (d) of S. 13 are applicable, and that the
judgment of the Mysore Full Bench is not conclusive. I should not be taken to
hold the view that the hearing was without incident, or that the conduct of
these two Judges was always correct. But all the facts are overlaid with
exaggeration and perjury, and no definite conclusion can be reached. I am,
however, quite clear that the evidence falls far short of that degree of proof
which would entitle another Court to say of a foreign judgment that it was coram
non judice or that it had been rendered violating the principles of natural
justice.
I shall next consider the competence of the
Mysore Courts and the extent of the conclusiveness of the judgment of the Full
Bench under a. 13 of the Code of Civil Procedure. To decide them points, it is
necessary to examine critically the pleas in the cases in the Mysore Courts and
the decision on those pleas. In so far as the decision is concerned, I shall
confine myself to the judgment of the Full Bench, for its is only the final
judgment, which can be considered conclusive.
The suits were filed on identical pleas. Two
suits were necessary, because the property was situated in the jurisdiction of
two different Courts. In any event, both the suits were consolidated after the
return of the Civil and Military Station to the' Mysore State. The suits were
filed for declaration that the properties were joint family 147 properties,
that Ramalingam had no right to dispose of the same by a will, and for
possession and accounts. As against this, the executors had contended that the
properties were self acquired. The basis of the claim of the sons of Ramalingam
was contained in the following paragraph :
"The said V. Ramalinga Mudaliar came
into possession of movable and immovable properties including some houses in
Arunachala Mudaliar Road, Civil and Military Station, Bangalore, which had
belonged to his father, Vaidyalinga Mudaliar. The said properties were sold of
by Ramalinga Mudaliar and the sale-proceeds were invested in several
businesses. In or about the year 1928 the first plaintiff (Vishwanathan) joined
his father and actively assisted him in the several businesses of the family.
Apart from the fact that there was a nucleus of ancestral property with which
the businesses were carried on, the plaintiff submit that the adult members of
the family, viz., the first plaintiff and late Mr.
V. Ramalinga Mudaliar were actively
associated with the family businesses and that all the properties were treated
by Ramalinga Mudaliar as family properties." In dealing with the' case,
the Full Bench gave the following findings :
(1)That Vaidyalinga Mudaliar who was away In
Shimoga and Mysore working as District Sheristadar had nothing to do with the
contract business at the Kolar Gold Field Mines;
(2)That Shanmuga borrowed Rs. 2000/ on a
pronote, in which his father joined, from a Bank and did business with it
successfully;
148 (3) That this money was returned by
Shanmuga to his father ;
(4) That the other brothers, acknowledged in
writing that they had no title or interest in the business of Shanmuga which
were his self acquisitions ;
(5)That Ramalingam joined Shanmuga as a
partner and later brought out his interest;
(6)That Ramalingam did not come into
possession of any movable property of his father ;
(7)That even if Ramalingam sold the houses
left to him by the father they were his exclusive properties bequeathed to him
by Vaidyalingam whose self-acquisitions they were (8)That the claim of the sons
of Ramalingam that the properties were acquired with the aid of the joint
family nucleus and that were joint family properties was disproved.
In the result, it was that the business and
possessions were not of those of a joint family but the separate properties of
Ramalingam.
The question whether these finding or any of
them are conclusive in the subsequent litigation in Madras has been raised in
connection with the 18366 shares of the Indian Sugars and Refineries Ltd., by
the sons of Ramalingam, who seek to avoid the Mysore judgment and in respect of
the immovable property in Madras by the executors who claim the benefit of the
same under a. 13 of the Code of Civil Procedure. Though the question is mainly
one of interpretation of s. 13, the arguments were reinforced by reference to
Books on Private International Law and cases decided by English Courts.
149 The law as contained in s. 13 has been
the result of an evolution. In the Code of Civil Procedure 1887, the subject of
foreign judgments was a part of the law of res judicata.
It was enacted in s. 14 that, "No
foreign judgment shall operate as a bar to a suit in British India(a) if it has
not been given on the merits of the case ;
(b) if it appears on the face of the proceedings
to be founded on an incorrect view of international law or any law in force in
British India;
(c) if it is in the opinion of the-Court
before which it is produced contrary to natural justice ;
(d) if it has been obtained by fraud;
(e) if it sustains a claim founded on a
breach of any law in force in British India." That the section was to take
its colour from the preceding section (13) which dealt with res judicata is
made obvious by the Vlth Explanation to the latter section, which read :
"Where a foreign judgment is relied on,
the production of the judgment duly authenticated is presumtive evidence that
the Court which made it had competent jurisdiction, unless the contrary appears
on the record but such "'presumption may be removed by proving the want
of' 'jurisdiction." There was one other section (s. 12), which laid down
the circumstances for the application of the doctrine of Lis Alibi Pendens,
with which we are not concerned.
150 In the Code of 1882, an Explanation was
added to s. 14 by Act VII of 1888 (s. 5) that the Courts in British India must
examine, in a suit based on a foreign judgment of any foreign Court in Asia and
Africa excepting a Court of Record established by Letters Patent of Her Majesty
or any predecessor of Her Majesty or a Supreme Consular Court established by an
Order of Her Majesty in Council) the merits of that judgment when it was
pleaded as a bar in a suit before the British Indian Courts. This was obviously
done to prevent the judgments of the Courts of Indian States to be placed on an
equal footing with those in European Countries. The Governor-General in Council
was, however, given the power to declare which Courts in the Indian States
could have their decrees executed in British India as if they were decrees
passed by a British Indian Court. Some Indian States were so declared, and it
is interesting to know that Mysore State was one of them.
In the Code of 1908, with which we are
concerned, the ban against the judgments of Indian States was removed and s. 14
was re-enacted as a. 13, and Explanation VI was reenacted with slight
modifications of language as s. 14. The change between the old a. 14 which
worded in a negative way and s. 13, which states affirmatively that a foreign
judgment shall be conclusive is significant, and lies in the fact that during
this time there was a corresponding advance in the theories of Private
International law in England.
But this much is evident that in dealing with
the question of foreign judgments in India, we have to be guided by the law as
codified in our Country. That law attaches a presumption (though rebuttable) of
the competency of the Court, which pronounced the foreign judgment. It makes it
(a) conclusive (b) as to any matter thereby directly adjudicated between the
same 151 parties or between parties under whom they or any of them claim
litigating under the same title. The conditions precedent are contained in six
clauses of which the first clause is that it must be pronounced by a Court of
competent jurisdiction.
