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TMI Blog1941 (10) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... h property from Schedule 0 as may be necessary to make them a just moiety of three fourths and one-fourth respectively of the entire estate. (c) For a decree that the, plaintiff is entitled to the trusteeship of the charity and to the management of the properties attached thereto described in Schedule B together with what may be added to them on the just ascertainment of one-fourth share for the charities. It is common ground at the Bar that a large part of the properties concerned are immovable properties in Burma, the others being within the jurisdiction of the Court of the Subordinate Judge of Trichinopoly. Paragraph 20 of the plaint states: The cause of action arose at Srirangam, Tiruvanaikoil, Manakkal, etc. villages in the Trichinopoly district, within the jurisdiction of this Court, in, February, 1932 -when Raja Ramanatha Reddi died and when plaintiff became aware of the unfair allotment to Krishnaswami Reddi's share out of Chidambara Reddiar's estate. This plea is technically defective as it does not allege how and where the cause of action arose in terms of Sections 16, 17 and 20 of the Code of Civil Procedure. It is however obvious from a reading of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il, 1937 a total want and absence of jurisdiction in this Court in so far as the said properties are concerned by reason of the separation of Burma from India. An additional issue, No. 33, directly raising the jurisdiction of the Court was framed as follows: Has this Court now jurisdiction in respect of the properties situate in Burma included in the plaint C schedule in view of Section 46 (2) of the Government of India Acts, 1935? The suit was rightly posted for arguments on this issue, because, in the words of the learned Judge in paragraph 2 of his judgment: It was said that a decision on this point will save a lot of oral evidence in the case as the bulk of the properties claimed in this suit are situated in Burma and questions have been raised regarding the ownership of those properties. The learned Judge has decided that he had no jurisdiction to try this suit regarding the movables and immovables situated in Burma. If that decision is right, the plaintiff must commence proceedings again in Burma regarding the property in Burma. The issues in that suit will be, as far as I can judge from a perusal of them, identical with those raised affecting the Indian proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prof. Dicey in the fifth edition of his work on the Conflict of Laws, page 203, which reads as follows: Subject to the exceptions hereinafter mentioned, the Court has no jurisdiction to entertain an action for (1) the determination of the title to, or the right to the possession of, any immovable property situated out of England. The exceptions do not apply in this case. The respondents have therefore relied on this general principle. They contend that on and after the 1st of April, 1937 so far as the jurisdiction of his Court was concerned the Subordinate Judge had no more right to pass a decree relating to immovable property in Burma than he had to order delivery to the plaintiff of a house in Bangkok. The petitioner's contention however is that this general principle, formidable as it may seem, is not applicable to the special circumstances before us. Mr. K.S. Sankara Aiyar has argued that when a supreme Legislature thinks it proper to. separate territories subservient to it into different entities for purposes of rule and administration, there is nothing startling in the proposition that when doing so it should have, for the purpose of tiding over the inevitable dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and prescribe the distribution of legislative and executive powers between the Federation and the Provinces: Provided that no such law as aforesaid shall be made applicable to any Federated State by an Order in Council made under this section. In this section the expression 'law' does' not include an Act of Parliament, but includes any ordinate, order, bye-law, rule or regulation having in British India the force of law. Under this section the Government of India (Adaptation of Indian Laws) Order, 1937, was made by His Majesty in Council. Clause 2 (1) states that the expression 'Indian law' means a law as defined in Section 293 of the Act. Sub-Clause (2) is as follows: The Interpretation Act, 1889, applies for the interpretation of this Order as it applies for the interpretation of an Act of Parliament. The meaning of this sub-clause is clear : Just as the Interpretation Act affects the construction of Acts of Parliament, so equally can it be called in aid in construing the meaning of this Order. Clause (9) of the Order states: The provisions of this Order which adapt or modify Indian laws so as to alter the manner in which, the authority by which, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of that law into accord with the provisions of the said Act, (i) A law passed or made before the said date toy a Legislature or other competent authority in British India, and not previously repealed, is for the removal of doubts hereby declared to be a law in force immediately before that date, notwithstanding that it, or parts of it may not then be in operation, either at all or in particular areas; (ii) any such law which immediately before the said date has extraterritorial effect as well as effect in British India, shall, subject to any such adaptations and modifications as aforesaid, continue to have extraterritorial effect; (iii) the power of His Majesty in Council to make in an existing Indian law such adaptations and modifications as aforesaid shall be deemed to include power to declare any such law, or any part thereof, to be repealed, if it appears to His Majesty in Council that its continuance is unnecessary or inexpedient in view of the provisions of the said Act; (iv) nothing in the said sections shall be construed as continuing any temporary Act in force beyond the date fixed for its expiration. 