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TMI Blog1994 (3) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ce at Rs. 12,38,397.05 being the compensation awarded by the Land Acquisition Officer for the entire property. (c) Further, the claim of exemption of Rs. 1,00,000 under section 33(1)(n) of the Act was also rejected for the reason that the domicile of the deceased was in dispute. 2.2 On appeal, the Appellate Controller of Estate Duty set aside the first issue to the Assistant Controller of Estate Duty to find out as to whether the deceased was a domicile of India or England at the time of his death after making independent enquiries and verification in regard to the passport of the deceased as to whether it was Indian or British. The finding of the Assistant Controller of Estate Duty on the next two issues in regard to the adoption of the Valuation of the Government-approved valuer pertaining to the Civil Lines property and in regard to the disallowance of exemption under section 33(1)(n) of the Estate Duty Act were confirmed by the Appellate Controller of Estate Duty. Hence the instant second appeal by the Accountable persons before us. 3. The learned Counsel for the Accountable person prayed for allowing the appeal by submitting as below : 3.1 The deceased Shaukat Shah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that the rule of res judicata applies to all adjudication in a former suit, which term denotes a suit decided prior to the suit in question whether or not it was instituted earlier thereto. The Assistant Controller of Estate Duty is wrong to say that a foreign judgment is not a judgment, especially when no reason has been assigned for such conclusion drawn by him. In view of the admissibility of the foreign judgment, it becomes conclusive. Hence the question of domicile cannot be re-examined by any other court. The Assistant Controller of Estate Duty proceeded on suspicion and surmises, not being guided by law. Further the law of domicile in Indian Succession Act, Part II, does not apply to Mohammadan as stated in section 4 of the Indian Succession Act. Hence the findings of the Assistant Controller of Estate Duty are not correct as the deceased was domiciled in United Kingdom as per the decision of the British High Court. The Appellate Controller of Estate Duty is, therefore, totally wrong in setting aside the assessment and restoring the issue to the Assistant Controller of Estate Duty for making necessary enquiries regarding the deceased holding Indian or British passport and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te ". 4. On the other hand, the learned representative for the revenue played for dismissal of the appeal by countering as below : 4.1 The Assistant Controller of Estate Duty rightly relied upon the decision in the case of Sankaran Govindan. It is correctly observed by the Assistant Controller of Estate Duty that a perusal of the letter dated 18-3-1992 of the Solicitor M/s. Maxwell Batley Co. at London stating that the deceased was domiciled in England at the time of his death shows that the issue of domicile was contested in England, and it was yet open to file appeal against it. It was proper to hold for the Assistant Controller of Estate Duty that the order of the Estate Duty authorities in England in itself was not sufficient evidence to prove that the deceased was not domiciled in India at the time of his death. His reference to section 21(1) of the Act and to certain communication in his order rightly raises ambiguity regarding the status of the deceased. The legal position in regard to the Indian Succession Act was not properly examined by the Assistant Controller of Estate Duty, is alone the conclusion of the Appellate Controller of Estate Duty. Only to ascertain wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Appellate Controller of Estate Duty, the first two Accountable Persons are full sisters of the deceased and the third Accountable Person is a nephew of the deceased, being the deceased's brother's son. These three were the defendants in the proceedings before the High Court of Justice along with the fourth defendant who is the son of the deceased's sister, the fifth to ninth defendants being the sons and daughter of another sister of the deceased. The judgment itself mentions that all parties had experienced difficulty in contacting and getting information from members of the family who live in various parts of India and Pakistan. The Accountable Persons contended before the High Court for an Indian domicile while the rest of the defendants from fourth to ninth contended for an English domicile. There was no dispute that the deceased's domicile of origin was India. Hence it was for the rest of the defendants to establish that the Indian domicile of origin was replaced by English domicile of choice. 5.2 The presumption that a person continues to be domiciled in the country in which he is domiciled and the burden of proving change of domicile varies to strength according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had an Indian domicile of origin, as did Shaukat. In 1935, he came to England where he studied at Oriel College, Oxford reading law and in due course becoming a barrister. He obtained a B.A. in 1938, a BCL in 1939 and M.A. in 1942. He remained in England throughout the Second World War. In 1946, however, he returned to India and remained there for three years, but this was a period spanning his father's last illness and his death in 1948. By early 1949 he returned to England and lived at Oxford. There are indications that he maintained a close association with his old college. From the end of November 1949 to the beginning of March 1950 he returned to India, but from March 1950 and for the following two years he lived at Oxford and London. In September 1950, he applied for English nationality, giving his address as Oriel College, Oxford, his status as a British citizen without nationality under section 13 of the British Nationality Act, 1948 by reason of his holding a U.K. passport in which he was described as a British subject by birth, and the fact that he had not done any act to acquire citizenship of any country. He stated that he was ordinarily resident in the U.K. and gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentions which had not only been borne out by his previous pattern of life but which were if anything to be reinforced still further by the pattern which he adopted for the rest of his life. It is only after his death that members of his family come on the scene, in particular Nadir, the third defendant, and Saeed, the first Defendant. It is the fact that by letter dated 20th December, 1977 to Price Waterhouse and Co., the Inspector of Taxes stated