9911796707
TMI Blog1962 (5) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... block of shares. For some years before his death Ramalingam had taken to excessive drinking, and was subject to frequent coronary attacks. He became peevish and easily excitable and his relations with his wife and children were strained. Ramalingam felt great disappointment in his eldest son Vishwanatha who borrowed loans from money-lenders at exorbitant rates of interest, attempted to evade payment of customs duty, failsified accounts and otherwise exhibited utter lack of business of capacity."' Ramalingam had developed a violent antipathy towards a sadhu named Ramaling swami, but his wife Gajambal and his children persisted in attending upon the sadhu and visited him frequently. This led to frequent quarrels between Ramalingam and his wife and children. Ramalingam stopped the allowance for household expenses, and cancelled the power which he had given to his son Vishwanath to operate on the joint Bank account. Shortly thereafter, he left the family house. On June 2, 1942, his wife Gajambal presented a petition before the District Judge, Civil Station Banglore, for an order against Eamalingam for inquisition under the Indian Lunacy Act. On that application evidence was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was lodged. But by order dated December 12, 1949, the Judicial Committee declined to consider the appeal on the merits, for, in the view of the Board, since the Civil & Military Station of Bangalore was before the bearing of the appeal retroceded to H. H, the Maharaja of .Mysore and was within the jurisdiction of his State at the date of the hearing of the appeal. His Majesty-in-Council could not effectively exercise jurisdiction which was expressly surrendered and renounced. The order passed by the District Court granting probate accordingly became final and the validity of the will in so far as it dealt with property in the Civil & Military Station, Bangalore, is not liable to be challenged on the ground of want of due execution. Applications for probate of the will limited to property within the jurisdiction of the District Court, Bangalore and the Madras High Court were also filed and orders granting probate subject to the result of the proceedings before the Privy Council were made. During the pendency of the probate proceeds., the sons of Ramalingam-who will hereinafter be collectively referred to as the plaintiffs-instituted three actions against the executors and other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im for possession of immovables situate within the jurisdiction of the Madras High Court but not the relief relating to the shares was deleted. The plea that the claim for possession of moveables outside the State of Mysore was not maintainable was apparently not persisted in before the District Court. The District Judge, Bangalore, held that the property devised by the will dated September 10, 1942, was of the jointfamily of Ramalingam and his sons and the will was on that account inoperative. He accordingly decreed the suit for possession of the properties set out in the schedules and within his jurisdiction, and directed that a preliminary decree be drawn up for account of the management of the properties since the death of Ramalingam by the executors. Appeals preferred by the executors against the decrees of the District Judge in the two suits to the High Court of Mysore were heard by Paramshivayya, C.J., and Balakrishanaiya, J. After the appeals were heard for some time, the hearing was adjourned for six weeks to enable the parties to negotiate a compromise. The plaintiff,,; say that it was agreed between them and the executors that the widow and the children of Ramalingam sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent, the judgment was not conclusive because Medappa, C.J., and Balakrishanayia, J., showed bias before and during the hearing of the appeals they were incompetent to sit in the Full Bench, and "their judgment was coram non judice". On "the preliminary issue of res judicata" Rajagopalan, J., held that the Full Bench judgment of the Mysore High Court did not bar the hearing of the suit in regard to the immovable properties in Madras claimed by the plaintiffs for two resons (1) that the title to those properties was not, in fact, adjudicated upon by the Mysore Court, and (2) that the lex situs governed the immovable properties in Madras. The learned Judge also indicated the scope of the enquiry on the plea of conclusiveness of the foreign judgment raised by the executors. He observed that the Madras High Court not investigate the allegations made against the Judges of the Mysore High Court in the conduct of the appeal itself, or of the property or correctness of their decisions in the appeals or in the legal proceedings connected therewith, but two questions fell outside the purview of that rule; (a) whether Mr. Medappa had been and was using a motor car belongin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit, except as to the four items of immoveable property in Madras. The suit was thereafter allotted to the file of Ramaswami, J., for trial was heard together with 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Mysore suits. It is therefore necessary for the members of Ramalingam's family to get rid of the decision of the Mysore High Court before they can have any chance of obtaining the movable properties of Ramalingam situate in the State." The High Court after an elaborate review of the evidence held that the estate which Ramalingam sought to dispose of by his will was joint-family estate, and he was on that account incompetent to dispose of the same, and the plaintiffs were entitled to the immovables in Madras, but as to movables the judgement of the Mysore High Court was conclusive there being no reliable evidence to establish the plea of "coram non judice". The High Court accordingly modified the decree of the trial Court. They confirmed the decree in so far as it related to immovables in Madras and dismissed it as to the rest. They further declared that the sale proceeds of a property called "Palmgrove"--which was execluded from the Schedule to the plaint in the Bangalore suit-,,constituted the assets of the said joint family" and on that footing gave certain directions. Against the judgment of the High Court modifying the decree of Mr. Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding in which the judgment was pronounced was opposed to natural justice. The dispute in the appeal filed by the plaintiffs primarily relates to the shares of the India Sugars & Refineries Ltd, and movables in Madras. The judgment of the Mysore Court qua the immovables in Mysore has become final and is not and cannot be challenged in this Court. The Mysore High Court was competent to adjudicate upon title to 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rem 'that Court was by the rules of private international law universally recognised, competent to adjudicate upon title only to property regarding which it could render an effective judgment, and as the plaintiffs claimed title to and possession of shares of the India Sugars & Refineries Ltd. and other movables outside the territory of Mysore the judgment of the Mysore High Court that the shares and the movable property were the self-acquisition of Ramalingam was not binding upon the parties, because the Mysore Court was not a Court of competent jurisdiction within the meaning of s. 13, Civil Procedure Code,1908. A judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction; and competence contemplated by s. 13 of the Code of Civil Procedure is in an international sense, and not merely by the law of foreign State in which the Court delivering judgment functions Chormal Balchand v. Kasturhand ([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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts. As observed by Cheshire in his "Private International Law", Sixth Edition at page 109, "In Roman law an action in rem was one brought in order to vendicate a jus in rem, i.e., a right such as ownership available against all persons, but the only action in rem known to English law is that which lies in an Admiralty court against a particular res, namely, a "hip or some other res, such as cargo,associated with the ship." Dealing with judgment in rem and judgments in personam, Cheshire observes at page 653, It (judgment in rem) has been defined as a judgment of a court of competent jurisdiction determining the status of a person or thing (as distinct from the particular interest in it of a party to the litigation); and such a judgment is conclusive evidence for and against all persons whether parties, privies or strangers of the matter actually decided .......... A judgment in rem settles the destiny of the res itself land binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence' ; a judgment in personam, although it may concern a res, merely determines the rights of the litigants i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery of movable property under distraint or attachment. But in their application they extend to all per sons whether domiciled or not within jurisdiction. Section 20 of the Code extends the jurisdiction of the courts to persons or transactions beyond the territorial limits of the courts. Such jurisdiction in personam which transcends territorial limits is conferred on the courts by the law making authority of many States. In England, by Order XI, r. 1 of the Rules of the Supreme Court, discretionary jurisdiction in personam is exercisable by the courts by effecting service outside the jurisdiction of a writ of summons or notice of a writ of summons against an absent defendant in the classes set out therein. A court of a foreign country has jurisdiction to deliver a judgment in rem which may be enforced or recognised in an Indian Court, provided that the subject matter of the action is property whether movable or immovable within the foreign country. It is also well settled that a court of a foreign country has no jurisdiction to deliver a judgment capable of enforcement or recognition in another country in any proceeding the subject matter of which is title to immovable propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dants were in wrongful possession of the said properties and businesses and the plaintiffs were en, titled to recover the same from the executor a as the surviving members of the joint family consisting of themselves and their deceased father Ramalingam. By paragraph 22 they claimed among other reliefs, the following: (a) that the executors be ordered to deliver possession of all the properties and 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 defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "The courts of any country are considered by English law to have jurisdiction over (i. e., to be able to adjudicate upon) any matter with regard to which they can give