9911796707
TMI Blog1974 (4) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... ces for prosecuting his studies. He received considerable encouragement and financial help for carrying on his studies from an elderly English lady by name Miss Hepworth. When Krishnan became qualified to practise medicine, he set up practice at Sheffield and in course of time he was able to build up a good practice. He was later employed in the National Health Scheme. He purchased a building viz., 75-Wood-house Road, Sheffield, where he carried on his profession. He was living in a rented house at 97-Pfince of Wales Road with Miss Hepworth. He had, at the time of his death, a private secretary named Mary Woodliff. 3. The first defendant-appellant came to England both for the purpose of qualifying himself for F.R-C.S. and for taking back Krishnan to India. He prosecuted his studies in England for which Krishnan helped him with money and, by the end of 1949, he returned to India. Contrary to his expectation, Krishnan did not accompany him. Krishnan died suddenly in England on October 18, 1950 intestate. He had no wife and children and his assets in England consisted of the house at 75-Woodhouse Road, Sheffield, valuable movable properties and moneys. 4. While Krishnan was away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, that the proceedings which culminated in ex. 56 order were opposed to natural justice and so ex. 56 order did not operate as res judicata and directed a partition of the amount specified in Schedule-C also according to the provisions of the Ezhava Act. 10. It was against this decree that the appeal was preferred to the High Court by the first defendant. 11. Before the High Court, the appellant contended, among other things, that ex. 56 order operated as res judicata on the question of domicile of Krishnan and that as Krishnan died domiciled in England, succession to his movables including moneys would be governed by English law and that, in any event, succession to the immovable property in England would be determined by the lax situs. 12. The High Court confirmed the finding of the trial court that Krishnan was not domiciled in England, that ex. 56 order was obtained by fraud of the appellant, that the proceedings in which ex. 56 order was obtained were opposed to the principles of natural justice and therefore, ex. 56 order would not operate as res judicata on the question of domicile of deceased Krishnan. The Court further found that Krishnan did not acquire a domici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first defendant stating that Krishnan had left movable properties worth considerable amount in England and that his intention was to settle down in England and that he had expressed that intention to her (ex. 12). On November 27, 1950, Arksey wrote a letter to the first defendant stating that he knew that Krishnan was domiciled in England, and asking the first defendant about the assets which Krishnan had in India (ex. 44). On September 25, 1951, Arksey sent a letter to Damodaran, the husband of the first daughter of defendant No. 2 (ex. H) indicating the assets of Krishnan in England and that letters of administration were obtained in good faith on the basis that Krishnan had died domiciled in England and that he was instructed by M/s. King and Partridge that according to the Constitution of India, Krishnan would be deemed to have died domiciled in England and that the first defendant and his sister would? be the legal heirs of Krishnan if he had died domiciled in England. 18. After having obtained the letters of administration, the administrators, namely Arksey and Mary Woodliff, found that there was dispute among the patties to the, suit about the domicile of Krishnan at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and projects of Krishnan whether he was domiciled in England. Krishnan was living with Miss Hepworth. We do not think there was any one more intimate with Krishnan than Miss Hepworth. It was not a matter of any moment to her whether Krishnan died domiciled in England or not. She did not stand to gain in any manner by establishing that Krishnan was domiciled' in England. She not only filed an affidavit in the proceedings but also was orally examined. Can anybody characterize her evidence as procured or false ? 20. Domicile is a mixed question of law and fact and there is perhaps no chapter in the law that has from such extensive discussion received less satisfactory settlement. This is no doubt attributable to the nature of the subject, including as it does, inquiry into tie animus of persons who have either died without leaving any clear record of their intentions, but allowing them to be collected by inference from acts often equivocal; or who, being alive and interested, have a natural tendency to give their bygone feelings a tone and colour suggested by their present inclinations. See Bell v. Kennedy (1868) L.R. 1 Se Div. 30 . The traditional statement that, to establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in England, that he did not renounce his domicile of origin and acquired a domicile of choice and therefore, this Court should hold that ex. 56 order was obtained by fraud. 22. The nature of fraud which vitiates a judgment was explained by De Grey, C. J. in The Duchess of Kingston's Case [Smith's Leading Cases, 13th ed., 88, 641 at 651]. He said that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was mistaken, it might be shown that it was misled. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely that on the merits, the decision was one which should not have been rendered, but that it can be set aside if the Court was imposed upon or tricked into giving the judgment. 23. We make it clear at the outset that we do not propose to discuss the circumstances under which a domestic judgment can be set aside or shown to be bad on the ground of fraud or to indicate the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom what it was . 