It may be mentioned at this stage that s. 41
of the Indian Evidence Act provides that a final judgment, order or decree of a
competent Court in the exercise of probate, matrimonial, admiralty or
insolvency jurisdictions shall be relevant and also conclusive proof as to
certain legal character. The, contention on behalf of the executors has been
that s. 41 of the Indian Evidence Act provides the rules for judgments in rem,
while s. 13 of the Code of Civil Procedure provides for judgments in personam
and the only judgments in rem are those mentioned in s. 41. To this argument, I
shall come later.
The first point to decide is whether the
Mysore Courts were competent to decide the controversy which they decided.
What is meant by competency can be looked at
from two points of view., There is the internal competency of a court depending
upon the procedural rules of the law' applicable to that Court in the State to
which it belongs. There is also its competency in the eye of international law.
The competency in the international sense means jurisdiction over
subject-matter of the controversy and jurisdiction over the parties as
recognised by rules of international law.
What is meant by competency in this context
was stated by Blackburn, J., speaking for-the Judges in answer to the question
referred by the House of Lords in Castrique v. Imrie (1). Relying upon Story is
Conflict of Laws, the learned Judge observed:
"We may observe that the words as to an
action being in rem or in personam, and the common statement that the one its
binding on (i) (1870) L.R. 4. L. 414.
152 third persona and the other not, are apt
to be used by English lawyers without attaching any very definite meaning to
those phrases. We apprehend the true principle to be that indicated in the last
few words quoted from Story. We think the inquiry is, first, whether the
subject-matter was so situated as to be within the lawful control of the State
under the authority of which the Court sits;
and secondly, whether the sovereign authority
of that State has conferred on the Court jurisdiction to decide as to the
disposition of the thing, and the Court has acted within its jurisdiction. If
these conditions are fulfilled, the adjudication is conclusive against all the
world." Story's exact words are to be found in para. 586 of his Book, and
this is what the learned author said:
"In order however to found a proper
ground of recognition of any foreign judgment in another country, it is
indispensable to establish that the Court pronouncing judgment should have a
lawful jurisdiction over the cause, over the thing, and over the parties. If
the jurisdiction fails as to either it is...
treated as a mere nullity, having no obligation,
and entitled to no respect beyond the demestic tribunals. And this is equally
true,, whether the proceedings lie in rem or in personam or in rem and also in
personam".
The opinion expressed by Story here is, in
its turn, based on that of Boullernois in his Traite, et de la Personnalite et
de la Realite des Lois Coutumes ou Status, (1766) Vol.
I, pp. 618-620.
The law stated by Blackburn, J., has been
universally accepted by all the Courts in the English speaking countries and it
was quoted with 153 approval recently by the Privy Council in Ingenohl v. Wingh
On & Co. (1) No distinction in approach to the question of competence 'is
made between cases in rem and in personam.
In Pemberton v. Hughes (2). Lindley, M. R.,
stated the law relating to competency to be this:
"Where no substantial justice, according
to English notions, is offended, all that the English courts look to is the
finality of the judgment and the jurisdiction of the court, in this sense and
to this extent-namely, its competence to entertain the sort of casewhich it did
deal with, and its competence, to require the defendant to appear before it. If
the court had jurisdiction in this sense and to this extent, the courts of this
country never enquire whether the jurisdiction has been properly or improperly
exercised, provided always that no substantial injustice, according to English
notions, has been committed.
There is no doubt that the courts of this
country will not enforce the, decisions of foreign courts which have no
jurisdiction in the sense. above explained-i.e., over the subject-matter or
over the persons brought before them: Schibsby v. Westenholz (3):
Rousillon v. Rousillon (4); "Price v.Dewhurst(5)
Buchanan v. Rucher (6) Sirdar Gurdyal Singh v. Rajah of Faridkote (7). But the
jurisdiction which aline is important in these matters is the competence of the
Court in an inter-national sense-i.e., its territorial competence over the
subject-matter and over the defendant. Its Competence or jurisdiction in any
other sense is not regarded as material by the courts of (1) A.I.R. 1928 P.C.
83.
(2) (1899)1 Ch. 781.
(3) (1870) L R 6 Q.B. 155.
(5) (1838) 4 My. Cr. 76.
(4) 1883) 4 Ch. D. 351.
(6) (1808) 9 Est. 192.
(7) [1894] A.C.670.
154 this country. This is pointed out by Mr. Westlake
(International Law, 3rd ed. s. 328) and by Foote (Private International Jurisprudence,
2nd ed. p. 547), and is illustrated by Vancuelin v. Bouard (1)...
It may be safely said that, in the opinion of
writers on international purposes, the jurisdiction or the competency of a
Court does not depend upon the exact observance of its own rules of
procedure...
A judgment of a foreign court having jurisdiction
over the parties and subject matter-i.e., having jurisdiction to summon
defendant before it and to decide such matters as it has decided-cannot be
impeached in this country on its merits: Castrique v. Imprie (2) (in rem);
Godard v. Gray (3) (in personam);
Messine v. Petrococchino (4) (in personam).
It is quite inconsistent with those cases and
also with Vanquelin v. Bouard (1) to hold that such a judgment can be impeached
here for a mere error in procedure. And in Castrique v. Imprie (2) Lord Colonsay
said that no inquiry on such a matter should be made." The dictum of
Lindley, M. R., goes a bit too far in reducing internal want of jurisdiction to
nothing. It may be that the judgment of the foreign Court may be a nullity, and
it would be too much to say that full faith should be given to such a judgment.
Indeed, in England,: this part of dictum was not applied; Papdopoulos v.
Papadopoulas (5). That apart, in my opinion, the above passage' admirably sums
up the law connected with the competency of the foreign Court.
Mere irregularities of procedure in the
exercise of jurisdiction by (1) (1863) 15 C.B. (N.S.) 341.
(2) (1870) L.R. 4 H.L. 414.
(3) (1870) L.R.6 Q. B. 139.
(4) (1872) L.R. 4 P.C. 144.
(5) [1930] P. 55.
