TMI Blog1962 (5) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ome 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 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 titl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edappa, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of Ramaswami, J., for trial was heard together with 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 joint- family. 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 Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res 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 immovables 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([1930] A.C. 161) and Brasssard v. Smith ([1925] A.C. 372). The situs of the shares of the India Sugars Refineries Ltd. may therefore be properly regarded as without the terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ([1936] I.L.R. 63 Cal. 1083), Panchapakesa v. Hussim (A.I.R. 1234 Mad. 145) and Pemberton v. Highes ([1899] Cb. 781). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 busin- esses 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, 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 ((1927) P. D. 211) 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 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ([1894] L. R. 21 I. R. 171) 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 ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 out side 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 dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 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 ((1930) I L.R. 58 Cal. 549), Umar Baksh v. Commissioner of Income Tax, Punjab ()(1931) I.L.R. 12 Lah. 725) and Jehangir v. Secretary of State ((1903) 6 Bom. L.R. 131, 206). 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 L.R. Mys. 118) 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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 relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso in British India. In the Mailam charities the performance was to be in British India and Pondicherry (French 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 respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, 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 ........................... 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. What- ever may be the content of the rule of private international law relating to Natural justice in England or elsewhere (and we will for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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. We may now deal with the diverse objections raised against the two Judges-Mr. Medappa and Mr. Balakrishanaiya- alleging 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 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... araj 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 affi- davit 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. Medapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jagopalan, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruth 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 mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 adjou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 permis- sion 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 argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amaiya 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 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 dealin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Jubile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 Shanmugam severed his interest therein. The case of the executors, therefore was that the business in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiffs 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 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 189 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 10-12- 1904. 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 showin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 for- the 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 Vydi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eda 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 joint- family 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 joint- family 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 plead- ing 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 Balakrishn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly have in that business, and in the earnings made by 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 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddels 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Counci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 My ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 competen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional 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 ho 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 view 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, but the practice of the Mysore High Court was authoritatively established by a Full Bench decision of that court in Nanjamma v. Lingappa. 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. 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 Atto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egards 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 it s 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 properties, that Ramalingam had no right to dispose of the same b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 pro- ceedings 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 sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts in the English speaking countries and it was quoted with approval recently by the Privy Council in Ingenohl v. Wingh On Co. No distinction in approach to the question of competence 'is made between cases in rem and in personam. In Pemberton v. Hughes. 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 case- which 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. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty. 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. 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; (4) he has voluntarily appeared ; (5) he has contracted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erations 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 subject- matter 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Countries, the judgment has no value. In Tallack v. Tallack 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 conditi- ons 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 definitions 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 proof- that any legal character which it confers, accrued at the time when such judgment, order or decree came int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 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 evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 at p. 891 and Salvesan v. Administrator of Austrian Property. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 considered 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 judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding 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. 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 and- valid. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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