an effective judgment, and are considered by English law not to have jurisdiction over (i. e., not to be able to adjudicate upon) any matter with regard to which they cannot give an effective judgment." This principle received apparent approval in a dictum of Lord Merrivale, President of the Matrimonial Court in Tallack v. Tallack ((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 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Mysore was not conclusive between the parties in the Madras suit. In Messa v. Messa (I. L. R. (1938) Bom. 529) the judgment of the Alexandria Supreme Court relating to the validity of a will executed by one Bunin Menahim Messa was held not binding as a judgment in rem upon the parties to a litigation in Aden in which the defendants claimed to be executors under the will of the testator. The testator was not domiciled within the territory over which the Supreme Court of Alexandria exercised jurisdiction, and therefore the judgment though in rem was not held binding upon the executors. That case has no bearing on the contention raised by the plaintiffs. Nor is the opinion of the Judicial Committee in Sardar Gurdayal Singh v. Rajah of Faridkote ([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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e then commenced an action in the Court of Common Pleas in conversion against the purchaser pleading that the sale in France was void. The House of Lord 3 held that there was a judgment in rem in the French Court and the title of the purchaser to the ship could not be reagitated in the courts in England. The proceeding in the French Court was manifestly one in rem, for it was to enforce a maritime lien, which by the French law was a proceeding in rem, and as the ship was in the French territorial waters, it must in the English Court be so treated and held. These oases do not support the plea that the judgment of a foreign court qua movables 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne by appellants (defendants 1 to 3) from the estate of Ramalingam." Thereafter, Balakrishnaiya, J., referred the case to a Full Bench under s. 15(3) of the Mysore High Court Regulation of 1884, and signed his "judgment". The relevant, statutory provisions then in operation relating to the procedure to be followed in the event of a difference between Judges constituting a Bench were these: Section 98 of the Mysore Civil Procedure Code provided: (1) Where an appeal is heard by a Bench of two or more Judges the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges. (2) Where there is no such majority which concurs in 'a Judgment varying or reversing the decree appealed from such decree shall be confirmed. Section 15 (3) of the Mysore, High Court Regulation, 1884, as amended by Act XII of 1930, provided: "The decision of the majority of Judges comprising any Full Bench of the High Court or other Bench of the said Court consisting of not less than three Judges shall be the decision of the Court. When a Bench of the High Court consists of only two Judges and there is a difference of opinion between s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in opinion have delivered judgments on the appeal as judgments of the Court without any reservation, they are not competent to refer the appeal to other Judges of the Court under s. 575 of the Civil Pro- cedure Code of 1882)." In that case, a reference was made on a difference of opinion between two Judges, but not a question of law. By a. 575(2), Civil Procedure Code, 1882, difference on a question of law being a condition of reference, the reference was manifestly incompetent; it was so pointed out by Brodhust, J., who was one of the Judges composing the original Bench of Judges who differed. There is, however, no such restriction in s. 15(3) of the Mysore High Court Regulation, 1884. Again, the principle of Lal Singh's case as broadly enunciated by the majority of the Court has not been approved in man, later cases in other High Courts; for instance, Karali Charan Sarma v. Apurba Krishna Bajpeyi ((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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in the schedule on the ground that those and other properties belonged to the joint family of which they and their father Ramalingam Mudaliar were members, and to which they were entitled by survivorship on the death of Ramalingam. In Schedule 'B' to the plaint the first item was the business at Kolar Gold Fields. The claim was decreed by the trial court but the High Court reversed the decree and dismissed the suit. The Attorney-General submits that the judgment of the Mysore High Court was conclusive between the parties in respect of all matters adjudicated thereby and the Madras High Court in considering the claim of the plaintiffs in the suit before it was debarred from investigating whether the Kolar Gold Fields business was the separate property of Ramalingam. The issue as to the ownership of the Kolar Gold Fields business being directly adjudicated upon by the Mysore High Court, which was competent in an international sense as well as according to the municipal law of Mysore in that behalf, it was submitted, that adjudication was conclusive between the parties in the Madras suit. Reliance in support of this submission was placed upon the definition of foreign judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Compandia de Mocambique v. British, South C. De Souza v. Samb ([1891] 2 Q.B. 358) Wright, J., observed at p. 366: "The proper conclusion appears to be that, speaking general, subject to qualifications depending on personal obligation, it is a general principal of jurisdiction that title to land is to be directly determined, not merely according to the law of the country, where the land is situate, but by the Court, of that country, and this conclusion is in accordance with the rule ordinarily adopted by the jurisprudence of other countries". Title to immovable property may therefore be determined directly or indirectly only by the law of the State, and by the courts of the State in which it is situate. A decision of a foreign Court directly relating to title to immovable property within its jurisdiction will of course be regarded between the same parties as conclusive by the Courts in India: but that decision is ineffectual in the adjudication of claims to immovables without the jurisdiction of that foreign Court, even if the foundation of title in both the jurisdictions is alleged to be identical. A foreign Court being incompetent to try a suit relating to immovable p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be expressly limited to the extent of the jurisdiction. In Chockalinga v. Doraiswamy((1927) I.L.R. 51 Mad. 720) a dispute arose between two persons each of whom claimed the right to trusteeship of three religious endowments known as Chidambaram, Mailam and Alapakkam charities. Of the Chidambaram charities all the lands were in British Tndia and the charities were to be carried out also in British India. In the Mailam charities the performance was to be in British India and Pondicherry (French 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 defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Henry Crispin who was of a particular station in society (a plebian and not noble), and was domiciled in Portugal was held binding between the parties in an administration action in the Court of Probate in England between the same parties relating to Government of England Stock. The Court in that case was not called upon to decide any question of title to immoveables in England. The rule of conclusiveness of a foreign judgment as enacted in s. 13 is somewhat different in its operation from the rule of res judicata. Undoubtedly both the rules are founded upon the Principle of sanctity of judgments competently rendered. But the rule of res judicata applies to all matters 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate upon any question of personal status of the parties to the dispute before it. We may now consider the plea that "the judgment of the Mysore High Court was coram non judice." It was urged that the Judges of the Mysore Court who constituted the Full Bench, were biased against the plaintiffs, that they were interested in the dispute before them and that they denied opportunity to the, plaintiffs to defend the appeals. It was urged by the plaintiffs that Mr. Medappa who presided over the Full Bench had tried the probate proceeding in which the will of Ramalingam was upheld and in the judgment in that case bad made severe strictures against ",the family of the plaintiffs", and the witnesses appearing in support of the caveators' case, that Mr. Medappa was a close friend 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context the expression is confined to something-glaringly defective in the procedural rules of the foreign law. As Denman, C. J., said in an early case: "That injustice has been done is never presumed, unless we see in the clearest light that the foreign law, or at least some part of the proceedings of the foreign court, are repugnant to natural justice: and this has often been made the subject of inquiry in our courts." In other words, what the courts are vigilant to watch is that the defendant has not been deprived of an opportunity to present his sides of the case. The wholesome maxim audi alteram partem is deemed to be of universal, not merely of domestic, application. The problem, in fact, has been narrowed' down to two cases. The first is that of assumed jurisdiction over absent defendants a ........................... 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 mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than it is merely to say that it is wrong. It is not enough, therefore, to say that the result works injustice in the particular case, because a wrong decision always does." A judgment will not be conclusive, however, if the proceeding in which it was obtained is opposed to natural justice. The words of the statute make it clear that to exclude a judgment under el. (d) from the rule of conclusiveness the procedure must be opposed to natural justice. A judgment which is the result of bias or want of impartiality on the part of a Judge will be regarded as a nullity and the "trial coram non judice" (Vassilades v. Vassilades and Manik Lal v.Dr.Prem chand. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Mr. Medappa had sent for Raju, counsel for the plaintiffs and bad attempted to dissuade him from taking Up the case of the plaintiffs and appearing for the plaintiffs' family. In appeal against the order of Rajagopalan, J., the High Court of Madras held that the enquiry into the use of the "Mercedes car" belonging to the estate by Mr. Medappa was not permissible. The learned Judges observed: "It is not as if the plaintiffs have alleged that Medappa, C.J. had claimed the Mercedes car to be his own and was therefore, not a person competent to decide on the title to the properties under a. 13 (a). It was merely alleged that he used the car for himself and his wife and children. It was not even stated whether he had used the oar free or for hire. There was no claim by the plaintiffs or others on Medappa, C.J., for any dues in respect, of the alleged use of the car. The car itself was alleged to have been used in 1943-45 when Medappa, C. J., was District Judge, Bangalore Cantonment, and was hearing the probate application. It was sold away in 1945 or 1946, long before Medappa, C. J., sat on this Full Bench. It is too much to say that, from these facts C. J., woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m from appearing for the plaintiffs in the District Court of Bangalore. He further stated that on July 25, 1949, during the course of the hearing of the appeals before the Full Bench Raju had stated in open Court that "he was not competent to take up the case on account of the dissuasion by the Chief Justice" and that "Chief Justice Medappa had 'sent for him and dissuaded him from appearing on behalf of Ramalinga's family. Thereupon Chief Justice Medappa felt upset and refused to hear" Raju. He also deposed that Mr. Puttaraj Urs (who was for some time a Judge of the Mysore High Court had told him that Raju had told Urs that Medappa had asked him Raju not to appear for the "plaintiffs" "family" and had sent for him and dissuaded him from appearing for Ramalinga's family. Elaborate argument were advanced before us as to the truth of the statements made by Vishwanatha and Puttaraj Urs. It was urged that the statement about the dissuasion of Raju was made for the first time in the Madras High Court on April 7, 1950, and that it was not made by Vishwanath in the Mysore Court or in the petitions to H. H. The Maharaja of Mysore for const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may, however, state that we are unable to accede to the contention raised on behalf of the executors that the letter dated August 21, 1952, furnishes evidence that the allegation regarding dissuasion of Raju and about the use of the motor car of the estate was an after-thouht and made by Vishwanatha at the instance of his advocate. This letter was written when Suit No. 214 of 1944 was pending in the High Court at Madras. In that suit the judgment of the Mysore High Court was challenged on the ground that the Judges who heard the appeals were interested and biassed, and liberty was reserved by Rajagopalan, J., to the plaintiffs to lead evidence on those two matters only. We are unable to believe that of his own accord Vishwanatha would address a letter to the executor Wajid and substantially destroy his case for setting aside the judgment of the Mysore High Court. Vishwanatha has stated in his evidence that he prepared the letter at the instance of Wajid to "prove his bona fides with Medappa." He stated that the letter was written at Bangalore, in the office of one Subramaniam brother of the executor Narayanaswami in the presence of Wajid about 2 or 3 months prior to Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge tried the earlier suit in which the enquiry was strictly restricted to the validity of the *ill and be subsequently was a member of the Full Bench of the Mysore High Court which decided the question of title set up by the plaintiffs. The plea that Mr. Medappa and Wajid were close friends does not appear to have been denied by the executors. In his affidavit filed in June, 1950, the first plaintiff Vishwanath alleged that Mr. Medappa was a friend of the executors, and that Mr. Medappa was the Chief Steward of the Trurf Club and the first executor Wajid was the Secretary and that they were "intimate and bosom friends," Wajid did not deny these allegations. He merely stated that he "was once the Hony. Secretary of the Bangalore Race Club for about three months on account of the removal of the permanent secretary. As a Stop-gap arrangement, (he) being a Committee Member was appointed to act as secretary for this short period. Mr. Justice P. Medappa was appointed by His Highness the Maharaja as a steward of the club", and submitted that "it was insulting and improper to suggest that a Judge was biassed because he came into social contact with other gentle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the conduct of Mr. Balakrishanaiya at the hearing of the appeal sitting with Kandaswami Pillai, J., supports the plea that he was biassed. The contention that after the plaintiffs had informed the Court Mr. Balakrishanaiya was to be examined as a witness in the compromise petition, the latter should not have set in the Fall Bench has, in our judgment, no substance. The application for recording the compromise was disposed of on March 15, 1949, and the Court without enquiring into the truth or otherwise of the compromise set up, declined to permit such a compromise to be made a decree of the Court of the sole ground that it was "contrary to the intention of the testator." There could, thereafter, be no scope for any enquiry into the truth of the plea set up by the plaintiffs about the compromise between them and the executors. It would have been more consonant with justice if the application for recording a compromise was posted for hearing before a Bench of which Mr. Balakrishanaiya was not a member especially when the plaintiffs formally ;objected to him, but from the circumstance that of the bench as constituted he was a member, an inference of bias cannot be raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Kirpa Shukul and Kallu Mal v. Brown, and also to the statutory provision of O.XLVII of the Civil Procedure Code of 1908 permitting review before the Judge who decides a suit or appeal. Reliance was also placed upon R. v. Lovegrove in which it was held that on an application or appeal to the Court of Criminal Appeal (in England) there is a general rule no object on to the trial Judge sitting as a member of the Court to hear the application or appeal. It may appear, that in the absence of a statutory provision the fact that a judge sits in appeal or in an application against a judgment after he has decided the case would not by itself render the judgment of the Court invalid. In a strictly technical sense therefore it is true to say that a Judge is not incompetent to sit in an appeal or application against his own judgment. But the courts are not merely concerned to deal with cases in a rigid spirit of legalism. It is of the essence of a judicial trial that the atmosphere in which it is hold must be of calm detachment and dispassionate and unbiassed application of the mind. It may be pertinent to observe that since the Federal Court was constituted and after this Court was invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; case that the dispute was settled, but that is denied by the executors. On November 22, 1948, according to the plaintiffs, the terms of compromise were to be filed in Court, but on that date one of the Judges-Mr. Paramshivayya did not sit in Court because he was "compulsorily retired". Mr Medappa who was appointed Acting Chief Justice was admittedly a friend of Wajid, the principal executor under the will of Ramalingam, The plaintiffs say that Mr. Medappa was biassed against the members of their. family and they were unwilling to have the appeal heard by Judges who had dealt with the case or were close friends of one of the parties. On January 5, 1949, the plaintiffs submitted an application requesting the Court to move the Government of Mysore to 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 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Sri L.S. Raju to give the benefit of his arguments." Vishwanath in the same affidavit also stated that Mr. Balakrishanaiya had been "openly hostile" to the plaintiffs. On this part of the case, by the order ,of Rajagopalan, J., no evidence was permitted to be given. The record, therefore, contains merely an assertion made by the plaintiffs and denial by the executors. After the judgment was delivered by the Court on April 2, 1949, Judges having differed the case was referred to a larger Bench. On June 23, 1949, the Registrar of the High Court notified that the appeals will be posted for hearing in the last week of July. It appears that on July 4, 1949, the plaintiffs submitted an application for adjournment stating that Sir Alladi Krishnaswami Ayyar, a leading member of the Madras Bar, who had argued the appeals at the earlier hearing and who was engaged to argue the appeals was unable to attend the Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 950 filed in the Madras High Court by the executors in reply to the affidavit dated April 7, 1920, there was no denial of the allegations relating to what transpired in Court on July 25, 1949. The evidence of Mr. Balakrishanaiya-though the replies given are somewhat vague-gives some support to the. story of what is described as "a stormy session" on July 25, 1949. Mr. Balakrishanaiya was asked by the plaintiffs whether he remembered that on the first day, i e., July 25, 1949, it was a 'very stormy .session". The answer given was that he did "not understand". To the question whether "Medappa threatened the respondent to tell him the name of the advocate who drafted the affidavit", be answered "There was a question whether it was drafted by the party or with the aid of Counsel". The witness was then asked a composite question-,'Did Medappa threaten him to put him in Jail?. The storm means the storm of the session-the other colleagues were so distracted that they could not hear what was passing between Medappa and others?" No reply to first part of the question was apparently given. The answer recorded is, "So far we were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been done, by an apparently biassed tribunal, the decision may be declared 'coram non judice" whether the decision is of the tribunal subordinate to the appellate jurisdiction of the court or of a foreign tribunal. But only facts proved in this case in support of the plea of bias are that Mr. Medappa was a close friend of the executor Syed Abdul Wajid, and Mr. Balakrishanaiya bad expressed his view on the merits of the plaintiffs case. It would have been consistent with the dignity of the Court if Mr. Medappa and Mr. Bala- krishanaiya bad not sat in the Full Bench. But it cannot be forgotten that unless the Government of Mysore agreed to constitute an ad hoc Bench, there were no Judges in the Court who could form a Full Bench to hear the appeals. Mr. Puttraj Urs bad recorded evidence in the suits out of which the appeals arose: Mr. Malappa was also concerned with some proceedings connected with the litigation and Mr. enkataramaiya the only remaining Judge bad appeared as an Advocate for the plaintiffs. Mr. K. Kandaswami Pillai bad retired. We may certainly not approve if we are called upon to do so-of the incidents in Court at and before the hearing. But these inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Ramalingam and his sons. If the estate belonged to the joint-family, the will was undoubtedly inoperative. Certain facts which have a bearing on this question and which are mainly undisputed may be set out. Vydialingam was an employee in the Mysore Subordinate Judicial service and drew a monthly salary rising from Rs. 75/- to Rs. 125/-. He worked fir,.it as a translator in the Mysore Chief Court. In 1898 he was appointed Sheristedar of the District Court at Shimoga and was later transferred to Bangalore. One Loganathan Mudaliar, a building contractor carrying on business at Kolar Gold Fields, was a close friend of Vydialingam. In 1896, Loganathan fell ill and after his illness took a serious turn in, 1898, he was unable to attend his business. Loganathan executed a will appointing Vydialingam and others as guardians of his children and also executors under his will, and died in 1900. Vydialingam was maintaining an account with the Cavalry Road Bank at Kolar Gold Fields since 1891. By 1895 substantial amounts were credited in that account of which the source could not be the meagre salary of Vydialingam. In the years 1896 and 1897, diverse amounts aggregating to the more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter Devraj and Ramalingam. After the death Vydialingam, according to the plaintiffs, this busi- ness was carried on by the three brothers till the year 1910 at different places. Devraj was attending to a Iran oh of the business at Gadag: Ramalingam attended to the business at Kolar Gold Field,,; and also at Gadag. The plaintiffs claim that the business which was carried on by Ramalingam since the year 1916, was directly connected with the business which was inherited from Vydialingam by his sons and being in his hands ancestral business, the acquisitions. out of the same were impressed with the character of joint-family property. They also claimed that Ramalingam disposed of two ancestral houses which he received and used the sale proceeds in conducting, his business and also Rs. 12,500/ received from the Administrator-General as the Share, out of the estate of Loganathan, of his wife Gajambal who was the daughter of Loganatban. With this fund Ramalingam carried on the business of a building contractor in the conduct of which he was assisted by his sons and he acquired the estate in dispute. The case of the plaintiffs therefore was that Vydialingam was carrying on the business, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of joint-family property and therefore the property was jointfamily property. He held on all the five heads that the property devised under the will of Ramalingam was jointfamily property. in appeal, the High Court held that the case of the plaintiffs under the 4th and the 5th heads was not established. About the 3rd head the High Court held that there was no clear evidence that Ramalingam had received an ancestral fortune of Rs. 40,000/- or Rs. 12,500/- on behalf of his wife Gajambal from the estate of Loganathan. But the High Court held that Vydialingam was carrying on the business of a building contractor since the year 1896 and that in this business were associated his sons as they grew up; that the business was carried on in the name of Shaumugam because Vydialingam being a public servant could not carry it on in his own name; that after the death of Vydialingam this business was conducted as a joint-family business; that in the year 1910, Devraj who was attending to the Gadag Branch of the business left the family and commenced attending at Madras to the business of his father in-law who died about that time; and that Shanmugam ceased to have any connection with the. busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account, expenses debited for purposes connected with building construction' items showing that Devraj or Vydialingam had participated in those transactions and other entries of house-hold expenses showing that the account maintained in the name of Shanmugam was in truth the account of the joint- family. 'rho plaintiffs also relied upon certain letters written by Ramalingam and Devraj which from their terms evidenced their case' that they were not acting merely as agents of Shanmugam but as owners of the business. Reliance was also placed upon the testimony of one Masilamay Pillai, an Advocate (who later acted as a Judge of the Madras High Court), that in the arrangements made a few months before March 30, 1912, it was agreed that the goodwill of the Kolar Gold Fields business was allotted to Ramalingam. The learned trial Judge accepted the evidence of all the witness whose testimony was relied upon by the plaintiffs and held that the extracts Vydialingam's account established that he was carrying on business as a building contractor, and the books of account maintained in the name of Shanmugam were family accounts. In appeal, the High Court relied upon the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were "to large to be referred to the emoluments of Vydialingam as Sheristedar. It is legitimate inference that he has been engaged in other business. The executors did not, deny that an inference that Vydialingam was carrying on some business clearly arose from the entries in the books of account. But it was suggested that Vydialingam may have carried on the business of a money-lender and for that purpose he may have withdrawn funds from the Cavalry Road Bank and utilized them as his circulating capital for his money-lending transactions. It was asserted that Vydialingam was a Director of the Cavalry Road Bank and was on the account able to help himself to the funds of the Bank for his private business. But our attention has not been invited to any evidence on the record that Vydialingam was a director of the Cavalry Road Bank. The entries are of such large amounts and the credit and debit entries are so frequent that the inference that were made in the course of a money-lending business would be difficult to make. It also appears that Vydialingam had mortgaged his house in 1892 for Rs. 25,000/- in favour of Thirunaglingam Pillai and he discharged this mortgage by borrowing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the construction work done in the name of Shanmugam are available for the period. There are certain entries in the accounts of Vydialingam and Shanmugam which show interrelation between the two accounts. For instance, on January 9, 1904,.according to the Mining Company's account Shanmugam was paid three amounts Rs. 36/-, Rs, 362/14/1 and Rs. 12,243/5/-. About this time Shanmugam was indebted to the Cavalry Road Bank in the sum of Rs. 3,400/- on promissory notes. On January 19, 1904, he paid Rs. 3,100/into the Bank and partially satisfied this liability. Rs. 12,120/6/9 are found credited in the account of Vydialingam on January 23, 1904 and Rs. 12,000/are withdrawn on January 29. There is no direct evidence to connect the payments made in the accounts of Shanmugam and Vydialingam with the amounts received by Shanmugam, but it would be a reasonable inference, having regard to the proximity of time, that it was out of the Amount of Rs. 15,900/received by Shanmugam on January 19, 1904, that his liability for Rs. 3,100/- to the Cavalry Road Bank was discharged and an amount of Rs. 12,120/ 619 was paid into the Cavalry Road Bank and an amount of Rs. 305/- was utilized for satisfying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 905, an amount of Rs. 1,000/- was raised on a promissory note and sent to Devraj. On July 19, 1905, there was a remittance to Devraj by Shaamugam of Rs. 1,00 1/ 8/2. There is a similar remittance on September 17, 1905. On September 26, 1905, Rs. 100/- had been paid through Ramalingam. There are credit entries for large amounts received from Devraj. On May 27, 1907, Devraj remitted Rs. 7,000/- from Gadag to Kolar Gold Fields. It is unnecessary to examine all these entries. Also in the account in the name of Shanmugam there are several credit entries for house rent collected from tenants of the two houses which Vydialingam died possessed of, and debit entries for payment of municipal taxes. There are also in that account numerous entries for amounts collected by Ramalingam and paid into the account. There are also four letters which throw some light on the connection of the three brothers with the Kolar Gold Fields business. On October 5, 1909, Devraj addressed a letter to Ramalingam enquiring whether the letter did go to Gadag and gave several directions with regard to business matters. There is another letter dated October 6, 1909, also written by Devraj to Ramalingam which states ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lish that the business done by Shanmugam was his separate business. He points out that Vydialingam was a public servant and his service record showed that he was on leave only for short periods in the year 1898 and when he was posted at a considerable distance from Kolar Gold Fields, it would be impossible for him to attend at the latter place to any business requiring his continued attendance. But only a few extracts from the service record of Vydialingam have been printed in the record. Ext. 368 shows that Vydialingam drew a salary of Rs. 125/- for 20 days for Working no Nazir and Sheriatedar, and that he was transferred to the District Court of Shimoga in September, 1901. There is also an entry that Vydialingam was appointed Munsif for 12 days in June, 1900. Ext. 370 shows the amount of salary that Vydialingam drew from time to time. These documents do not show that it was impossible for Vydialingam to attend to the business. It is true that in the Mining Company's account payments made for construction work are debited till 1900 to Loganathan` and after Loganathan's death to Shanmugam, but, evidently, Vydialingam being a public servant could not publicly appear as carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Ramalingam and Davraj had interest in the business carried on by Shaumugam. In the sale deed dated July 2O, 1910, executed by Ramalingam in favour of Mandi Mohammad Hussain Saheb it was recited- that Shanmugam and Devraj had acquired properties out of their own earnings and were in enjoyment thereof, but he (Ramalinga) had no property of his own earning and therefore Vydialingam had given oral directions that the immovable property belonging to Vydialingam should be in the possession or enjoyment of Ramalingam alone and that Shanmugam and Devraj should have no right therein and that in accordance with the directions and with the permission of his two brothers. Ramalingam was in possession and enjoyment thereof and that he conveyed one of the houses for Rs. 4000/- to the vendee and in order to prove that his aforesaid brothers had no right in the property, he had got them to attest the documents. The sale deed bears the attestations of Shanmugam and Devraj. There is another document dated March 30, 1912, which is calleda "Release