that his head office had given a ruling as follows : " It is accepted that your late client was not domiciled in the U.K. at the date of death, 20th January, 1975. It follows that he was not domiciled in the U.K. during the period of his stay here prior to death which includes the years from 1970-71. The deceased is regarded as resident and ordinary resident in the U.K. for all years involved ". The matter is, in the High Court's view, put beyond all possible doubt by an affidavit sworn in support of the fourth Defendant's case for an English domicile of choice by a lady possibly of Italian origin but resident in London who with her husband had known Shaukat since about 1960. The contents of the affidavit of Mrs. Aglaia Helen Togna are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inland Revenue of London addressed to the National West Minster Bank who is the plaintiff in the suit before the High Court of Chancery Division, confirmed that the deceased died domiciled in the United Kingdom as decided by the Courts of the United Kingdom and as such his world-wide estate was subject to Estate Duty and that such duty was paid in full and the letter in correspondence might be felt free to use with the Indian authorities. 5.8 Further, as urged on behalf of the Accountable Person according to section 13 of the Code of Civil Procedure, 1908, the foreign judgment has become final and conclusive. Section 13 of the Code of Civil Procedure, 1908 runs as follows :---- " S. 13. When foreign judgment not conclusive.---- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except---- (a) where it has not been pronounced by a Court of competent jurisdiction ; (b) where it has not been given on the merits of the case ; (c) where it appears on the face of the proceedings to be founded on an incorrect view of internati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish that it was appealed against in which an adverse finding was given, the presumption and inference is that it has become final as the onus is on the Revenue to prove it otherwise. 5.11 In fact in strict legal parlance Dr. G.C. Cheshire, a distinguished Jurist, in his treatise on Private International Law, VII Edition at page 564 says as below : " The requirement of finality means that the judgment must be final in the particular court in which it was pronounced (Per Scrutton, L.J. in Beatty v. Beatty 1924 I.K.B. 807 @ 815 and 816). It does not mean that there must be no right of appeal, nor even the stronger fact that an actual appeal is pending in the foreign country, is a bar to an action brought.... " 5.12 We may also further add here that the submission on behalf of the Accountable Person was that the said judgment of the Chancery Division of the High Court of justice had become final as it has not been challenged, which the Revenue could not controvert before us nor any of the facts pertaining to the domicile of the deceased. Further, brushing aside cannot be easily made with reference to the submissions on behalf of the Accountable Persons that no useful pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in a given country, or the absence of any present intention of not residing permanently or definitely in a given country. 5.14. Thus four points as to its character deserve notice : (a) The intention must amount to a purpose or choice. The domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place. As per Lord Westbury in the celebrated case of Udny v. Udny [1869] LR I Sc. Div. 441 (HL), it must not be prescribed or dictated by any external necessity. (b) The intention must be intention to reside permanently, or for an indefinite period. (c) The intention must be an intention of abandoning, i.e., of ceasing to reside permanently in the country of the former domicile. It must be to go to reside in some other place as the new place of domicile or the place of new domicile. (d) The intention need not be an intention to change allegiance. The intention to reside permanently or settle in a country is not the same thing as the intention or wish to become a citizen of that country. 5.15 It would also be relevant to quote Dr. G.C. Cheshire, Member of the Institute of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Sankaran Govindan. But both the parties before us failed to note the fact, which we noticed when we were perusing section 13 of the CPC cited before us, that the aforesaid case travelled to the Hon'ble Supreme Court reported in [1975] 3 SCC 351. While it was dealing with the succession to properties and moneys of an Indian dying intestate in England in 1950 and the question of his domicile of origin and choice as well as the foreign judgment obtained operates as res judicata in the light of section 13 of the Code of Civil Procedure, 1908, on when foreign judgments are not conclusive, section 41 of the Evidence Act, 1872 on relevancy of certain judgments in probate etc., jurisdiction, and Article 5 of the Constitution of India on citizenship at the commencement of the Constitution, it held that it is a well-established proposition in Private International Law that unless a foreign Court has jurisdiction in the international sense, a judgment delivered by that Court would not be recognised or enforceable in India and further that if the foreign judgment was obtained by fraud or if the proceedings in which it was obtained were opposed to natural justice, it will not operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1] 127 ITR 277 (AP). While thus, praying for the determination of the compensation at Rs. 6,19,198 being half of the award in respect of the deceased's share in the immovable property in Civil Lines at Bareilly, it was also brought to our notice that the value of 29/34th share of Shri Nadir Shah Khan, the first accountable person herein, for wealth-tax purposes was determined at Rs. 7,48,200 by the Valuation Officer to whom the reference was made by the Wealth-tax Officer. That the Valuation Officer based his valuation on the compensation awarded by the Special Land Acquisition Officer. That therefore half share of the deceased herein in the Bareilly property should also be taken on the same basis as taken in the case of the first accountable person herein. It was stressed that such a different valuation is against law and propriety of the case. Strength was also drawn further from the decision in the case of Estate of G. Rama Swamy Naidu v. CED [ 1970] 76 ITR 559 (Mad.), holding that the contents of a wealth-tax return order in a wealth-tax assessment proceedings which has become final are relevant material on which reliance can be placed by the Tribunal to decide an issue under t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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