155 the foreign Court are not enough: See
Ashbury v. Ellis (1);
but a total want of internal jurisdiction may
have to be noticed if pleaded in answer to the foreign judgment. There is no
real difference in so far as competency goes between actions in rem and actions
in personam. In some actions in personam, the necessity of jurisdiction over
any particular thing may not arise. This is always necessary inri judgments in
rem relating to immovable property. Besides this a judgment in personam binds
only the parties, while a judgment in rem seeks to bind others also. Thus, the
objection to the jurisdiction of the Court in a foreign country on other than
international considerations, must be raised in that country. This is settled
in Vanquelin v. Bouard (2). Objections to it internationally can be raised in
the Court in which the judgment is produced. But even if the objection to the
jurisdiction be raised in the Court where the judgment is produced, that Court
will consider in actions in rem whether the foreign Court had jurisdiction over
the subject-matter and the defendant and also in actions in personam, whether
the jurisdiction was possessed over the subject-matter and the parties. In the
approach there is no difference. In the latter class, of cases, the English
Courts consider the defendant bound where: (1) he is the subject of the foreign
country in which the judgment has been obtained:
(2) he was resident in the foreign country
when the action began;
(3) he, in the character of' plaintiff, has
selected the forum in which he is afterwards sued;
(1) [1893] A.C. 319, 344. (2) (1863) 15 C.B
(N.S.) 341.
156 (4) he has voluntarily appeared ;
(5) he has contracted to submit himself to
the forum in which the judgment was obtained.
I leave out the sixth ground added by Becquet
v. MacCarthy (1), as it has not been universally endorsed and has been said to
go to the verge of the law.
In addition to these, the English Courts take
into consideration the conduct of the party raising the objection against the
foreign judgment. If he, has plaintiff, invoked the jurisdiction of the foreign
Court, he cannot be allowed to complain against the judgment on the ground of
competence. This was laid down in very clear terms by Blackburn, J., in Schisby
v. Westenholz (2) as follows :
"Again we think it clear, upon
principle, that if a person selected, as plaintiff, the tribunal of a foreign
country as the one in which he would sue, he could not afterwards say that the
judgment of that tribunal was not binding upon him." The contrary case is
General Steam Navigation Co. v. Guillon(3), where the conduct of the defendant
was not held binding. Recently, in Harris v. Tayalor (4), appearance
conditionally by a defendant in a foreign Court to object to jurisdiction was
considered not to be the sort of conduct to bind him, but in Travers v.
Holky(5), Donning, L, J. (as he then was), has made certain obiter remarks
against the last case. Since I am not concerned with the conduct of a defendant
before a foreign Court but' that of a plaintiff, I need not refer to these
cases in detail.
(1) (1831) 2B. & Ad.951. (2) (1870) L. R.
6 Q. B 155, (3) (1843) 11 M. & W. 877. 894. (4) [1915] 2 K.B. 580.
(5) [1953] P. 246.
157 Applying these tests to find out if the
Mysore Courts were competent to deal with the case both internally and
internationally, it is clear that they were.The subject of the controversy was
the status of Ramalingam, a subject and resident of Mysore State. His will made
in that jurisdiction was admitted to probate there. His sons and other
relatives who figured as parties and those in possession of the property were
in that State. The property which was the subject of dispute, including the
Kolar Gold Fields business situated in Mysore State, but excluding the shares
in the Indian Sugars and Refineries Ltd., (Which are disputed as to their
situs) was also in Mysore. The sons of Ramalingam themselves commenced the two
suits and invoked the jurisdiction of the Mysore Courts. They claimed that the
Kolar Gold Fields business belonged to a joint family and not to Ramalingam
alone. They in fact, succeeded at first, but lost on appeal. In view of these
considerations and applying the dicta of Blackburn, J., and Lindley, M. R., the
conclusion is inescapable that the Mysore Courts were competent internally as well
as inter. nationally to decide about the status of Ramalingam and the rights to
or in the Kolar Gold Fields business between these very parties. It may be
mentioned here that the competence is to be judged in relation to the subject
matter of the suit in the foreign Court and not in relation to the subject
matter of the suit in another country where the judgment is produced. Ex facie,
the Mysore Court exercised no jurisdiction in respect of the properties in
Madras. They were never the subjectmatter of the Mysore suits and that
subject-matter is wholly irrelevant when considering the competency of the
Mysore Court. What has to be considered is the effect of the Mysore judgment
upon the litigation in Madras in view of s. 13 of the (.')ode. If, then, the
Mysore Courts were Courts of competent jurisdiction, the Question, is how far
are the 158 judgments conclusive. The properties, with which we are concerned,
are the 16,000 odd shares of the Indian Sugars and Refineries Ltd., and the
immovable properties in Madras.
The executors claim that it) respect of the
shares there is a decision between the parties and in respect of the immovable
property, no question of status of Ramalingam or the ownership of the Kolar
Gold Fields business can be reconsidered in view of the Mysore judgment while
the other side seeks to avoid the judgment altogether.
Numerous cases from English Law Reports and
some standard text-books on the subject of Private International Law or, as it
is sometimes called, the Conflict of law, were cited in support by the rival
parties. It may. however, be said at the start that the treatment' of the
subject in India is somewhat different from that in England. In our country,
the binding force of a judgment arises partly from adjective law and partly
from the law of evidence. The Subject of res judicata, which is based upon a
rule of public policy as expressed in Coke on Littleton as interest rei
publicae ut sit finis litium is mainly to be found in the Code of Civil
Procedure, while the evidentiary value of Judgments is dealt with in the Indian
Evidence Act. In England, the subject of res judicata is mainly dealt with as
part of the law of evidence, and a former judgment is said to create an
estoppel by record. The subject of the conclusiveness of foreign judgments is
dealt with in India in the law of procedure, while in England it is dealt with
as a part of Private International Law. This law is not to be taken as a kind
of law binding upon the States of the world arising out of a communis comsensus
of the States. There is no such consensus, though reciprocal laws exist. Each
Country decides for itself how far the foreign judgments will be received. A
foreign 159 judgment receives different treatment in different parts of the
world. Apart from reciprocity between different Countries which have agreed to
be Mutually bound, there are numerous approaches to the problem. In some
Countries, direct enforcement of such judgments, if registered in the Country
of origin, is permitted in the same way as in ss' 44 and 44A of our Code of
Civil Procedure. In others, the judgments (unless reciprocal agreements exist)
must be sued upon. There too, the question arises whether the original cause of
action merges in the judgment-transitu in rem judicature, or survives. In some
Countries like France, the judgment of a foreign Court is subjected to
scrutiny, while in some of the Nordic Countries, the judgment has no value.
In Tallack v. Tallack (1) jurisdiction was
refused, because the judgment of the English Court would not have bound the
parties in the foreign Country. Numerous rules have been evolved in England and
the English speaking Countries, mainly by Judges, which show the extent to and
the conditions under which the judgments is received. In America, the Restatement
has done much to simplify the subject, but even so, it has proved inadequate.
The subject has been made so complicated that one learned author has been
provoked to say.
"In one respect the law of Conflict of
Laws is nothing but an unmitigated nuisance, serving no useful purpose
whatever." (Leflar The Law of Conflict of Laws (1959) para 8 of
Introduction).
