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PETITIONER: R.   VISWANATHAN

       Vs.

RESPONDENT: RUKN-UL-MULK SYED ABDUL WAJID

DATE OF JUDGMENT: 04/05/1962

BENCH: SHAH, J.C. BENCH: SHAH, J.C. DAS, S.K. HIDAYATULLAH, M.

CITATION:  1963 AIR    1            1963 SCR  (3)  22  CITATOR INFO :  RF         1972 SC 414  (12)  RF         1975 SC 105  (51)  RF         1990 SC1480  (54)

ACT: Foreign  Judgment How far  binding-If  affects  properties outside jurisdiction of foreign Court-Proceedings in foreign Court-Natural  justice,  violation  of-Proof-If  "coram  non judice"-Scope  of enquiry-Hindu Law--Joint family  property- Disposal  by  Will-Code of Civil Procedure, 1908 (Act  V  of 1908), s. 13.

HEADNOTE: One  Ramalingam died at Bangalore leaving a will whereby  he devised considerable immovable and movable properties in the States  of  Mysore and Madras.  The  executors  applied  for probate  of  the  will and it was granted  by  the  District judge,  Bangalore, Shri P. Medappa.  Thereupon the  sons  of Ramlingam  instituted  two  suits  in  the  District  Court, Bangalore and the District Court Civil and Military  Station for possession of the immovable properties in Mysore and the movable  properties  devised by the will and a suit  in  the Madras  High Court for possession of movable  and  immovable properties in Madras devised by the will     The     movable included certain shares of the India Sugars  and  Refineries Ltd., a company with its registered  office  at  Bellary  in the  State  of Madras.  The suits were based on  the  ground that  all  the properties were joint family  properties  and Ramalingam  had no power to dispose of the property  by  his will.   The Madras suit was stayed pending the  disposal  of the  Bangalore  Suits.  The District  judge,  Bangalore  who tried  the  suit  after the retrocession of  the  Civil  and Military  Station Bangalore, decreed the suit  holding  that the property devised by the will was of the joint family  of Ramalingam  and  his sons and the will was on  that  account inoperative.  The executors preferred appeals to the  Mysore High  Court  which  were  heard by  a  Bench  consisting  of Balakrishanaiya  and Kandaswami Pillai,JJ, Balakrishanaiy  a J., delivered a judgment allowing the appeals and Pillai J., delivered  a  judgment dismissing  the  appeals.   Thereupon Balakrishanaiya  J.  referred the appeals to a  Full  Bench.

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The  Full  Bench  consisting of P. Medappa,  Acting  C.  J., Balakrishanaiya  and Mallappa, jj., allowed the appeals  and dismissed  the suit holding that the property was  the  self acquired property of Ramalingam and lie could dispose it 23 of  by  his  will.   Thereafter,  in  the  Madras  suit  the executors  urged that the judgment of the Mysore High  Court was binding upon the parties and the suit was barred as  res judicata.  The plaintiff contended that as to the immovables in Madras the Mysore Court could not and did not  adjudicate upon  their claim and that in any event the Mysore  judgment which  was  a  foreign judgment was not  conclusive  as  the proceedings in the Mysore High Court were opposed to natural justice  within  the meaning of s. 13 of the Code  of  Civil Procedure   because  Medappa,  Acting  C.  J.,   and   Bala- krishanaiya,  J., showed bias before and during the  hearing of the appeals and were incompetent to sit on the Full Bench and  their judgment was coram non judice.  The  Trial  judge held  that the judgment of Mysore High Court was  coram  non judice  and was nonconclusive under s. 13 of the  Code  and that all the properties movable and immovable disposed of by Ramalingam  belonged to the joint family and he  accordingly decreed the suit.  On appeal the High Court held that it was not  established  that the Mysore Full Bench was  coram  non judice,  that  the  properties in  suit  were  joint  family properties which Ramalingam was incompetent to dispose of by his  will,  that  the Mysore judgment  did  not  effect  the immovable  in Madras but it was conclusive with  respect  to the   movables  even  outside  the  State  of   Mysore   and accordingly  modified  the  decree of  the  trial  Court  by dismissing  the  suit  with respect to  the  movables  which consisted mainly of shares of the India Sugars &  Refineries Ltd. Held (per Das and Shah, jj.), that the Madras High Court was right  in decreeing the plantiffs’ suit for possession  with respect  to the immovable property in Madras and  dismissing it with respect to the movable property. The  judgment  of the Mysore High Court was  not  conclusive between  the parties in the Madras suit with respect to  the immovable  properties  in  Madras but  was  conclusive  with respect to the shares of the Company in the State of Mad-as. A foreign Court has jurisdiction to deliver a judgment  in rem  which may be enforced or recognised in an Indian  Court provided that the subject matter of the action is  property, whether movable or immovable within the jurisdiction of that Court.   The  Mysore  Courts were not competent  to  give  a binding  judgment  in  respect  of  the  immovable  property situate in the State of Madras nor did they in fact give any judgment with respect to immovable property outside Mysore. But  there is no general rule of private  international  law that  a  court  can in no  event  exercise  jurisdiction  in relation 24 to  persons, matters or property outside  its  jurisdiction. The Mysore Courts were competent to give a binding  judgment in respect of the shares.  The claim in the Mysore suit  was for the adjudication of title of the plaintiffs against  the executors  who  had wrongfully possessed themselves  of  the shares.   Though  in  dispute between the  company  and  the share-holders  the  situs of the shares was  the  registered office  of  the  Company in Bellary (outside  the  State  of Mysore) the share certificates must be deemed to be with the executors.  A decree could properly be passed by the  Mysore Courts  against  the  executors for the  retransfer  of  the shares.   The Mysore Courts were not incompetent to grant  a