2. 26 Geo v and 1 Ed. VIII c. 3. Paragraphs (i) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the commencement of Part III of the Government of India Act, 1935, which appears to be the date selected as the dividing line between the old and the new regime. I do not think that the provisions of Part III are relevant. Part III came into operation on the 1st of April, 1937 by the Government of India (Commencement, etc.) Order, 1936. Clause 11 of the Government of India (Adaptation of Indian Laws) Order states that nothing in the order shall affect the previous operation of, or anything duly done or suffered under, any Indian law, or any right, privilege, obligation or liability already acquired, accrued or incurred under any such law, or any penalty, forfeiture, or punishment incurred in respect of any offence already committed against any such law. As to the interpretation of the Act, the Interpretation Act of 1889 is obviously of great importance. The Government of India Act, 1935, repealed the Government of India Act of 1915 wholly, and virtually the whole of the Acts of 1916 and 1919. Section 223 of the Government of India Act specifically provides that the jurisdiction in the existing High Courts shall be the same as immediately before 1st April, 1937. The learned Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent first to refer to the decision of the Judicial Committee in the. Colonial Sugar Refining Co. v. Irving (1905) A.C. 369. The question there involved was whether the right of appeal from the Supreme Court of Queensland to His Majesty in Council had been taken away by the Australian Commonwealth Judiciary Act, 1903, and Lord Mac-naghten at page 372, says this: As regards the general principles applicable to the case there was no controversy. On She one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. on the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of the District Munsif of Madura Taluk. An application for execution was filed on the 27th of July, 1927 in the latter Court without applying for the transfer of the decree from the Melur Court which continued to exist. The question was whether the Madura Court could execute the decree. The Full Bench held that it could not without the decree having been transmitted from the Melur Court and that the Melur Court retained jurisdiction to execute the decree even after the transfer of territorial jurisdiction. Ramesam, J., who delivered the judgment of the Bench, says at page 814: It seems to me that, unless the language of the notification is plain, directions as to future regarding pending business cannot be implied. The Full Bench referred with approval to the decision of Phillips and Venkatasubba Rao, JJ., in Chokkalinga Pillai v. Velayudha Mudaliar AIR1925Mad117 . In that case there was a suit on a mortgage properly brought in the Court of the Subordinate Judge of Kumbakonam, but at the time of the passing of the decree the jurisdiction of this Court had been transferred to Mayavaram. Nevertheless the Kumbakonam Court passed the final decree and the objection w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ang Row, J., and Venkataramana Rao,. J. had to consider whether Section 69, Clause 2 of the Indian Partnership Act was applicable to a suit filed after the passing of the Act to a promissory note executed before the passing of the Act. Pandrang Row, J., took the view that Section 74 expressly saved the suit, Venkataramana Rao, J., taking a different view. Varadaehariar, J., agreed with Pandrang Row, J. Section 74 of the Indian Partnership Act enacts: Nothing in this Act or any repeal effected thereby shall affect or be deemed to affect--(a) any right, title,. interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or (b) any legal proceeding or remedy in respect of any such right, title, interest, Obligation or liability, or anything done or suffered before the commencement of this Act. The learned Judge came to this decision after considering whether Section 74 expressly saved the suit from the operation of Section 69, and, if Section 74 had no such operation, whether on general principles the Court ought to hold that Section 69 does not operate to enforce the cause of action which had accrued prior to the date of the comi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing out the paragraph they observe, This provision appears clearly to contemplate that powers which were exercisable by any authority such as a Court before the Act came into force should continue to be exercised or to be exercisable even thereafter unless some other provision was made by a competent authority regarding the subject matter of the jurisdiction. The learned Judges point out that no other provision had been made and they observe: It seems to us that both the Words and the policy of paragraph 10 of the Adaptation Order referred to above contemplated that the Court to which decrees were transmitted for execution before the 1st April, 1937 should continue to execute those decrees even after the 1st April, 1937 on applications presented to it for execution subsequent to the 1st April 1937. 