The salient point of English law on the
subject may be stated to be that all judgments are divided into two broad
categories-judgments in rem and, judgments in personam. The best defin(1)
(1927) P. 211.
160 defitions of these terms tire to be found
in Halsbury's Laws of England, Vol. 22, p. 742, para 1605, which reads:
.lm15 "A judgment in rem may be defined
as the judgment of a court of competent jurisdiction determining the status of
a person or thing, or the disposition of a thing, as distinct from the
particular interest in it of a party to the litigation. A judgment in personam
determines the rights of the parties inter se to or in the subject matter in
dispute, whether it be corporeal property of any kind whatever, or a liquidated
or unliquidated demand, but does not affect the status of either persons or
things, or make any disposition of property, or declare or determine any
interest in it except as between the parties litigants.
Judgments in personam include all judgments
which are not judgments in rem but, as many judgments in the latter class deal
with the status of persons and not of things, the description 'judgments inter
partes' is preferable to 'judgment in personam'.
The definition of Halsbury is merely a
restatement of a definition given by Bowers, and it has been accepted and
applied by Evershed, M. R., in Lazarus-Barlow v. Regents Estates Co. Ltd. (1).
Such judgments, says Phipson on Evidence, 8th Edn., p.401, are conclusive in
the case of judgments in rem against parties or their privies or strangers, and
in the case of judgments in personam, against the parties and their privies
only. In the matter of foreign judgments, the rule about judgments in rem has
been somewhat reduced in its extent in one direction and extended in another in
recent years in England. In the matter of (1) (1949) 2 K.B. 465, 475.
161 status' it has been extended to give more
and more faith to foreign decrees but in the other direction, it has been
curtailed. In respect of things and determinations of rights or title to things
(excluding immovable property as to which I shall say something later)
judgments in rem are now confined to Admiralty actions. There is, however, a
remnant in respect of movables, which is represented in the three rules of
Westlake (a. 149) which are:
(a) judgments which immediately vest the
property in a certain person as against the whole world;
(b) judgments which decree the sale of a
thing in satisfaction of a claim against the thing itself; and (c) judgments
which order movables to be sold by way of administration.
This distinction is summed up by Holmes, C.
J., in Tyler v. Judges of the Court of Registration as follows:
" If the technical object of the suit is
to establish a claim against Some particular person, with a judgment which
generally in theory, at least binds his body, or to bar some individual claim
or objection, so that only certain persons are entitled to be heard in defence,
the action is in personam., although it may concern the right to, or possession
of a tangible thing......... If on the other hand the object is to bar
indifferently all who might be minded to make an objection of any sort against
the right sought to be established and if any one in the world has a right to
be heard on the strength of alleging facts which, if true show an inconsistent
interest, the (1) (1900) 175Mass.71.
162 proceeding is in rem............ All
proceedings, like all rights, are really against persons. Whether they are
proceedings or rights in rem depends on the number of persons affected." (
Cheatham-Cases and Materials on Conflict of Laws, p. 168).
This classic exposition, which has evoked.
the admiration of every text-book writer and also the Privy Council in Ingenohl
v. Wing On & Co. (1) sums up in an admirable manner the distinction between
the two kinds of judgments.
I shall now follow up and analyse the
application of these principles in England and America where the law is almost
the same, and then show how the subject has been treated in the India Statutes.
In dealing with this subject, I shall not enter upon two subjects. They are the
reciprocal arrangements and Arbitral awards, which are two classes apart. The first
condition of recognition of a foreign judgment is, of course, the competency of
a foreign Court, about which I have said much already. The next condition is
the absence of fraud of collusion. Further still, the judgment which is
propounded must not offend the public policy of English law, or must not be
contrary to the principles of natural justice. Barring these, the judgments of
foreign Courts are received in actions based on them and given effect to under
certain conditions arising from whether they are in rem or in personam. I have
shown already that the judgments in rem are concerned with res.
But the word "res" is given a very
large meaning. Lord Dunedin in Salvesan v. Administrator of Austrian Property
(2) observed :
"The other point on which I want to say
a few words is the question of what is a judg(1) A.I.R. 1928 P.C. 83.
(2) (1927) A.C. 641, 662.
163 ment in rem. All are agreed that a
judgment of divorce is a judgment in rem, but the whole argument of the judges
in the Court of Sessions turns on the distinction between divorce and nullity.
The first remark to be made is that neither marriage nor the status of marriage
is, in the strict sense of the word, a res, as that word is used when we speak
of a judgement in rem. A res is a tangible thing within the jurisdiction of the
Court, such as a ship or other chattel. A metaphysical idea, which is what the
status of marriage is, not strictly a res, but it, to borrow a phrase, savors
of a res, and has all along been treated as such. Now, the learned Judges make
this distinction. They say that in an action of divorce you have to do with a
res, to wit, the status of marriage, but that in an action of nullity there is
no status of marriage to be dealt with, and therefore Do res. Now it seems to
me that celibacy is just as much as status as marriage." See also the
observations of Lord Haldane at pp. 652-653.
Commenting upon that case, Cheshire (op. Cit.
8UP) says at p. 657:
"Thus the word res as used in this
context includes those human relationships, such as marriage, which do not
originate merely in contract, but which constitute what may be called
institutions recognised by the State." In the same way, adoptions in
foreign Countries which were not recognised in England at one time are now being
recognised. See Dicey's Conflict of Laws, 7th Edn., p. 460, particularly p.
461, where Dicey's Original view is shown to be obsolete. The subject of
adoption is being treated 164 as in pari materia with legitimation. Cheshire's
views expressed in his book (pp. 442-443) show that on the analogy of a case
like In re Goodman's Trusts (1) they are being equated. Cheshire then observes
in forceful language:
"The genius and expansion of the common
law would indeed wither away if the traditional practice were to be abandoned
of applying the principles already established for one type of case to another
type substantially similar in nature." He then concludes; that the
existence of Y's status as fixed by the law of the domicile common to him and
his adopter must on principle be recognised in England. In England, judgments
in personam which are ancillary to such judgments in rem were considered
binding at one time, see Phillips v. Batho (2 ); but the view has since changed
somewhat.
As regards the extent of conclusiveness of
foreign judgments, the subject again gets divided into two parts.