25. In Vadala v. Lawes [1890] 25 Q.B.D. 310 the plaintiff sued the defendant in Italy for the non-payment of certain bills of exchange which had been accepted by the defendants' agent acting under a power of attorney. The principal defence raised in the action was that the bills, which purported to be ordinary commercial bills, were given in respect of gambling transactions without the defendant's authority. The defence was tried on its merits by the Italian court, but failed, and judgment was entered for the plaintiff. The plaintiff then brought an action in England on the judgment. Again, no new evidence was adduced. Lindley, L.J. said that if the fraud upon the foreign court consists in the fact that the plaintiff has induced that court by fraud to come to a wrong conclusion, the whole case can be reopened although the court in England will have to go into the very facts which were investigated, and which were in issue in the foreign court and that the fraud practised on the court, or alleged to have been practised on the court, was misleading of the court by evidence known by the plaintiff to be false. The learned judge also said that there are two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Indian court the possibility that the defendants might have a defence under the Indian usury laws. Lord Cohen who delivered the judgment said in answer to the proposition of counsel to the effect that where a judgment is sought to be set aside on the ground of fraud, the fraud must have been discovered by the applicant since the date of the foreign judgment: Be that as it may, counsel's real difficulty is in his fourth proposition. For it he relied on Boswell v. Cooks (1884) 27 Ch. D. 424; subsequent proceedings, sub nom,, Boswell v. Cooks No. 2 (1894), 86 L.T. 365, a decision of the House of Lords applied in Birch v. Birch (86 L.T. 364). These cases no doubt, establish that in proceedings to set aside, an English judgment the defendants cannot ask for a re-trial of the issue of fraud as between them and the plaintiff on facts known to them at the date of the earlier judgment, but in cases under Section 4, the question is not one of fraud on the plaintiff, but of fraud on the court, and it seems to us to be clearly established by authority binding, on us that, if the defendant shows a prima facie case that the court was deceived, he is entitled to have that issue tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le it is clear that a foreign judgment may be attacked on the ground of fraud in its procurement, it is not clear how far this doctrine goes. Abouloff v. Oppenheimer (supra) and Vadala v. Lawes (supra) were referred to by the Supreme Court of the United States in Hilton v. Guvot 159 U.S. 113, where Gray J. said : Whether those decisions can be followed in regard to foreign judgments, consistently with our own decision as to impeaching domestic judgments, for fraud, it is unnecessary in this case to determine . The matter is open, though Goodrich points out that there is no American case in which the plea of fraud has permitted re-examination of the very matters determined in the original suit. 65 LQR 82 29. According to Cheshire, the effect of the judgments in Abouloff v. Oppenheimer, Vadala v. Lawes and Syal v. Heyward (supra) is that the doctrine as to the collusiveness of foreign judgments is materially and most illogically prejudiced see Private International Law, 8th Ed. P. 654. 30. Although there is general acceptance of the rule that a foreign judgement can be impeached for fraud, there is no such accord as to what kind of fraud is sufficient to vitiate a foreign ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 107: One is constrained to the conclusion upon an examination of the authorities that there is jurisdiction in the court to entertain an action to set aside a judgment on the ground that it has been obtained through perjury. The principle I conceive to be this : such jurisdiction exists but in the exercise of it the court will not permit its process to be made use of and will exert the utmost care and caution to prevent its process being used for the purpose of obtaining a re-trial of an issue already determined, of an issue which transmit in res judicata, under the guise of impugning a judgment as procured by fraud. Therefore the perjury must be in a material matter and therefore it must be established by evidence not known to the parties at the time of the former trial. As Garrow, J. said in Jacobs v. Beaver (supra), the fraud relied upon must be extrinsic or collateral and not merely fraud which is imputed from alleged false statements made at the trial which were met with counter-statements and the whole adjudicated upon by Court and so passed into the limbo of estoppel by the judgment. That estoppel cannot be disturbed except upon allegation and proof of new and mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16, 1939, Krishnan writes Ex. 6 letter to Chellamma saying that he will take revenge on Padmanabhan and that he will come back within 10 years. Mrs. Padmanabhan died in 1941. Govindan, the first defendant went to England in 1946. Exs. 8 and 10 written on the same day i.e. July 1, 1946, by the first defendant to Padmanabhan would indicate that Krishnan was making good income, that he would return to Travancore within 5 years. In Ex. 1 (a) letter Krishnan states to Padmanabhan on July 1, 1946 that he is reluctant to give up his practice and waste his time in Trivandrum and that is the reason why he wants to stay in England but he hopes to return and settle down in Trivandrum permanently. In Ex. 2 letter dated July 21, 1946, the first defendant informed Padmanabhan that Krishnan says that he is against the idea of coming to India and returning to England and that he is bitter to Padmanabhan for not sending him money when he was in need. This is in answer to ex. 46 letter sent by Padmanabhan to the first defendant stating whether Krishnan can be persuaded to come to Travancore and return to England. In Ex. 9 letter dated February 4, 1948 sent by the first defendant to Padmanabhan from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 164.: It is impossible to lay down any positive rule with respect to the evidence necessary to prove intention. All that can be said is that every conceivable event and incident in a man's life is a relevant and an admissible indication of his state of mind. It may be necessary to examine the history of his life with the most scrupulous care, and to resort even to hearsay evidence where the question concerns the domicile that a person, now deceased, possessed in his lifetime. Nothing must be overlooked that might possibly show the place which he regarded as his permanent home at the relevant time. No fact is too trifling to merit consideration. Nothing can be neglected which can possibly indicate the bent of Krishnan's mind. His aspirations, whims, prejudices and financial expectation, all must be taken into account. Undue stress cannot be laid upon any single fact, however impressive it may appear when viewed out of its context, for its importance as a determining factor may well be minimised when considered in the light of other qualifying event. It is for this reason that it is impossible to formulate a rule specifying the weight to be given to particular evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y adducing evidence which they knew was false or induced any person or witness to give false evidence or file any false affidavit. Nor could it be said that the English Court was misled by what the first defendant said about the domicile of Krishnan, as persons who were more competent to speak about the domicile of Krishnan had filed affidavits and tendered oral evidence to the effect that Krishnan died domiciled in England. 