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TMI Blog1963 (12) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... England in 1920 for higher studies in medicine. For some time he received remittances from home; but after his lather's death his elder brother, Padmanabhan, did not send regular remittances and therefore Dr. Krishnan was stranded in England. He met an elderly lady, Miss Hepworth; and she helped him to prosecute his studies. He qualified himself in medicine and started practice at Sheffield and was able to build up a comfortable practice. Subsequently be got employed in the National Health Scheme; and he purchased a building, 75-Wood House Road, Sheffield, where he housed his evening surgery. He was living in a rented house at 97-Prince of Wales Road with Miss Hepworth. He had at the time of his death a private secretary, named Miss Esme Mary Woodliff. 3. In 1946 Dr. Govindan, the 1st defendant, proceeded to England, according to him, with the double purpose to qualify himself for F.R.C.S and to bring back his brother, Dr. Krishnan. He prosecuted his studies in England, for which Dr. Krishnan helped him with money; and ultimately, during the close of 1949, he returned to India. Dr. Krishnan did not accompany him; and he died in England suddenly on 18th October 1950 without l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the assets in Schedule C he was entitled to a half share as granted to him by the High Court of Judicature in England, though he agreed to have the other assets of Dr. Krishnan, viz., the assets in India, both movable and immovable, to be partitioned under the Ezhava Act. The lower Court had disallowed the contentions of the 1st defendant and has directed partition of the assets in Schedule C as well. In appeal the 1st defendant contests the correctness of that decision. 7. According to the lower Court, the decision of the English High Court evidenced by Ex. LVI is not a judgment, because only two out of six prayers made therein were disposed of and no reasons were also given for the conclusions on those two questions. In its view the decisions on those two points are only interlocutory in nature and therefore Ex. LVI is not a final judgment of a foreign Court. The second ground on which the lower Court has rejected Ex. LVI is that it is opposed to natural justice, because the minors were not properly represented in those proceedings. The minors were not represented by their natural guardians, but were represented by the Official Solicitor to the Supreme Court in Engla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, at any rate, the assets of Dr. Krishnan in England were not sought to be partitioned in the suit. It also appears that the plaint was not served on the 22nd defendant. The learned Advocate General contends that because of this lacuna, the administrators were not given an opportunity to substantiate that Ex. LVI was not vitiated by any infirmities. He proceeds to urge that for that reason the findings of the lower Court against the collusiveness of Ex. LVI are vitiated. 10. We do not think that this contention merits serious consideration. The administrators appointed by the High Court in England are not necessary parties to the suit. In pursuance of the proceeding in England, the administrators sold the assets of Dr. Krishnan and handed over the amount to defendants 1 and 2 taking a bond of indemnity from them. The money has thus come into the hands of defendants 1 and 2 and the same is now in deposit within the jurisdiction of the lower Court. We fail to see how and why defendants 22 and 23 should have been given any opportunity to establish the validity or binding nature of Ex. LVI and how the absence of such notice to them could vitiate the findings regarding Ex. LVI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at Puthenkotta Kunnu. The impression we gather by a perusal of these letters is that Dr. Krishnan wanted to come back to India and that he never decided to adopt England as his permanent home. 13. The learned Advocate General explains that these letters written by the 1st defendant were only to console his elder brother, Padmanabhan, and to make him believe that Dr. Krishnan wanted to come back, though the 1st defendant knew for certain that Dr. Krishnan had no such idea. It is also suggested at the bar by the learned Advocate General that the assertion of Dr. Krishnan in his letters that he would come back to India was only to give a threat to his elder brother, Padmanabhan, who was managing the properties obtained by Dr. Krishnan in the family partition and appropriating the income. We are not satisfied that this explanation is sufficient to take away the effect of the expressions of intention made by Dr. Krishnan himself in his letters that he wanted to come back to India. 14. The position in Private International Law is that every person has his domicile of origin and the evidence that is necessary to establish that that domicile of origin is abandoned and a domicile of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Miss Hepworth. Though he had the real and secret intention of returning to India, which was also expressed in his letters to his relations, it was only natural that he expressed a contrary intention in the presence of Miss Hepworth. Thus, the evidence of D. W. 5, even if it is all true, is not sufficient to dispel the impression conveyed by the letters of Dr. Krishnan and the 1st defendant. Therefore, we agree with the finding of the lower Court on this question, that Dr. Krishnan did not discard his domicile of origin and acquire a domicile of choice. 18. The next question for consideration is how far Ex. LVI is final and conclusive and whether it can be ignored for the reasons given by the lower Court, The lower Court has given four reasons for holding that Ex. LVI is not conclusive: they are (1) that Ex. LVI being a pronouncement made by a foreign Court in an action initiated after the present suit was filed, it cannot operate as res judicata; (2) that it is not a judgment at all; because, only two out of six reliefs claimed in Ex. K, the Originating Summons, are decided leaving the others to be heard in Chambers and even those conclusions are only in the nature of inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be noted at this stage: they are (1) that it may be determined whether Dr. Krishnan died domiciled in England or in Travancore; (2) that it be decided whether the plaintiffs therein should appear and take part in this suit commenced in the Court at Trivandrum; (3) that it be determined as to who the legal heirs of Dr. Krishnan and what their shares are; (4) that directions may be given regarding service of proceedings; (5) that administration of the estate of Dr. Krishnan be ordered; and (6) that costs may also be granted. Of those six reliefs claimed only the first and the last were decided in Ex. LVI. It was declared that Dr. Krishnan was domiciled in England at the time of his death; and costs were also allowed. Regarding the other reliefs the Originating Summons was adjourned to be heard in Chambers. So far as the first question relating to the domicile of Dr. Krishnan is concerned, there was a decision of the English High Court and it cannot be said that that decision is not a judgment; and to that extent the reasoning of the learned Subordinate Judge is not right. 