Judgments in rem, according to Foote on
Private International Law, 5th Edn., p. 625, are received in respect of any
matter decided by them. The following passage gives his views:
"Accepting then, as incontrovertible the
principle that a foreign judgment in rem is conclusive in all Courts and
against ail parties, it remains to consider to what its conclusiveness has been
held to extend. As to the fact directly adjudicated upon there can be no doubt;
but there is often difficulty in applying the principle to facts inferentially
decided, as well as to the grounds, expressed or implied, of the foreign
decision. The safest expression of the English law on the subject appears to be
that the truth of every fact, (1) (1881) 17 C.H.D. 266.
(2) (1913) 3 K.B. 992.
165 which the foreign Court has found, either
as part of its, actual adjudication or as one of the stated grounds of that
decision, must be taken to be conclusively established." He, however, adds
that the foreign Court will not be taken as having established any fact which
it has not expressly found as laid down in the judgment relied on. Short of
this, not only the actual decree but every adjudicative fact is treated as
conclusively decided. Rattigan in his Private International, Law at p. 268
observes:
"This conclusiveness extends to every
fact which the foreign Court has found, either as part of its actual
adjudication or as one of the stated grounds of its decision." Dicey in his
Conflict of Law, 7th Edn. (Rule 183) ,states the law in concise form:
"A foreign judgments is conclusive as to
any matter thereby adjudicated upon and cannot be impeached for any error
either.
(1)of fact (2)or of law".
In so far as judgment in. personam are
concerned, any of the matters decided inter partes are binding on the parties
and privies, though not on strangers. This follows from the rule now firmly
grounded that a foreign judgment well be examined from the point of view of
competence but not of its errors, subject, of course, to there being no fraud,
collusion, breach of the principles of, natural justice or of public policy of
England or a wrong apprehension of the law of England, if that law be involved.
From the conclusiveness 'of foreign decrees, it. may be said 166 here that the
penal laws of another Country or judgments involving a penal decree are
excluded. It is customary to quote Chief Justice Marshall's famous dictum in
the Antelope (1): ',The Courts of no country execute the penal laws of
another." The same is the position of decrees, orders or judgments in
matters of taxation and penalties under taxing laws. The American Courts follow
in these respects the law in England, and Goodrich in his Conflict of Law, p.
603, sums up the American approach in one pithy sentence :
"A valid foreign judgments should be
recognized and given effect in another State as a' conclusive determination of
the rights and obligations of the parties. This is the modern doctrine."
He adds further:
"On principle, the foreign judgment
should be conclusive.
The judgment has determined that, under the
law of the State where it was rendered, the plaintiff has or has not certain
rights, and that the defendant is or is not under certain corresponding legal
obligations. Those rights and obligations exist in the State where the judgment
was rendered so long as the judgment remains in force. When such a judgment is
presented for recognition and enforcement in another State, it ought to be
treated no less favorably than any suit founded upon foreign operative
facts." Indeed, there is now a liberal approach in respect of immovable
property outside the jurisdiction. At p. 217, Goodrich has cited instances of
recognition of foreign judgments in respect of matters which, normally, would
not come within the jurisdiction of the Court. He says :
(1) (18225) 10 MI eat If, 123. 6 L. Ed. 268.
167 Plaintiff asks defendant, who is before
the Court, be compelled to execute in plaintiff's favour a conveyance of land
which lies outside the State. Is there any defect in 'jurisdiction because the
land is in another State? It is clear that the Court could not make its decree
operate directly to convey the land nor could it effectively authorize a master
appointed by the Court to make the decree if the defendant were unable or
unwilling to do it. "But if, at the situs of the land a deed executed
elsewhere will be recognized as effective, the Court may order defendant, who
is before it, to execute a deed conveying the land. This power has been
exercised by the Court even since the time of the historic litigation between
Penn v.
Baltimore (1), and is recognized in
innumerable decisions." The same views have been expressed by Stumberg in
Conflict of Laws (2nd Edn.), p. 69, Nussbaum in his Principles of International
Law (1943), op. 299, 235 and others.
In India, the law as to conclusiveness of
judgments is contained in ss. 40-44 of the India Evidence Act and ss, 1114 of
the Code of Civil Procedure. Section 41 of the former makes certain special
kinds of judgments conclusive, while s. 11 makes judgments in India and s. 13
makes foreign judgments conclusive under certain conditions. I shall first
analyse the sections in the Indian Evidence Act.
Section 40 makes the existence of a judgment
ete. which by law prevents any Court from taking cognisances of a suit or
holding a trial, a relevant fact when the question is.
whether such Court ought to take cognisance
of such suit or hold such trial. This enables a judgment, order or decree,
whether of a Court in India or a foreign Court, (1) (1750) 1 Ves Sen. 444.
168 to be propounded for the particular
purpose mentioned.
Section 42 next mentions that judgments etc.
other than those mentioned in a. 41, are relevant if they relate a matters of
public nature relevant to the enquiry, but such judgments, etc., are not
conclusive proof of what they state. The illustration shows what is meant by
matters of a public nature. Section 43 then lays down that judgments etc.,
other than those mentioned in as. 40, 41 and 42, are irrelevant unless the
existence of such judgments etc., is a fact in issue or is relevant under some
other provision of the Evidence Act. Section 44 says lastly that any party to a
suit or other proceeding may show that any judgment etc., which is relevant
under as. 40, 41 or 42 and which has been proved by the adverse party was
delivered by a Court not competent to deliver it or was obtained by fraud or
collusion. Section 41 which I left out, provides for relevancy of certain kinds
of judgment and for their conclusiveness. It reads :
"A final judgment, order or decree of a
competent Court, in the exercise of probate, matrimonial, admiralty or
insolvency jurisdiction, which confers upon or takes away from any person any
legal character, or which declares any person to be entitled to any such
character, or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the existence of any such
legal character, or the title of any such person to any such thing is relevant.
Such judgment, order or decree is conclusive
proofthat any legal character which it confers, accrued at the time when such
judgment, order or decree came into operation :
that any legal character to which, it
declares any such person to be entitled, accrued to 169 that person at the time
when such judgment, order or decree declares it to have accrued to that person:
that any legal character which it takes way
from any such person ceased at the time from which such judgment, order or
decree declared that it had ceased or should cease;
and that anything to which it declares any
person to be so entitled was the property of that person at the time from which
such judgment, order or decree declares that it had been or should be his property."
The judgments mentioned in this section are called judgments in rem. As far
back as Yarakalamma v. Ankala (1) distinction 'was made between judgments which
bound only the parties to it and judgments which bound also strangers. The
terms of Roman Law which divided law into quod ad res pertinet and quod ad
personas pertinet furnished the root, and this classic distinction has been
taken as the foundation. In Kanhya Lal v. Radha Charan(2) Peacock, C.J., gave a
list of judgments in rem, and that list has been followed in framing s.41. The
list of such judgments is much longer in Taylor on evidence, and the present
day Private International Law includes all question of status within it.