Deed", between Shanmugam on the one hand and Devraj and Ramalingam Mudaliar on the other, The three brothers are described as doing business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Ramalingam was given by Vydialingam to him under an oral direction and he dealt with that house on that footing. It is also true that in the ,Release Deed" it has been recited that Shanmugam was carrying on business as a contractor since the year 1898 without the aid of any joint- family funds and that the acquisitions made by him were his self-acquired properties. The deed also recites that there was no joint-family property which remained to be divided. But these two documents cannot be regarded as decisive of the question whether Vydialingam was carrying on the business of a building contractor and whether that business devolved on his three sons. The three brothers during the life time of Vydialingam were living jointly and the building contractor's business was being conducted during the life time of Vydialinga. We have already pointed out that the evidence shows that even before 1898 Vydialingam was carrying on a contractor's business. Both during the lifetime of Vydialingam and thereafter till 1910 the three brothers lived together and the entries in the General accounts maintained in the name of Shanmugam indicate that their expenses were jointly met. It als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht be obtained from Devraj and Ramalingam releasing and relinquishing the claims if any they might have in respect of any property which were claimed by Shanmugam as his self acquisitions, but he had himself not drawn up the deed nor had seen it at any time. The witness then made a statement that at the interview it "was understood that good-, will of the Kolar Gold Fields contract business was to be given to Ramalingam Mudaliar." On this part of his evidence there was no cross-examination. This evidence is important in two respects (i) that the release deed was to be drawn up in respect of properties which were claimed by Shanmugam to be his self acquisitions, and (ii) that it was understood that the goodwill of Kolar Gold Fields business was to be of Ramalingam. If the Kolar Gold Fields business was the exclusive business of Shanmugam, which he had started, it is difficult to appreciate why the goodwill of that business should be given to Ramalingam when for a comparatively small amounts Ramalingam and Devraj were relinquishing all their interest which they may possibly have in that business, and in the earnings made by Shanmugam out of that business. The trial Court as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque one Rs. 1,619-15-8 Debit Nandidurgam cheque Rs. 9,322-12-6 As a result of these entriesRs. 28,085-11-6 stood debited and Rs.25,689-11-4 stood credited in the account of Devraj. Counsel for the executors has not attempted to explain these entries. The trial Court thought that the credit entries represented payments made by Ramalingam to Devraj. There is no evidence in support of this view. The learned Judge appears to have thought that because the good will was agreed to be given to Ramalingam-that is how he read the evidence of Masilamany Pillai-Ramalingam became the owner of all its assets, and the account was since the date of the agreement in reality an account of Ramalingam. There is no warrant for this view. But the entries do show that large amounts were credited in the name of Devraj and debited, at the end of the year. If these entries were in respect of the Gadag business, the inference that the deed of release was only in respect of the separate estate of Shanmugan may receive some support. The conduct of Shanmugam subsequent to March 30, 1912, has also some bearing on this question. Shortly after the execution of the Release deed Shanmugam left for the United ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lingam to his sister is not reliable, Wajid was a stranger to the family and there was no reason why Ramalingam should if the story be true keep Wajid present at the time of handing an amount of Rs, 500/- to his needy sister. The story of Wajid that Ramalingam was carrying on business of a building contractor in the name of Rambal and Co., and that in that business he suffered loss is not supported by any independent evidence and does not carry conviction. Having regard to all these circumstances we do not think that the recitals in the sale deed and the deeds of release are by themselves sufficient to justify this Court in refusing to accept the finding of fact recorded by the High Court on appreciation of evidence. The High Court has held that the business which Ramalingam carried on since April 1, 1912, apparently in partnership with Shanmugam till 1916, and thereafter exclusively was directly connected with the business which devolved upon the three sons Vydialingam when he died in 1.905. Prima,-facie the findings recorded by the High Court are findings of fact, and this Court normally does not enter upon a reappraisal of the evidence, but we have entered upon a review of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed not pay such sums as they had bona fide made to Narayanaswami Mudaliar in respect of that transaction either on the basis of quantum meruit or as a partner of the business. In that view of the case the decree passed by the High Court on the footing that the plaintiffs are entitled to the immovable properties in Madras and not the movables must be confimed. The appeals therefore fail and are dismissed. The High Court at Madras has held on the evidence, that the properties which were disposed of by Ramalingam by his will were not his separate estate but were joint family properties, whereas the Mysore High Court has taken a contrary view. We have on a review of the evidence agreed with the view taken by the Madras High Court. Evidently, as a result of the judgment of the Mysore High Court the heirs of Ramalingam have lost property of substantial value. We think that in the special circumstances of this case the plaintiffs should not be out of pocket in respect of the costs of this litigation. We therefore direct that all costs of the plaintiffs between advocate and client, in the suit, the appeals in the High Court and in this Court should come out of the estate in the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Indian Succession Act, 1925. The claim of the sons and the widow of Ramalingam for revocation of the order granting probate by the Madras High Court in its entirety cannot be sustained because, for reasons set out by this Court, they are unable to claim title to the movables of Ramalingam in Madras. The appeals, therefore, fail and are dismissed with costs. Civil Appeal No. 281 of 1958 This appeal arises out of a suit filed by the cutors under the will of Ramalingam for a declaration that 2000 shares in the India Sugars & Refineries Ltd., standing in the name of Vishwanath, in truth, belonged to Ramalingam and that be purchased the same for himself and out of his self-acquisitions but benami in the name of Vishwanath, and accordingly under the will of Ramalingam they were entitled to those shares as part of the estate. Vishwanath resisted the suit contending that the shares belonged to the joint family consisting of Ramalingam and his sons and that on the death of Ramalingam, his sons as surviving co. parceners became owners of the entire property of the joint family, including the shares. The trial Judge dismissed the suit filed by the executors. In appeal, the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shares in dispute. The appeal therefore fails and is dismissed. But we are of the view that the costs of Gajambal between Advocate and client of and incidental to the suit and the appeals in the High Court and this Court should come out of the estate of Ramalingam in the hands of the executors. Civil Appeal No. 283 of 1958 This appeal arises out of a suit relating to an immovable property, Nose. 1 and 2 Waddels Road, Kilpauk, Madras. Of this property, the second respondent T. A. Ramchandra Rao was the former Owner. There were court proceedings in Civil Suit No. 10 of 1940 filed by Gajambal against T.A. Ramchandra Rao, and a compromise decree was passed in that suit and pursuant to that compromise, T. A. Ramchandra Rao sold the property to Gajambal by deed dated August 7, 1940. The executors of the estate of Ramalingam filed Suit, No. 91 of 1944 in the High Court of Madras against Gajambal and T. A. Ramchandra Rao for a declaration that the Waddels Road property formed part of the estate of Ramalingam and that Gajambal was merely a benamidar for Ramalingam, and for an order for possession of the property from Gajambal and T. A. Ramchandra Rao and for mesne profits at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osts of the first respondent Gajambal in this appeal. HIDAYATULLAH, J.-One Ramalingam, a prosperous contractor and businessman, died on December 18, 1942. Three months before his death, he executed on September 10, 1942, the last of his many wills. By that will, he cut off his eldest son, Viswanathan and a, daughter, Bhagirathi, completely from any benefit, gave some immovable property and shares to his widow, small bequests to his other daughters, his grandson, Tyagaraja, son of Viswanathan and his grand daughter from Bhagirathi. From the residue of his vast estate, he directed that Rs. 50,0001- be spent over a ward in a hospital and the rest be applied for certain charitable purposes of a public nature. He appointed three execuitors: ( 1) A. Wajid (a retired official of Mysore State), (2) Narayanaawamy Mudaliar and (3) S. L. Mannaji Rao. For sometime before his death, his relations with his family were estranged and the latter had gone to the length of starting proceedings on June 2, 1942, under the Lunacy Act in the District Court, Civil and Military Station, Bangalore, against him. Some evidence was recorded in that case, and medical experts were examined. After the death of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the family and the executors of the will in the Madras High Court (O.S.). These were C. S. Nos. 200 of 1944, 203 of 1945, 274 of 1944, 344 of 1946 and 91 of 1944. To these suits it is not necessary presently to refer. In all these other suits in Madras, the claim was for possession of some specific property either under the will or on the averment that it belonged to a joint family. Leaving out of account the suits concerning specific properties for the present, the net position was that C. S. No. 56 of 1942 and C. S. No. 60 of 1944 related to properties in Mysore State, and C. S. No. 214 of 1944 in the Madras High Court related to properties, movable and immovable, in Madras., in both, the main issue to be tried was whether Ramalingam died a member of a coparcenary, possessed of joint family property and joint family business. The consolidated suit in the Court of the District Judge, Bangalore, was decided first and it was held that the properties were joint and that the will was incompetent. Two appeals were then filed in the Mysore High Court, R. As. Nos. 104 and 109 of 1947-48. The appeals were first placed before Paramasiviah, C. J., and Balakrishaniah, J. They were adjourne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 61, 62, 49 and 50 of 1949-50 were filed to obtain a review, but were dismissed by the Full Bench on November 10, 1949. Thus finished the Mysore part of the litigation. Before the Full Bench in the Mysore High Court heard the appeals, fruitless efforts were made by the sons of Ramalingam to induce the Maharaja to appoint ad hoe Judges to hear the appeals. Requests were made by them to the Chief Justice to grant them time, so that the state authorities might be moved against and also to adjourn the appeals on other grounds. The sons of Ramalingam gain that they were anxious to secure the services of outside counsel to argue the appeals, but the requests were rejected, These are all matters of record, and there is no dispute about facts. It was alleged in the Madras suit that there were unpleasant scones between Medappa, C. J., and one Raju, counsel for the appellant, about which I shall say something later, as the facts are in dispute. In short, the appeals were allowed, and the two suits were dismissed. This is a convenient stage to refer to the pleas raised in the Mysore suits and the reliefs claimed therein. In this connection, we need refer only to C. S. , No. 56 of 1942. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 14, Monteith Road, Madras. The movable properties were: (1) Assets of Oriental Films, Madras. (2) 18366 3hares of Indian Sugars and Refin- eries Ltd., Hospet. (3) 1000 shares of Indian Sugars and Refin- eries Ltd., Hospet (4) Balance of the amount for building cons- tructed for the Mysore Vegetable oil Co. , Madras. It was stated in the plaint that since the executors had objected to the jurisdiction of' the Mysore Courts to entertain the claim in respect of the properties situated in Madras, another suit was being filed. The same pleas about the joint family, its nucleus, its family members were, raised. The defence was also the same. When the judgment of the Mysore High Court was relied upon by the executors as conclusive on the point of jointness of the family, its nucleus and the joint character of the Kolar Gold Field business, the sons of Ramalingam alleged that the judgment was not in accordance with the rules of natural justice, that the decision was coram non judice, and that the Chief Justice and Balakrishniah, J., were not competent Judges, due to their bias and interest, to sit on the Bench. In the course of numerous affidavits, the eldest son, Vishwanathan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ias' in Meddappa, C. J. He declined to frame issues about the other allegations. The two selected allegations were the use of the car and the attempt to dissuade Mr. Raju, Rajagopalan, J., also held that the judgment of the Mysore High Court, did not constitute res judicata at least in respect of the immovable property in Madras, (a) because this questionwasnot considered by the Mysore High Court due to amendment of the plaint, and (b) because the Mysore Court had no jurisdiction to try it. Against the decision of Rajagopalan J., both sides appealed. The executors were aggrieved by the decision about res judicata and the enquiry into the conduct of the Chief Justice, and the sons of Ramalingam, by the restricted enquiry into the conduct of the Chief Justice. The Divisional Bench, which heard the appeal, agreed with Rajagopalan, J., about res judicata, and affirmed that part of his order. The Divisional Bench held that the incident of the use of' the car was too old, even if true, to show interest and was not relevant. The issue regarding the dissuation of Mr. Raju was allowed to stand. The allegations against Balakrishniah J., were that he had suggested the compromise when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dras Courts in respect of the movables but not in respect of the immovable property in Madras. From the judgment of the Divisional Bench, Civil Appeals Nos. 277 and 278 of 1958, have been filed respectively by the sons of Ramalingam and the executors. The sons of Ramalingam raise the issue that the judgment of the Full Bench of the Mysore High Court was coram non judice and not conclusive in respect of immovables, while the executors claim that it is conclusive in respect of any matter decided by it, particularly about the Kolar Gold Fields business being the private business of Ramalingam, contending that the only point that was open for decision in the Madras High Court was whether any item of property was acquired without the funds of that private business. Though these appeals were argued at considerable length the points were only two. They are : 1. the application of s. 13 of the Code of Civil Procedure from these view points, viz., (1) violation of the principles of natural justice, (2) bias and interest of some of the Judges constituting the Full Bench, (3) competence of the Mysore Courts as to the controversy between the parties and the extent of that competence ; and 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some adjournments, when they asked for ,them. Whether a particular prayer for adjournment ought to have been granted is hardly a question for another Court to decide. In, this case the conduct of the sons of Ramalingam cannot be said to be entirely correct. It is matter of record that from the moment the names of the Judges of the Full Bench were announced they had no desire to have the case heard and decided by them. Admittedly, they made applications to the Maharaja and Dewan for the appointment of ad hoc Judges. The attempt to get the appeals adjourned was based on two reasons : firstly to avoid the presiding Judges, or at least two of them, and secondly, to enable Sir Alladi Krishnaswami Ayyar to appear for them. The attempt to secure adjournments were not only to suit their senior counsel but also to play for time to get other Judges appointed, if possible. As to the senior counsel, it is enough to say that there were other counsel in the case, but the sons of Ramalingam asked them to withdraw from the case. This was not done bona fide but merely to force the Court to grant an adjournment it had earlier refused. In my judgment, the sons of Ramalingam had long notice of the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or on his signing it. The very interesting argument of the counsel for the sons of Ramalingam may be left to be decided in abetter case. If the argument is accepted, some curious results will follow. Either, Balakrishniah, J., had to make a reference without waiting for his brother Judge to deliver his judgment or to lose his right because no sooner Kanda- swami Pillai, J., read his judgment to the And than the judgment of the District Judge would be confirmed. In fact, whoever delivered the judgment first' would lose his turn to make a reference. It is obvious that Balakrishniah, J., would wait in common courtesy for his brother Judge to deliver his judgment before making the reference. The judgment of Balakrishniah, J., ends with the order of reference and '-hen follows his signature. What happened really does not appear from the record but is contained in affidavits, which, to my mind, should not have been read in this, connection. It is obvious that the reference was made before the judgment was perfected by the signature. No doubt, there is a rulling of the Allahabad High Court in Lal Singh v. Ghansham Singh, but the practice of the Mysore High Court was authoritativel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts with which we are dealing. If the practice there was common and inveterate no litigant can be said to apprehend reasonably that he would not got justice. There are no less than four cases of the Mysore High Court in which a similar procedure was followed, in addition to those already cited. In my opinion, in view of the strength. of the Court and the practice in vogue, the Judgment of the Full Bench cannot, on the circumstance, be described as against the principles. of natural justice. The next contention in support of the plea that the decision of the Mysore High Court was coram non judice and against the principles of natural justice charges the learned Chief Justice and Balakrishniah, J., with unjudicial conduct and prejudice and the former with interest in the executors. It is convenient to take the allegations against the Chief Justice and Balakrishniah, J., separately. As regards the Chief Justice, it will be recalled evidence was allowed. to be led only on the question of dissuading Mr. Raju from appearing in the case. But no direct evidence was led. What transpired between the Cheif Justice and Mr. Raju (If something did transpire) could only be deposed to by one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the other. The matter has thus to be examined carefully. The evidence was not related to any specific issue, there being none raised in the caset. Most of the evidence was in affidavits, which do no appear to have been ordered and could not, for that reason, be read as evidence, Such evidence as there was, was highly interested and uncorroborated from any independent source. The affair was extremely old even if true, to establish an interest, such as would disqualify a Judge from hearing the case. In these circumstances, it is evident that the case alleged, cannot be held to have been established. Next was the allegation of friendship between Medappa, C.J., and A. Wajid and Manaji Rao. Manaji Rao faded out as an executor, and took hardly any interest in his duties as such, and cannot, therefore, be said to have been a potent factor to interest Medappa, C. J. In support of his allegation that Medappa, C. J., and A. Wajid were great friends, Viswanathan swore a few affidavits. A fairly long affidavit (No. 440 of 1950) in the High Court was reproduced in its entirety by Ramaswami, J., in his Judgment. Some other affidavits were sworn in this Court when certain proceedings for a wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Their conduct on and from the announcement of the Full Bench was calculated to exasperate and annoy any Judge, who held his own reputation dear. Of course, the more Medappa, C. J., showed irritation, the more Raju and his clients got publicity value, which they hoped to exploit with the Maharajah. In My opinion, the conduct of the sons of Visbwanathan was studied and designed to further their move for a different Bench. If we leave out of consideration the dissuading of Raju, as to which also there is no evidence, and the use of the estate car, about which also there is no evidence, there remains a vague allegation of deep friendship denied on the otherside and not proved otherwise by independent evidence. I say independent