37. If that be so, the further question is whether the proceedings in which ex. 56 order was obtained were opposed to natural justice. It was contended that notices of the proceeding which culminated in ex. 56 order have been served on the minors through their natural guardians, that natural guardians were not appointed as guardians ad litem and therefore, the proceedings were opposed to principles of natural justice. In other words, the argument was, that, since the natural guardians on whom the notices of the proceedings were served were not appointed as guardians ad litem of the minors, they had no opportunity to contest the proceedings on behalf of the minors and so the proceedings were opposed to natural justice. 38. We do not think that there is any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the prevailing notion of fairplay. And, when the natural guardians evinced their intention not to contest the proceedings by not putting any appearance on behalf of the minors, we think the requirement of natural justice was satisfied when the court appointed an officer of the court to be guardian ad litem of the minors in the proceedings. 39. Counsel for the respondents raised a new point not taken either before the trial court or High Court and that is that as the minors did not submit to the jurisdiction of the English Court, that court had no jurisdiction so far as they were concerned and the declaration in ex. 56 order would not operate as res judicata as respects them. 40. Now, 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 recognized or enforceable in India. The guardians of the minors did not enter appearance on behalf of the minors and so it cannot be said that the minors through the guardians submitted to the jurisdiction of the English Court. 41. The practice illustrated by Order 11 of the English R.S.C., under which the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in this general context, the Court of Appeal in Travers v. Holley [1953] 2 All E.R. 794 acted on the basis of reciprocity and held that what entitles an English court to assume divorce jurisdiction is equally effective in the case of a foreign court. In a later case (Re Trepca Mines Ltd. [1690] 1 W.L.R. 1273, 1281-82; Hodson, LJ. observed that Travers v. Holley was a decision limited to a judgment in rem in a matter affecting matrimonial status, and it has not been followed, so far as I am aware, in any case except a matrimonial case . See Cheshire's Private International Law, 8th ed., pp. 634-635. 45. The question was again considered in Societe Cooperative Siametal v. Titam International Ltd. [1966] 1 Q.B. 828 The facts in the case were : To, an English company, sold to a Belgian company, S., a quantity of steel and it was a term of the contract that T. would ship the steel to an Italian company, who had purchased it from S. The Italian company was 'not satisfied with the quality of the steel and brought proceedings in a Belgian court against S. S. joined T. to those proceedings and served notice of the proceedings on T. in England. T. look no part in the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judges who decided the case. Perhaps they were more inspired by the horror matrimonii claudicantis, the need for preventing limping marriages of which I think English specialists in marriage law such as Hodson L.J. are very much aware. 49. Mr. Sarjoo Prasad for the appellant contended that a judgment or order declaring domicile of a person is a judgment in rem and in the proceedings to obtain such an order of judgment, notice need not be served upon all persons affected by the declaration or determination. A judgment in rem determines the status of a person or thing 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 determines the destiny of the res itself and binds all persons claiming an interest in the res. Mr. Sarjoo. Prasad submitted Unit although domicile in the abstract is not res it savours of res like marriage and, therefore, a determination or declaration of the domicile of a person is a judgment which is binding on the whole world and any failure to serve the notices upon the minors or their failure to appear in court in pursuance to the notices is quite imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, therefore, is that so far as the major respondents in ex. 56 proceedings were concerned, the court had jurisdiction since they submitted to its jurisdiction and the decision of the court would operate as res judicata. But, so far as the minor respondents to those proceedings are concerned, we are of the view, on the evidence in this case which we have already discussed in detail, that Krishnan had no settled or definite intention to return to Travancore and that, as he was a resident in England and as his acts and conduct were consistent only with his intention to make it his permanent home, he died domiciled in England. 53. We think that the High Court was right in its conclusion that the sale proceeds of the house in Sheffield has to be distributed accordingly to the English law. To this extent we uphold the judgment of the High Court but set it aside in other respects. 54. In the result, we hold that the succession to the amount specified in Schedule-C minus the amount which represents the sale proceeds of the house property in Sheffield must also be governed by English law and that the amount must be distributed between the first and second defendants in equal shares. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