Sir James Stephen is reported to have said
that he included only those judgments to which conclusiveness could be given
from the point of view of the law of evidence and the conclusiveness attaches
as to a given matter of fact relevant to the issue, which may be proved from
the judgment. That there may be other provisions, of some other law which may
also attach conclusiveness to judgment etc., of some other kinds goes without
saying. Section 41 does not prohibit the making of other laws. The (1) 2 M
H.C.R. 276.
(2) (1667) 7 W.R. 338.
170 provisions of El. 11 of the Code of Civil
Procedure, for example, go much farther than s. 40 or s. 41 of the Indian
Evidence Act. Section 40 touches only the fringe of the law of resjudicata ;
but provision for that has been made more exhaustively in s. 11 of the Code of
Civil Procedure. The difference between provisions in the law of evidence and
the law of procedure is that one deals with the question of proof and the
other, with a bar of suit. A fact which can be proved from a judgment made
conclusive for that purpose need not be proved afresh. The proof of the
judgment is enough. But a second suit can only be barred on the principle of
resjudicata if the law says so ; and this bar is regarding the adjudication of
a controversy decided before. It is not possible to add to the list of subjects
mentioned in s. 41 of the Indian Evidence Act, except by legislation.
Conclusiveness there attaches only to the subjects mentioned therein, and a
fact established by a judgment of a competent Court on any of the subjects is
taken to be proved, and established in all subsequent proceedings and does not
require to be proved again. The Judicial Committee in Appa Trimbak v. Waman
Govind (1) did not extend the Principle of s. 41 to a case of adoption and a
former judgment on the question of adoption was considered under s. 1 of the
code and not under P. 41 of the Indian Evidence Act. The former judgment was
not accepted under s.
11 of the Code as it did not come within its
terms, and the fact was allowed to be proved de novo. The reason given for the
nonapplicability of s. 41 was said to be that the decisions on adoption were
excluded by Sir Barne Peacock in Kanhya /,at v. Radha Charan (2) and also in s.
41.
From the above, it follows that conclusi.
veness, from the point of view of the law of (1) A.I.R. 1941 P C. 85.
(2) (1867) 7 W.R. 338.
171 evidence, will attach to a judgment,
order or decree, only if it falls within the categories mentioned in s. 41.
Once a judgment etc. falls within it, the law dispenses with the proof of the
fact and the conclusion of the former judgment etc., about the legal character
which it confers or declares, together with the declarations of property
arising from that legal character, is final. In my opinion, the conclusiveness
under s. 41 of the Indian Evidence Act cannot be claimed in this case for the
Mysore judgment in view of the enumeration of certain jurisdictions in the
section, bacause the status of being joint or separate in relation to a Hindu
coparcenery property is not one of the legal characters mentioned in it.
The question thus to consider is whether s.
13 of the Code of Civil Procedure is confined to those judgments, which do not
fall within s. 41, or in other words, to judgments in personam as contended by
the learned Attorney General.
There is nothing in the language of s. 13 to
suggest this, as the section provides a general rule about foreign judgments
and makes them conclusive between the same parties or between parties under
whom or any of them claim litigating under the same title. .From the mention of
parties and their privies, it does appear as if the section is confined to
judgments inter partes, to borrow the language of Halsbury.
But a comparison of the terms of the section
with those of ss. 40-44 of the Indian Evidence Act discloses a different
meaning. Section 41 speaks of a competent Court, and s. 44 allows the question
to be raised whether the judgment was obtained by fraud or collusion. But ss.
40-44 of the Indian Evidence Act do not contain certain provisions which are
contained, in s. 13 as conditions precedent to the conclusiveness of foreign
judgment. It is inconceivable that a foreign judgment in rem of 172 the class
mentioned in s. 41 of the Indian Evidence Act was intended to operate, as
conclusive, even though it was opposed to the principles of natural justice or
though it was not given on the merits of the case or if it was founded on an
incorrect view of international law or the law of India, or was in breach of
any law in force in India. The existence of such prior conditions in s. 13 of
the Code and their absence in the Evidence Act compel one to hold that both
judgments in rem and judgments in personam are contemplated by s. 13 of the
Code. The only difference is that while the Code makes foreign judgments
conclusive inter partes, s. 41 makes certain determinations described there as
conclusive proof even against strangers. But such determinations, if found to
foreign judgments, must also comply with the conditions stated in a. 13 to
merit conclusiveness, and a foreign judgment will fail to bar a suit if those
conditions are not also fulfilled. It is from this standpoint that I shall
consider these appeals, because, in my opinion, no other approach is
admissible.
The judgment of the Mysore High Court cannot
be brought within the terms of s. 41 of the Indian Evidence Act except in so
far as it would have, if the probate granted by the Mysore Court had been
cancelled. Such an eventuality has not taken place, and I need not consider it,
because even there, some difficulties are possible. Here, the judgment of the
Mysore High Court was given between the self-same parties, who are litigating
under the same title in Madras.
The executors rely here, as they did in
Mysore, on the will of. Ramalingam, and the sons of Ramalingam rely on his
being a member of coparcenery. The will is effective or ineffective if it
disposes of the separate property of Ramalingam or the property of a 173
coparcenery. These titles were finally decided in respect of the properties in
Mysore including the business of Ramalingam and the properties, movable and
immovable, in Mysore State. No decision was given in respect of the property in
Madras. The matter relating to Hindu coparcenery and the position of Ramalingam
were really questions of status, and why this is so I shall now explain.
Ordinarily, a judgment upon status is
considered to be a judgment in rem; see the classic definition of a judgment in
rem in Smith's Leading Cases which has stood unchanged through the many
editions. There is, however, no settled definition of 'status'. Paton in his
jurisprudence (1946) at p. 256 quoting the analysis of Dr. Allen (Legal Duties)
says:"Status may be described as the fact or condition of membership of a
ground of which the powers are determined extrinsically by law, status
affecting not merely one particular relationship, but being a condition
affecting generally though in varying degree a member's claims and
powers." Dr. Allen calls it.
"the condition of belonging to a
particular class of persons to whom the law assign certain peculiar legal
capacities or incapacities or both." Dr. Allen also adds:"We
must-distinguish three quite separate things Status the condition which gives
rise to certain capacities or incapacities or both;
Capacity the power to acquire and exercise
rights. and the rights themselves which are acquired by the exercise of
capacity." 174 Thus status leads to capacity, and capacity to rights and
to rights can be said to be embedded in status and to spring from it. Scrutton,
L. J., in In re Luck's Settlement Trusts (1) said: "Status is in every
case the creature of substantive law." According to Salmond, the aggregate
of man's proprietary rights constitutes his estate his assets or property. The
sum total of his personal rights, on the other hand, constitutes his status.