evidence, because the evidence of Puttaraja Urs, J., about the conversation between him and Medappa, C.J., about this case cannot be said to be disinterested because the witness had his own grievance against the Chief Justice, which be was ventilating to all and sundry. He even went to the length of reporting to the Chief Justice of India. I am not required to pronounce upon the truth or otherwise of Puttaraja Urs, J's personal aspersions on Medappa, C.J., b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iah, J., following the inveterate practice of his Court, it is too much to say that the judgment was Coram non judice, or the principles of natural justice were violated. The further contention that Balakrishniah, J., had rendered himself a witness because the terms of compromise were discussed before him' loses all significance in the face of the order that the compromise, if any, could not be recorded in the interest of the estate. On a review of these allegations, I am not satisfied that the sons of Ramalingam have made an acceptable case. It cannot, therefore, be said that cls. (a) and (d) of S. 13 are applicable, and that the judgment of the Mysore Full Bench is not conclusive. I should not be taken to hold the view that the hearing was without incident, or that the conduct of these two Judges was always correct. But all the facts are overlaid with exaggeration and perjury, and no definite conclusion can be reached. I am, however, quite clear that the evidence falls far short of that degree of proof which would entitle another Court to say of a foreign judgment that it was coram non judice or that it had been rendered violating the principles of natural justice. I shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ga to his father ; (4) That the other brothers, acknowledged in writing that they had no title or interest in the business of Shanmuga which were his self acquisitions ; (5)That Ramalingam joined Shanmuga as a partner and later brought out his interest; (6)That Ramalingam did not come into possession of any movable property of his father ; (7)That even if Ramalingam sold the houses left to him by the father they were his exclusive properties bequeathed to him by Vaidyalingam whose self-acquisitions they were (8)That the claim of the sons of Ramalingam that the properties were acquired with the aid of the joint family nucleus and that were joint family properties was disproved. In the result, it was that the business and possessions were not of those of a joint family but the separate properties of Ramalingam. The question whether these finding or any of them are conclusive in the subsequent litigation in Madras has been raised in connection with the 18366 shares of the Indian Sugars and Refineries Ltd., by the sons of Ramalingam, who seek to avoid the Mysore judgment and in respect of the immovable property in Madras by the executors who claim the benefit of the same under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as if they were decrees passed by a British Indian Court. Some Indian States were so declared, and it is interesting to know that Mysore State was one of them. In the Code of 1908, with which we are concerned, the ban against the judgments of Indian States was removed and s. 14 was re-enacted as a. 13, and Explanation VI was re- enacted with slight modifications of language as s. 14. The change between the old a. 14 which worded in a negative way and s. 13, which states affirmatively that a foreign judgment shall be conclusive is significant, and lies in the fact that during this time there was a corresponding advance in the theories of Private International law in England. But this much is evident that in dealing with the question of foreign judgments in India, we have to be guided by the law as codified in our Country. That law attaches a presumption (though rebuttable) of the competency of the Court, which pronounced the foreign judgment. It makes it (a) conclusive (b) as to any matter thereby directly adjudicated between the same parties or between parties under whom they or any of them claim litigating under the same title. The conditions precedent are contained in six clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86 of his Book, and this is what the learned author said: "In order however to found a proper ground of recognition of any foreign judgment in another country, it is indispensable to establish that the Court pronouncing judgment should have a lawful jurisdiction over the cause, over the thing, and over the parties. If the jurisdiction fails as to either it is... treated as a mere nullity, having no obliga- tion, and entitled to no respect beyond the demestic tribunals. And this is equally true,, whether the proceedings lie in rem or in personam or in rem and also in personam". The opinion expressed by Story here is, in its turn, based on that of Boullernois in his Traite, et de la Personnalite et de la Realite des Lois Coutumes ou Status, (1766) Vol. I, pp. 618-620. The law stated by Blackburn, J., has been universally accepted by all the Courts in the English speaking countries and it was quoted with 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: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be that the judgment of the foreign Court may be a nullity, and it would be too much to say that full faith should be given to such a judgment. Indeed, in England,: this part of dictum was not applied; Papdopoulos v. Papadopoulas. That apart, in my opinion, the above passage' admirably sums up the law connected with the competency of the foreign Court. Mere irregularities of procedure in the exercise of jurisdiction by the foreign Court are not enough: See Ashbury v. Ellis ; but a total want of internal jurisdiction may have to be noticed if pleaded in answer to the foreign judgment. There is no real difference in so far as competency goes between actions in rem and actions in personam. In some actions in personam, the necessity of jurisdiction over any particular thing may not arise. This is always necessary inri judgments in rem relating to immovable property. Besides this a judgment in personam binds only the parties, while a judgment in rem seeks to bind others also. Thus, the objection to the jurisdiction of the Court in a foreign country on other than international considerations, must be raised in that country. This is settled in Vanquelin v. Bouard. Objections to it int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionally, it is clear that they were. The subject of the controversy was the status of Ramalingam, a subject and resident of Mysore State. His will made in that jurisdiction was admitted to probate there. His sons and other relatives who figured as parties and those in poss- ession of the property were in that State. The property which was the subject of dispute, including the Kolar Gold Fields business situated in Mysore State, but excluding the shares in the Indian Sugars and Refineries Ltd., (Which are disputed as to their situs) was also in Mysore. The sons of Ramalingam themselves commenced the two suits and invoked the jurisdiction of the Mysore Courts. They claimed that the Kolar Gold Fields business belonged to a joint family and not to Ramalingam alone. They in fact, succeeded at first, but lost on appeal. In view of these considerations and applying the dicta of Blackburn, J., and Lindley, M. R., the conclusion is inescapable that the Mysore Courts were competent internally as well as inter. nationally to decide about the status of Ramalingam and the rights to or in the Kolar Gold Fields business between these very parties. It may be mentioned here that the competence is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsensus, though reciprocal laws exist. Each Country decides for itself how far the foreign judgments will be received. A foreign judgment receives different treatment in different parts of the world. Apart from reciprocity between different Countries which have agreed to be Mutually bound, there are numerous approaches to the problem. In some Countries, direct enforcement of such judgments, if registered in the Country of origin, is permitted in the same way as in ss' 44 and 44A of our Code of Civil Procedure. In others, the judgments (unless reciprocal agreements exist) must be sued upon. There too, the question arises whether the original cause of action merges in the judgment-transitu in rem judicature, or survives. In some Countries like France, the judgment of a foreign Court is subjected to scrutiny, while in some of the Nordic Countries, the judgment has no value. In Tallack v. Tallack 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 judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determinations of rights or title to things (excluding immovable property as to which I shall say something later) judgments in rem are now confined to Admiralty actions. There is, however, a remnant in respect of movables, which is represented in the three rules of Westlake (a. 149) which are: (a) judgments which immediately vest the property in a certain person as against the whole world; (b) judgments which decree the sale of a thing in satisfaction of a claim against the thing itself; and (c) judgments which order movables to be sold by way of administration. This distinction is summed up by Holmes, C. J., in Tyler v. Judges of the Court of Registration as follows: " If the technical object of the suit is to establish a claim against Some particular person, with a judgment which generally in theory, at least binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defence, the action is in personam., although it may concern the right to, or possession of a tangible thing......... If on the other hand the object is to bar indifferently all who might be minded to make an objection of any sort against the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... row a phrase, savors of a res, and has all along been treated as such. Now, the learned Judges make this distinction. They say that in an action of divorce you have to do with a res, to wit, the status of marriage, but that in an action of nullity there is no status of marriage to be dealt with, and therefore Do res. Now it seems to me that celibacy is just as much as status as marriage." See also the observations of Lord Haldane at pp. 652-653. Commenting upon that case, Cheshire (op. Cit. 8UP) says at p. 657: "Thus the word res as used in this context includes those human relationships, such as marriage, which do not originate merely in contract, but which constitute what may be called institutions recognised by the State." In the same way, adoptions in foreign Countries which were not recognised in England at one time are now being recognised. See Dicey's Conflict of Laws, 7th Edn., p. 460, particularly p. 461, where Dicey's Original view is shown to be obsolete. The subject of adoption is being treated 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any