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decree directing the transfer of the shares and such  decree was binding on the parties for the Madras suits. It  is  not necessary for the conclusiveness  of  a  foreign judgment  that  that  judgment should  have  been  delivered before the suit in which it is pleaded, is instituted. The Madras High Court could not investigate the property  of the procedure followed in the Mysore High Court in referring the  case  to the Full Bench and the judgment  of  the  Full Bench  was not exposed to the attack of want  of  competence because   the  case  was  referred  after  the  two   judges constituting  the  Bench. had delivered separate  and  final opinions of the points in dispute.  Whether the procedure or a  foreign  Court  which does not offend  rules  of  natural justice  is proper, is for the foreign court to  decide  and not  for the court in which the foreign judgment is  pleaded as conclusive. To  be  conclusive  a foreign judgment must be  by  a  Court competent both by the law of the State which has constituted it and in an international sense, and it must have  directly adjudicated   upon   the  "matter"  which  is   pleaded   as res judicata.  The expression "matter" is not equivalent  to subject matter : it means the right claimed.  To be  conclu- sive the judgment of the foreign Court must directly adjudi- cate  upon the matter.  The Mysore judgment  was  conclusive only  with  respect to the matters actually decided  by  it. The  suit  as  framed did not relate to  succession  to  the estate  of  Ramalingam, nor did it relate  to  the  personal status  of  Ramaligam  and his sons.   The  dispute  related primarily  to the character of the property devised  by  the will  and  the Mysore Court held that the  property  devised under  the  will  was self acquired property ;  it  did  not purport to adjudicate on any question of personal status  of the parties to the dispute before it. 25 It was not established that the judgment of the Mysore  Full Bench  was croam non judice.  In view of cl. (d) of s. 13  a foreign  judgment  is not conclusive if the  proceedings  in which  it  was obtained are opposed to natural  justice.   A judgment  which is the result of bias or of impartiality  on the  part of a judge, will be regarded as a nullity and  the trial as coram non Judice. The Court will always presume, in dealing with the  judgment of  a  foreign courts, that the procedure followed  by  that court  was fair and proper and that it was not biased,  that the court consisted of Judges who acted honestly and however wrong  the decision of the Court on the facts or law  appear to  be, an inference of bias, dishonesty or unfairness  will not  normally be made from the conclusions recorded  by  the Court upon merits. The  estate  devised under the will was the  estate  of  the joint family of Ramalingam and his sons.  The finding of the Madras  High  Court  to this effect  was  supported  by  the evidence  on  the record.  Prima facie the findings  of  the High  Court,  are findings of fact, and  the  Supreme  Court normally does not enter upon a reappraisal of the  evidence, but in this case it entered upon a review of the evidence on which they were founded as the Mysore High Court bad on  the identical issue about the character of the property  devised under  the  will  of  Ramalingam  arrived  at  a   different conclusion. Per  Hidayatullah, J.-The judgment of the Full Bench of  the Mysore High Court was not coram non Juice and was binding on the  Madras High Court in so far as it negatives the  right, of the coparcenary in the Kolar Cold field business and held it to be separate property of Ramalingam.