According to him, substantive Civil Law is thus divided:Substantive Civil Law |
----------------------------------------| | | property Obligations Status
Domestic | ------------------| | Status Extra-domestic status Domestic status,
as he explains in an appendix to his Book is"the Law of family relations,
and deals with the nature acquisition and loss of all these personal rights,
duties, liabilities and disabilities which are involved in domestic
relations." The conflict of law ordinarily recognises status created by
the law of another country. See In re Luck's Settlement Trusts(1) at p. 891 and
Salvesan v. Administrator of Austrian Property(2). In the. domain of Domestic
Status (barring marriage) there is no element of contract, and Maine says in
Ancient Law ,,the movement of progressive secirties has hitherto been a
movement from status to contract" Hollond in (1) (1940) 1 Ch. 864, 890.
(2) [1927] A.C. 641, 662.
175 his Jurisprudence gives sixteen instances
of status and includes in them 'patria potestas' which brings the matter very
near a Karta of a joint Hindu family.
All the above definitions have been
judicially noticed and applied by the Australian High Court in the exposition
of s. 35 of the Judiciary Act, 1903, which allows an appeal to be brought
without leave from any judgment of the Supreme Court of a State which
"affects the status of any porson". In Daniel v. Daniel(1) Griffith,
C. J. defined status to be:"a condition attached by law to a person which
confers or affects or limits a legal capacity of exercising some power that
under other circumstances he could not or could exercise without
restriction".
In Shanks v. Shanksthis definition was
accepted and in Ford v. Fordall the definitions considered by me were
referredto among others and the analysis of Dr. Allen was approved.
It must therefore follow that where the
source of rights is birth and the domestic relationship leads to rights but not
to proprietorship of property the rights can only be said to arise from status.
A coparcener in a Hindu coparcenery cannot be admitted by contract. The right,
is obtained by birth. Even an infant "en ventre sa mere" is in Hindu
Law relating to a coparcenery born for many purposes. His rights are thus determined
by status. In early law& there is always an emphasis on rights following on
birth and writers of Jurisprudence have commented that in such societies there
is always difficulty in rising above' birth.
No doubt the words status and estate had a
common origin but in course of time they have acquired different legal
meanings. See Pollock and Maitland History of English Law, Vol. II, 1st Edn.
(1) (1906) 4 C.L.R. 563, 566. (2) (1942) 65
C.L.R. 334.
(3) (1947) 73 C.L.R. 524, 176 pp. IO and 78.
In the law of Hindu Coparcenery, there is no ownership of property apart from
the coparcenery and the rights in the property are such as are determined by
status.
Where domestic relationship determines the
status and the status, the rights all disputes and claims can only be based on
status and not on proprietorship. Inheritance thus depends on domestic status,
and in the same way survivorship the right to share partition and maintenance
are the aspects of domestic status. In this sense, a coparcenery is nothing
more than a kind of corporation not arising from contract but status and any
matter relating to coparcenery is first a question of status and only when the
status is established that a source of material rights comes into being.
If the matter had rested with the application
of modern theories of Private International Law I would have been tempted to
characterise the decision of the Mysore High Court as partly in rem and partly
in personam, that dealing with the question of joint or separate acquisition of
the Kolar Gold Fields business by Ramalingam as involving decision arising out
of status and thus in rem. Such composite actions are not unknown. Story has
adverted to them in a passage I have cited earlier and the Court of Appeal in
England in In re Trepca Mines Ltd. (1) found the action to be partly in rem and
partly in personam. The decision of the Mysore High Court was one on status and
savoured of a decision in rem. Limited as the Judicial approach is by the
existence of a. 41 of the Indian Evidence Act and the Judicial Committee in
Appa Trimback's case (2), I venture to express this opinion. Private
International Law today is developing by reciprocity and more and more kinds of
judgments are being received as conclusive, which twenty years ago were not
consi(1) (1960) 1. W. L. R. 1273. (2) A.I.R. 1941 P.C. 524.
177 dered as conclusive. If we do not give
faith to foreign judgments on the subject of adoption family status and
questions arising from such domestic relations, other Countries will also
follow suit about our judgments. It will be quite amazing if a judgment on
adoption in Ceylon (for example) is not considered binding in this Country and
vice versa. Adoption is not one of the subjects mentioned in s. 41, and if
treated as a decision on status and thus in rem will be conclusive between the
same parties and their privies under s. 13. The same must be said of judgments
on joint family status or the position of any particular member vis a vis the
family. To treat judgments in this manner accords with the modern notions of
Conflict of Laws.
Even if the subject be viewed from the angle
of a judgment in personam, it is obvious that "the matter" decided be
the Mysore High Court was whether Ramalingam was a member of a coparcenory and
acquired the Gold Kolar Fields business and other properties as such member.
That was the res decided, the destination of the properties being ancillary to
this main decision.
It was argued on the basis of ruling of the
Judicial Committee in Brijlal Ramjidas v. Govindram Gordhandas Seksaria(1) that
the words "judgment" in. s. 13 of the Code means "an
adjudication by the foreign, Court upon the matter before it" and not the
reasons for judgment. The-words of the section are "directly adjudicated
thereby." What was meant by the Privy Council was that the adjudicative
part of the judgment is conclusive and this part 'of the Mysore High Court
judgment is that Ramalingam was not carrying on the, Kolar Gold Fields business
as a coparcener but independently. If was not the adjudicative part there was
very (1) (1947) L. R. 74 I.A. 203, 210.
178 little else. The language of a. 13 speaks
not of the judgment but "'matter thereby directly adjudicated upon"
and the word ',,any" shows that all the adjudicative parts of the judgment
are equally conclusive in the sense in which Foote and Rattigan and other have
described them.
It was argued that the subject-matter of the
suit in Madras was immovable property over which the Mysore Court did not and
could not exercise jurisdiction. Reference was made to Decey's Conflict of Laws
and Castrique v. Imrie (1) to show that only the Courts of the Country where
immovable property is situated have jurisdiction and the lexsitus is
applicable. In Cartrique v. Imrie (1) the question really was whether the sale
of chattal (a ship) in satisfaction of a claim against the chattal itself was
binding on certain parties who had not submitted to the jurisdiction of the
French Courts and it was held that a judgment ordering such sale was a judgment
in rem if the chattal at that time was in the territory of the foreign State.