6. With that decision I am in respectful agreement. 7. The learned Advocate-General has urged that if the view maintained by the petitioner is upheld, a strange position arises under Section 10 of the Code of Civil Procedure, the explanation to which states that the pendency of a suit in a foreign Court does not preclude the Courts in British India (British Burma) from try ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land is distinct. Order 11, rule 1 of the Rules of the Supreme Court makes provision for the issue of writs beyond the jurisdiction. There is no provision exactly corresponding to Section 17 of the Civil Procedure Code. Order 11, rule 1, by implication, prohibits the issue of a writ out of the jurisdiction unless in the case of land the whole subject matter is situate within the jurisdiction. The difficulty or apparent difficulty arises in this case from the fact that a supreme Legislature has thought fit to make the far-reaching changes over territories subservient to it. It is not a case of cession of territory to a foreign state, It is a re-arrangement within the Empire. The supreme rule remains. The British Legislature had absolute authority within its own territorial limits to dispose of the rights of its subjects and all property within its limits--the law of eminent domain, a phrase of public international law. The British Legislature cannot legislate with regard to the rights of Britons in the Courts of e.g. Thailand and when it is argued that the foundations of private international law and indeed commonsense are shaken when it is suggested that a British Court might just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it did not give jurisdiction over land in Kolhapur State. It is therefore from the Code that the Court of the Subordinate Judge' of Trichinopoly derives its- jurisdiction. So far as the procedure governing trial is concerned, it is also derived from the Code. But jurisdiction and procedure are distinct, and I hold that the former, i.e., jurisdiction does not come under the description of processual matter. It seems to me that Lord Macnaghten's statement of the law in the Colonial Sugar Refining Co. v. Irwin (1905) A.C. 369 is entirely applicable to the facts in this petition. I see no reason to distinguish in principle between the action with which we are concerned now and the appeal with which their Lordships of the Judicial Committee were concerned. The reports of the arguments of the distinguished counsel who appeared before the Board show that no attempt was made to make any such distinction. Mr. Asquith, counsel for the petitioner, argued that the alteration made by this section was one of procedure and did not affect private rights and therefore took effect with reference to 'pending actions'; and Mr. Cohen for the appellants contended that there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Government of India Act, 1935, a certificate will issue in accordance with the provisions of Section 205 of that Act. There will be an interim stay of hearing until the 5th January, 1942. If by then an appeal to the Federal Court has not been lodged, the proceedings will continue. Otherwise the stay will continue pending the decision of the Federal Court. Kunhi Raman, J. 9. An interesting question of constitutional law arises for decision in this civil revision petition. The suit out of which the petition arises was filed in the Court of the Subordinate Judge of Trichinopoly in 1932 and it was registered as O.S. No. 55 of 1932. Unfortunately, it has had a chequered career. Had the trial proceeded in the normal course, the suit would have been disposed of prior to the 1st April, 1937, and the plaintiff would not have had to face the contentions which were urged in the Court below and which are now urged before this Court on behalf of the defendants. We are told that as the result of a certain order in an interlocutory application which became the subject-matter of a civil revision petition in this Court in 1935 and as the result of a dispute as to the proper court- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive right and not merely a matter of procedure or pro-cessual law. If the right involved is not of this nature but affects only a rule of procedure, then there cannot be any doubt as to the retrospective effect of Section 46 (2) of the Government of India Act, 1935. But if, on the other hand, the right affected concerns a rule of substantive law, as I feel no doubt it does in the present case, then different considerations must prevail and the newly enacted statute cannot prima facie be presumed to be retrospective in its effect. 11. It must be stated that in the present case at the time when the suit was instituted in the lower Court, there was no doubt whatsoever that it had jurisdiction to entertain the suit and try it. It is by the coming into force of Section 46 (2) of the Government of India Act, 1935, on the 1st April, 1937, that it has become possible, for the defendants to contend that the lower Court has no jurisdiction to go on with the trial of the suit. 12. It is, argued by the petitioner's learned advocate that the suit in the present case which was properly instituted on the date the plaint was filed in the lower Court could be continued as if the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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