22. The next ground in the reasoning of the learned Judge is that the proceedings in which Ex. LVI was ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considers the relevant decisions on the question. So far as this case is concerned, if the plaintiffs succeed in establishing that the English Court was imposed upon or tricked, as a result of which the order in Ex. LVI came to be passed then it is not conclusive. What Section 13(e) of the Code says is that where the foreign judgment has been obtained by fraud , it will not be conclusive; and fraud in this sub-section must have naturally the same meaning, 24. The learned Advocate General contends that until and unless Ex. LVI is got set aside by the English court, the plaintiffs in the present action cannot ignore the decision on the question of Dr. Krishnan's domicil. He draws our attention to a passage at page 153 of Halsbury's Laws of England, 3rd Edn., Vol. 7, to the effect that in order to avail himself of the plea of fraud in a foreign judgment, the party alleging it in England must first obtain a reversal of the foreign judgment, which is conclusively good until reversed. We do not think it is necessary for us to consider whether this position is correct; because Section 13 of the Procedure Code, which admittedly applies to the present case, does not lay down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adras So that effect. Mr. Arksey states further that the grant of administration was obtained in good faith on the assumption that the deceased was believed to be domiciled in England at the time of his death; but as that assumption was not accepted by some of Dr. Krishnan's relatives, the administrators had two courses open to them, namely, either to obtain a ruling from a competent court as to the domicile of Dr. Krishnan or to administer the estate by agreement among all the possible beneficiaries. This indicates how and in what spirit Ex. LVI was obtained from the English court; that is, it was assumed that Dr. Krishnan had English domicile, though the 1st defendant was aware that it was not so. 26. Moreover, Ex. LVI was obtained under Order XI of the Supreme Court Rules, the relevant rule providing for service out of jurisdiction of a writ of summons or notice of a writ of summons in an action for the administration of the personal estate of a deceased person, who, at the time, of his death, was domiciled within the jurisdiction of the English High Court. This again shows that the proceedings were taken on the basis of the English domicile of Dr. Krishnan at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the circumstances of the case. 28. Lastly, we shall consider the contention of the learned Advocate General that even if Dr. Krishnan did not abandon his domicile of origin and acquire a domicile of choice, even then the sale proceeds of house No. 75-Wood House Road. Sheffield should be divided according to the English law, the lex situs. In other words, the contention is that succession to immovable property is to be governed by the law of the land where the immovable property is situate and the position will be the same even if the property is converted into money. 29. In support of this proposition, the learned Advocate General invites our attention to Dicey on Conflict of Laws, 7th Edn Ch. 18, page 512. Rule 85 of Dicey says that all lights over, or in relation to, an immovable (land) are (subject to the Exceptions hereinafter mentioned) governed by the law of the country where the immovable is situate (lex situs). At page 520 Dicey again says that succession to immovables situated abroad, or of money representing such immovables, is determined by whatever system of law the lex situs would apply. The learned author says further that the lex situs determines, among other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and Dicey, page 496). 31. The question whether a particular property is movable or immovable has to be decided under the law of the place where the property is situated. Therefore, if according to the law of England this property, namely the house, is considered, for the purpose of Private International Law, to be immovable, then it goes without saying that the English law of succession must apply to this property. If on the other hand, under the law of England the property is considered, for the purpose of Private International Law, to be movable, then the lex domicilii of the deceased must apply. 32. Mr. P. K. Kurien, the learned advocate of some of the contesting respondents, has drawn our attention to the Administration of Estates Act, 1925 (English Act). Under Section 33 of the said Act the real or personal estate of a person dying intestate shall be held by his personal representatives and the real estate is to be held upon trust to sell the same. Under Section 46(v) of the same Act the mode of succession which will apply to a case like the present is also indicated. Mr. Kurien then draws our attention to the English equitable doctrine of conversion, He invites our at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onversion it was argued by his next of kin by Hungarian law that they were entitled to the interest. The English Court rejected this plea and held that the interest left by the deceased was an immovable and therefore, the next of kin by English law were entitled to it. Russell, J. observed in that case that what the doctrine of conversion said was that real estate had to be treated as personal estate or personal estate as real estate; and not that immovables were turned into movables or movables into immovables. According to the English law the interest left by the deceased in that case, for the purpose of Conflict of Laws, was an interest in an immovable and since the land, though held on trust for sale, was not sold at the time of the death, it was immovable for the purpose of Conflict of Laws and the English law applied to the cast. 35. According to us, the principle that should apply to the house left by Dr. Krishnan in England in the present case is the same. On the finding that Dr. Krishnan had not lost his domicile of origin, his immovable properties in India and all his movables, whether in India or England, should be divided according to the law of succession in India. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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