The ship in question had taken provision on board for which payment was
demanded and the action in the French Tribunals was taken against the Commander
Benson who was required to pay 'par privilege sur ce Navire. Of course the
owner Clause or Castrique the purchaser did not appear before the French
Tribunal but jurisdiction of the French Tribunals was founded on the presence
of the ship in French waters at Havre. Such question can hardly arise in
respect of immovable property because the courts of the Country where
immovables are situated can alone have the jurisdiction and no foreign Court
can decide the dispute or enforce it effectively.
Apart from the fact that even in England the
distinction between real and personal property has not been adhered to when the
English Courts (1) (1870) L.R. 4 H.L. 414.
179 specify immovable property for purposes
of Private International Law it is obvious that the distinction does not come
within s. 13 of the Code. If the Mysore High Court purported to decide about
immovable property in Madras or the law applicable to the family was different
I would have at once agreed with the argument. But the argument confuses the
jurisdiction and the law, on the one hand with "the matter decided"
on the other. The rule in British South Africa Company v. Companhia De
Mocambique (1) that court can entertain actions in respect of immovables which
are situated in a foreign country does not prevent in India under a. 13, the
conclusiveness inter partes of a judgment as to any matter adjudicated thereby.
That is quite a different affair if the adjudication is about proprietorship
based on status. The rule in the above case would have made the decree of the
Mysore High Court a nullity if the Mysore High Court had decided as issue about
immovable property in Madras. But the Mysore High Court did not decide any such
question. It decided a question of the status of Ramalingam and the ownership
of the Kolar Gold Fields business with complete jurisdiction between the same
parties litigating under the same title. That decision must be viewed in the
Madras suit as a conclusive adjudication. The Madras Court could not decide the
question of the ownership of the Kolar Gold Fields business de novo and as ancillary
to that decision determine the right to the property in Madras. Of course the
Madras Court was free to try other questions and consider other defenses such
as why the judgment of Mysore High Court was not applicable to the properties
before it ;
but the fundamental question of ownership of
the Kolar Gold Fields business, it could not try over again. In my opinion,
even the evidence led (1) [1893] A.C. 602.
180 in the Madras suit to reopen that
question was inadmissible though evidence to prove bias interest etc. on the
part of the learned Judges was properly allowed to be led. It was not open to
theMadras High Court, to try the question of Ramalingam's status de novo and
that part of the decision must be treated as without jurisdiction. I am therefore
not entering into that question nor considering the evidence.
Before I consider the question of the shares
of the Indian Sugar and Refineries Ltd., Madras I wish to refer to a case of
the Privy Council on which great reliance has been placed. That case is
reported as Maqbul Fatima v. Amir Hasan(1). The judgment that is printed in the
All India Reporter is of the Allahabad High Court which the head note says was
"confirmed by" the Privy Council. I shall content myself with citing
the headnote :
"A obtained judgment in the sub Court
Bareilly (British Indian Court) declaring his title to the properties of the
deceased situate within the jurisdiction of that Court. Subsequently B
instituted a suit against A in Rampur, a Native State for recovery of possession
of the properties of the deceased situate within the Native State. Thereupon A
filed the 'present suit for a declaration that the Judgment of the Bareilly
Court would operate as res judicata in the Rampur Court and for a perpetual
injunction restraining B from proceeding with the suit therein. The High X X
Court held that as the Court in British India were not competent to try suits
with respect to property situate in Native State the judgment of the Bareilly
Court would not operate as res judicata.
(1) A.I.R. 1916 P.C. 136.
181 It being urged that under s. 13 Civil
P.C. the rule contained in which was alleged to apply in Rampur the Judgment of
the Bareilly Court was conclusive between the parties the High Court hold that
it was only in proceedings on foreign Judgment that the question of the effect
of foreign Judgment could properly arise." The second reason given by the
High Court was quite sufficient andvalid. There was no need to decide the first
point which was for the Rampur Courts to decide. The High Court however, went
further and decided whether their judgment would be res judicata under s. 13 of
the Code of Civil Procedure (as applied in Rampur which the High Court presumed
was the same as in British India) in Rampur State and came to the conclusion
that the words"directly adjudicated thereby" meant the actual
decretal part of their judgment. This question was not for the High Court to
decide but for the Rampur Court.
I may men, ion here this suit which was filed
for an injunction was one of a kind resorted to in the seventeenth Century of
which the Reports do not exist apart from Lord Nottingham's manuscripts to be
found in 3 Swanston 603607(46) which seems to have long ago fallen in
desuetude.
No wonder the Privy Council judgment was :
"Their Lordships do not see their way to
reverse the decision appealed from and will humbly advise His Majesty to
dismiss the appeal. As the respondents have not appeared there will-be no order
is to costs." it only remains to consider the argument in relation to the
shares of the Indian Sugars and Re. fineries Ltd. It was contended that the,
shares must 182 be deemed to be situated where they could be effectively dealt
with and that was Madras, where the Head Office of the Company was situated.
Learned counsel relied upon some English cases in support of his contention. It
is not necessary to refer to those cases. The suits of shares between the
Company and the shareholders is undoubtedly in the Country where the business
is situated. But in a dispute between rival claimants both within the
jurisdiction of a Court over shares the Court has jurisdiction over the parties
and the share scripts which are before the Court.
The Mysore Court was in this position.
Between the rival claimants the Mysore High Court could order the share scrips
to be handed over to the successful party and if necessary could order transfer
of the shares between them and enforce that order by the coercive process of
the law. It would be a different matter if the Company refused to, register the
transfer and a different question might then have arisen;
but we are told that the Company has obeyed
the decision and accepted the executors as the shareholders. The judgment of
the Mysore Court on the ownership of the shares is ancillary to the main
decision. It is therefore not necessary for me to consider the argument of Mr.
Desai that jurisdiction attaches on the principle of effectiveness propounded
by Dicey, but which has been criticised by the present editors of his book and
by Cheshire. In my opinion, this controversy does not arise in this case, which
must be decided on the plain words of s. 13 of the Code of Civil Procedure.
For the reasons above given I would dismiss
the appeal of the sons of Ramalingam (Civil Appeal No. 277 of 1958) and allow
that of the executors (Civil Appeal No 278 of 1958), dismissing C. S. No. 214
of 1944 with costs throughout. In the light of what I have decided I would have
considered the 183 remaining appeals and passed appropriate orders therein; but
this is unnecessary as my brethren take a different view in the two main
appeals.
By COURT: In view of the majority Judgment,
there will be decree in terms as stated in the Judgment of the majority.
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