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
