TMI Blog1964 (2) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... s mother of Ishwar. Ishwar owned some immovable property at Talava in Sagar Taluka of Shimoga District which formed part of the princely state of Mysore. In respect of that property the plaintiff instituted O.S. 268 of 46-47 in the Court of Munsiff at Sagar against the appellant and other, claiming to be the nearest heir to deceased Ishwar. This suit was decreed by the trial Court. The present appellants challenged that decision in R.A. 59 of 48-49 in the Court of the Subordinate Judge at Shimoga, the appellate Court upheld the decision of the trial Court and dismissed the appeal. The former High Court of Mysore dismissed the second Appeal No. 436 of 49-50 on 21-8-1950 declining to interfere with concurrent findings on facts. In the trial Court at Sirsi the plaintiff relied upon the Judgment of the Munsiff's Court at Sagar as conclusive between the parties as regards his right to succeed to the property of Ishwar in preference to the present appellant, under Section 13 of the Code of Civil Procedure. The trial Court held that the judgment operated as res judicata and decreed the suit in full. The present appellants then challenged that decision in Civil Appeal No. 187 of 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f them claim litigating under the same title except:- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in India. In the present case, the appellant does not challenge the judgment of the Civil Court at Sager on any other grounds mentioned in Clauses (b) to (f). He concedes that the foreign judgment was between the appellant and the first respondent and some others and that the parties were litigating under the same title as regards their rights to succeed to the properties of Ishwar within the jurisdiction of that Court. The wording of the section makes it plain that such judgment shall be conclusive as to any matter directly adjudicated upon by a foreign Court between the same parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of any such thing is relevant. Such judgments are conclusive of matters actually decided upon between the parties to the suit or their privies. The conclusiveness of a foreign judgment forms the subject-matter of Section 13 of the Code of Civil Procedure and receives the same recognition in India as is accorded to it in England. In the present case the conclusiveness of the judgment of the Sagar Court attaches only to the title to the property situated within the jurisdiction of that Court. That judgment cannot have extra-territorial effect because the Court at Sagar was not competent to adjudicate upon the rights of parties in respect of immovable property situated outside its jurisdiction. (6) In this view, it would appear that the Courts below have erred in holding that the judgment of the Sagar Court operated as res judicata. The principle of res judicata laid down in S. 11 of the Code is wider than the principle of conclusiveness of foreign judgment laid down in S. 13 of the Code. The points decided by the Civil Court at Sagar related to the preferential claim of the rival claimants to the property of deceased Ishwar situated in a foreign territory. Mr. Krishna Murthy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 identical. A foreign Court being incompetent to try a suit relating to immovable property not situate within its jurisdiction, the grounds on which its decision relating to title to immovable property within its jurisdiction is founded will not debar investigation into title to other property within the jurisdiction of Municipal Courts, even if the latter properties are alleged to be held on the same title. Every issue and every component of the issue relating to title to immovable properties must be decide by the Court within whose jurisdiction it is situate; to recognise the authority of a foreign Court to adjudicate upon even a component of that issue would be to recognise the authority of that Court to decide all the components thereof. x x x x x x Their Lordships further discussed the plea of res judicata with reference to a foreign judgment and explained the law on the point. The rule of conclusiveness of a foreign judgment as enacted in Section 13 is somewhat different in its operation from the rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnecessary to discuss this fact of the question since the present suit is not based upon the judgment of a foreign court but is founded independently upon the original cause of action. (10) From the aforesaid discussion, it will be manifest that the lower Courts erred in treating the judgment of the Sagar Court as res judicata. Mr. Krishna Murthy for the respondents sought to support the judgments of the courts below by relying on the decision of the Bombay High Court in Vasant v. Dottoba, and that of the Privy Council in Nataraja v. Subbaraya AIR 1950 PC 34. In both these cases, the judgments of the foreign courts related to the declaration that the claimant in each case had been validly adopted according to the law of domicile of the widow making the adoption. So far as the Bombay High Court is concerned, it held that the judgment of the Civil Court at Belgaum in so far as it declared the status of the adopted son in a suit between the same parties was binding between the parties in their subsequent litigation in the Civil Court at Kolhapur. In Nataraja's case, AIR 1950 PC 34 the Privy Council held that the judgment of the Court at Pondicherry recognising the validity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in this sense but would relate to the 'proprietary relation' of the claimant with reference to deceased estate-holder. (13) Though the argument advanced for the appellant that rights to immovable property should be decided according to the law of the land in which such property is situate is sound, it has little practical value in India in respect of persons who are governed by the Hindu Law. The Indian Succession Act which is the law of the country does not apply to Hindus and the right to succession is governed by the Hindu law which is the law of domicile. As stated in Maine's Hindu Law and Usage: prima facie any Hindu residing in a particular province of India is held to be subject to the particular doctrine of Hindu law recognised in that province. But this law is not merely a local law. It becomes the personal law, and a part of the status of every family which is governed by it. Consequently where any such family migrates to another province, governed by another law, it carries the own law with it, including any custom having the force of law...... (Pages 89-90, Eleventh Edition). (14) In short, 'the conclusiveness of a foreign Judgment in rem re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