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The question whether the Full Bench of the Mysore High Court had  violated  principles  of  natural  justice  during  the hearing of the appeal, could not be considered by the Madras High Court as if it was sitting in an appeal over the Mysore High  Court,  and the refusal of the Mysore  High  Court  to adjourn  the  hearing to enable the appellants to  bring  an outside  counsel  did not violate any principle  of  natural justice, as they had already three other counsel briefed  in the appeals.  In accordance with the practice of the  Mysore High  Court, the appeals had been properly referred ’to  the full Bench by the Division Bench.  A foreign Court will  not lightly  hold  that the proceedings in  another  court  were opposed to natural justice. 26 The rule of law about judicial conduct is as strict    as it is old.  No judge can be considered to be competent to  hear a  case in which is directly or indirectly  interested.    A proved  interest  in a judge not only disqualifies  him  but renders his judgment a nullity.  But nothing has been proved in the present case to establish this interest. The objection to the jurisdiction of the’ Court in a foreign country  on other than international considerations must  be raised   in  the  country  where  the  trial   took   place. Objections to it internationally can be raised in, the Court in  which  the  judgment  is  produce. But,  even  if  the objection  to the jurisdiction be raised in the court  where the judgment is produced, that court will consider in action in rem, whether the court has jurisdiction over the  subject matter  and the defendant and also in actions  in  personam, whether  the  jurisdiction was possessed  over  the  subject matter  and  the parties.  In dealing with the  question  of foreign  judgments, Indian Courts have to be guided  by  the law  as codified in this country.  Section 13 of  the  Civil Procedure  Code make a judgment conclusive as to any  matter directly adjudicated between the same parties or between the parties  under  whom they or any of  them  claim  litigating under  the  same title.  There is no real difference in  so far as competency of a foreign court goes between action  in rem actions in personam.  The subject matter of  controversy in the Mysore Courts was the status of Ramalingam who was  a subject and resident of Mysore State.  His will made in that jurisdiction  was admitted to probate there.  His  sons  and other  relatives  who  figured  as  parties  and  those   in possession of the property were in that State.  It is  clear that the Mysore Courts were competent internally as well  as internationally to decide about the status of Ramalingam  or the  rights in the Kolar Gold Fields business between  these parties.  The same questions were raised in the Madras suit. The question for determination was the effect of the  Mysore judgment  upon  the suit in Madras in view of s. 13  of  the Code.  Section 13 of the Code contemplates both judgments in rem and Judgments in personam.  The matter relating to Hindu co-parcenary  and  the. position of Ramalingam  were  really question   of  status.   The  Mysore  Courts  had   directly adjudicated  that Ramalingam was not carrying on  the  Kolar Gold Fields business as co-parcener but as his. own separate business and this adjudication was binding on the parties in the  suit at Madras.  The decision of the Mysore High  Court with respect of the status of Ramalingam vis a vis the Kolar Gold Field business must be regarded in the Madras suit as a conclusive adjudication.  The Madras 27 Court  could not try the question of Ramalingam’s status  de novo  and that part of its decision, which went  behind  the adjudication  of the Mysore High Court, was  without  juris-

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diction.  On this finding the immovable properties in Madras were  also  the separate properties of Ramalingam  which  he could  dispose of by will, if they were the product  of  the Kolar Gold Field business.  The only question that could  be tried  at Madras was whether they were.  The  Mysore  Courts were  competent to order the share scrips to be handed  over to  the successful party and if necessary to order  transfer of the shares and its judgment in regard to them was binding in the Madras Courts.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 277 to  283 of 1958. Appeals  by certificate from the judgment and decrees  dated December 15, and October 20, 1954, of the Madras High  Court in  Original  Side Appeals Nos. 127, 1.53, 156  and  158  of 1953. S.   T. Desai and B. R. L. Iyengar, for the appellants in C. As’ Nos. 277, 279, 281 and 282/58 and respondents Nos. 1  to 3 in C. A. No. 278/58. M.   C.  Setalvad, Attorney-General of India, M.K.  Nambiar, E. V. Mathew, J. B. Dadachanji, S. N. Andley, Rameshwar Nath and  P. I,.  Vohra, for the appellants in C. As.  Nos.  278, 280  and 283/58 and respondents in C. A. Nos. 277, 279,  281 and 282/58. Ratna Rao and K. R. Choudhry, for the respondent No. 6 in C. A. No. 278/58. B.   R. L. Iyengar, for respondents in C. A. No. 280/58  and respondent No. 1 in C. A. No. 283/58. S.   Venkatakrishnan, for respondent No. 2 in C.  A.     No. 283/58. 1962.   May  4.  The  Judgment of  Das  and  Shah,  JJ.  was delivered  by Shah, J., Hidayatullah, delivered  a  separate judgment. SHAH,  J.--Ramalingam Mudaliar-a resident of  Bangalore  (in the former Indian State of 28 Mysore)-started life as a building contractor.  He prospered in  the  business  and acquired an  extensive  estate  which included  many houses in the Civil and Military  station  at Bangalore,  in  Bangalore  city and also  in  the  towns  of Madras,  Hyderabad  and.   Bellary.   He  dealt  in  timber, established  cinematograph  theatres, obtained  a  motor-car selling  Agency  and  made investments  in  plantations  and coffee  estates.   He  set up a  factory  for  manufacturing tiles, and later floated a sugar company. The Indian  Sugars &  Refineries  Ltd., of which he became the  Managing  Agent and  purchased  a  large block of shares.   For  some  years before his death Ramalingam had taken to excessive drinking, and  was  subject to frequent coronary attacks.   He  became peevish and easily excitable and his relations with his wife and   children   were  strained.   Ramalingam   felt   great disappointment  in his eldest son Vishwanatha  who  borrowed loans  from money-lenders at exorbitant rates  of  interest, attempted  to  evade  payment of  customs  duty,  failsified accounts and otherwise exhibited utter lack of business  of capacity."’  Ramalingam  had developed a  violent  antipathy towards a sadhu named Ramaling swami, but his wife  Gajambal and  his children persisted in attending upon the sadhu  and visited  him  frequently.   This led  to  frequent  quarrels between  Ramalingam and his wife and  children.   Ramalingam stopped the allowance for household expenses, and  cancelled the  power  which  he had given to  his  son  Vishwanath  to