error either. (1) of fact (2) or of law". In so far asjudgment in. personam are concerned, any of the matters decided inter partes are binding on the parties and privies, though not on strangers. This follows from the rule now firmly grounded that a foreign judgment well be examined from the point of view of competence but not of its errors, subject, of course, to there being no fraud, collusion, breach of the principles of, natural justice or of public policy of England or a wrong apprehension of the law of England, if that law be involved. From the conclusiveness 'of foreign decrees, it. may be said here that the penal laws of another Country or judgments involving a penal decree are excluded. It is customary to quote Chief Justice Marshall's famous dictum in the Antelope (1): ',The Courts of no country execute the penal laws of another." The same is the position of decrees, orders or judgments in matters of taxation and penalties under taxing laws. The American Courts follow in these respects the law in England, and Goodrich in his Conflict of Law, p. 603, sums up the American approach in one pithy sentence : "A valid foreign judgments should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Evidence Act. Section 40 makes the existence of a judgment ete. which by law prevents any Court from taking cognisances of a suit or holding a trial, a relevant fact when the question is. whether such Court ought to take cognisance of such suit or hold such trial. This enables a judgment, order or dec- ree, whether of a Court in India or a foreign Court, (1) (1750) 1 Ves Sen. 444. to be propounded for the particular purpose mentioned. Section 42 next mentions that judgments etc. other than those mentioned in a. 41, are relevant if they relate a matters of public nature relevant to the enquiry, but such judgments, etc., are not conclusive proof of what they state. The illustration shows what is meant by matters of a public nature. Section 43 then lays down that judgments etc., other than those mentioned in as. 40, 41 and 42, are irrelevant unless the existence of such judgments etc., is a fact in issue or is relevant under some other provision of the Evidence Act. Section 44 says lastly that any party to a suit or other proceeding may show that any judgment etc., which is relevant under as. 40, 41 or 42 and which has been proved by the adverse party was delivered by a Court n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the judgment. That there may be other provisions, of some other law which may also attach conclusiveness to judgment etc., of some other kinds goes without saying. Section 41 does not prohibit the making of other laws. The provisions of El. 11 of the Code of Civil Procedure, for example, go much farther than s. 40 or s. 41 of the Indian Evidence Act. Section 40 touches only the fringe of the law of resjudicata ; but provision for that has been made more exhaustively in s. 11 of the Code of Civil Procedure. The difference between provisions in the law of evidence and the law of procedure is that one deals with the question of proof and the other, with a bar of suit. A fact which can be proved from a judgment made conclusive for that purpose need not be proved afresh. The proof of the judgment is enough. But a second suit can only be barred on the principle of resjudicata if the law says so ; and this bar is regarding the adjudication of a controversy decided before. It is not possible to add to the list of subjects mentioned in s. 41 of the Indian Evidence Act, except by legislation. Conclusiveness there attaches only to the subjects mentioned therein, and a fact established by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to be raised whether the judgment was obtained by fraud or collusion. But ss. 40-44 of the Indian Evidence Act do not contain certain provisions which are contained, in s. 13 as conditions precedent to the conclusiveness of foreign judgment. It is inconceivable that a foreign judgment in rem of the class mentioned in s. 41 of the Indian Evidence Act was intended to operate, as conclusive, even though it was opposed to the principles of natural justice or though it was not given on the merits of the case or if it was founded on an incorrect view of international law or the law of India, or was in breach of any law in force in India. The existence of such prior conditions in s. 13 of the Code and their absence in the Evidence Act compel one to hold that both judgments in rem and judgments in personam are contemplated by s. 13 of the Code. The only difference is that while the Code makes foreign judgments conclusive inter partes, s. 41 makes certain determinations described there as conclusive proof even against strangers. But such determinations, if found to foreign judgments, must also comply with the conditions stated in a. 13 to merit conclusiveness, and a foreign judgment will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the exercise of capacity." Thus status leads to capacity, and capacity to rights and to rights can be said to be embedded in status and to spring from it. Scrutton, L. J., in In re Luck's Settlement Trusts (1) said: "Status is in every case the creature of substantive law." According to Salmond, the aggregate of man's proprietary rights constitutes his estate his assets or property. The sum total of his personal rights, on the other hand, constitutes his status. According to him, substantive Civil Law is thus divided:- Substantive Civil Law property Obligations Status Domestic status, as he explains in an appendix to his Book is- "the Law of family relations, and deals with the nature acquisition and loss of all these personal rights, duties, liabilities and disabilities which are involved in domestic relations." The conflict of law ordinarily recognises status created by the law of another country. See In re Luck's Settlement Trusts 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 progres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporation not arising from contract but status and any matter relating to coparcenery is first a question of status and only when the status is established that a source of material rights comes into being. If the matter had rested with the application of modern theories of Private International Law I would have been tempted to characterise the decision of the Mysore High Court as partly in rem and partly in personam, that dealing with the question of joint or separate acquisition of the Kolar Gold Fields business by Ramalingam as involving decision arising out of status and thus in rem. Such composite actions are not unknown. Story has adverted to them in a passage I have cited earlier and the Court of Appeal in England in In re Trepca Mines Ltd. found the action to be partly in rem and partly in personam. The decision of the Mysore High Court was one on status and savoured of a decision in rem. Limited as the Judicial approach is by the existence of a. 41 of the Indian Evidence Act and the Judicial Committee in Appa Trimback's case, I venture to express this opinion. Private International Law today is developing by reciprocity and more and more kinds of judgments are being r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the Courts of the Country where immovable property is situated have jurisdiction and the lexsitus is applicable. In Cartrique v. Imrie the question really was whether the sale of chattal (a ship) in satisfaction of a claim against the chattal itself was binding on certain parties who had not submitted to the jurisdiction of the French Courts and it was held that a judgment ordering such sale was a judgment in rem if the chattal at that time was in the territory of the foreign State. The ship in question had taken provision on board for which payment was demanded and the action in the French Tribunals was taken against the Commander Benson who was required to pay 'par privilege sur ce Navire. Of course the owner Clause or Castrique the purchaser did not appear before the French Tribunal but jurisdiction of the French Tribunals was founded on the presence of the ship in French waters at Havre. Such question can hardly arise in respect of immovable property because the courts of the Country where immovables are situated can alone have the jurisdiction and no foreign Court can decide the dispute or enforce it effectively. Apart from the fact that even in England the distincti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugar and Refineries Ltd., Madras I wish to refer to a case of the Privy Council on which great reliance has been placed. That case is reported as Maqbul Fatima v. Amir Hasan. The judgment that is printed in the All India Reporter is of the Allahabad High Court which the head note says was "confirmed by" the Privy Council. I shall content myself with citing the headnote : "A obtained judgment in the sub Court Bareilly (British Indian Court) declaring his title to the properties of the deceased situate within the jurisdiction of that Court. Subsequently B instituted a suit against A in Rampur, a Native State for recovery of possession of the properties of the deceased situate within the Native State. Thereupon A filed the 'present suit for a declaration that the Judgment of the Bareilly Court would operate as res judicata in the Rampur Court and for a perpetual injunction restraining B from proceeding with the suit therein. The High X X Court held that as the Court in British India were not competent to try suits with respect to property situate in Native State the judgment of the Bareilly Court would not operate as res judicata. It being urged that under s. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and enforce that order by the coercive process of the law. It would be a different matter if the Company refused to, register the transfer and a different question might then have arisen; but we are told that the Company has obeyed the decision and accepted the executors as the shareholders. The judgment of the Mysore Court on the ownership of the shares is ancillary to the main decision. It is therefore not necessary for me to consider the argument of Mr. Desai that jurisdiction attaches on the principle of effectiveness propounded by Dicey, but which has been criticised by the present editors of his book and by Cheshire. In my opinion, this controversy does not arise in this case, which must be decided on the plain words of s. 13 of the Code of Civil Procedure. For the reasons above given I would dismiss the appeal of the sons of Ramalingam (Civil Appeal No. 277 of 1958) and allow that of the executors (Civil Appeal No 278 of 1958), dismissing C. S. No. 214 of 1944 with costs throughout. In the light of what I have decided I would have considered the remaining appeals and passed appropriate orders therein; but this is unnecessary as my brethren take a different view in the two m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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