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operate  on the joint Bank account.  Shortly thereafter,  he left  the family house.  On June 2, 1942, his wife  Gajambal presented  a  petition  before  the  District  Judge,  Civil Station  Banglore,  for  an  order  against  Eamalingam  for inquisition   under   the  Indian  Lunacy  Act.    On   that application  evidence  was directed to be recorded  and  the District Judge called for a medical report as to Abe  mental condition of Ramalingam. 29 In  the  meanwhile,  Ramalingam  executed  his  will   dated September  10, 1942.  By this will he made no provision  for his eldest son Vishwanath, to each of other two sons and  to Thygaraja,  son  of Viahwanath be  gave  immovable  property valued  at  Rs.  55,000/-and  shares of  the  value  of  Rs. 20,000/in  the Indian Sugars & Refineries Ltd.  To his  wife Gajambal  he gave life interest in three houses  then  under construction  with remainder in favour of Thygaraja, son  of Vishwanath,  and  till  the  construction  was  completed  a monthly  allowance  of Rs. 150/-.  To five out of  his  nine daughters he gave cash and immovable property  approximately of  the value of Rs. 25,000/- each and to three others  cash amounts  varying  between  Rs. 5,000/-  to  Rs.  7,500/  and excluded  Bhagirathi,  his  daughter,  altogether  from  the benefit  under  the will.  He also made  provision  for  the marriage  expenses for his unmarried daughters and  provided for payment of Rs. 5,000/- to Mukti, daughter of Bhagirathi. Out  of the remaining estate, he directed that Rs.  50,000/- be spent in erecting a Gynaecological ward in the Vani Vilas Hospital,  Bangalore, and stop the balance of the estate  be invested  in  a  fund, the income whereof  be  applied  "for encouragement  and development of industries,  education  or medical research, diffusion of medical knowledge,  including work  in  nutrition and dietry by the grant  of  scholarship etc."  The  executors  of the will were  A.  Wajid  (retired Revenue Commissioner of  the  Mysore  State),  Narayanaswamy Mudaliar and S.     L.  Mannaji  Rao.   Ramalingam  died  on December 18    1942,    leaving    him    surviving    three sons-Vishwa-nath, Swaminath and Amarnath-his widow  Gajambal and  nine daughters.  The executors applied to the  District Court,  Civil & Military Station, Bangalore, for probate  of the will dated September 10, 1942.  The widow and,  children of Ramalingam entered caveat and the application ’was 30 registered as Original Suit No. 2 of 1943.  Mr. P.  Medappa, who was then the District Judge dismissed the caveat and  by his  order dated Nov. 27 1943, granted probate of the  will. An appeal against the order to the Court of the Resident  in Mysore,  was  dismissed on July 5, 1944.   Leave  to  appeal against  that order to the Judicial Committee of  the  Privy Council  was  granted and a petition of appeal  was  lodged. But by order dated December 12, 1949, the Judicial Committee declined  to consider the appeal on the merits, for, in  the view  of  the Board, since the Civil & Military  Station  of Bangalore was before the bearing of the appeal retroceded to H.   H,  the  Maharaja  of  .Mysore  and  was   within   the jurisdiction of his State at the date of the hearing of  the appeal.    His  Majesty-in-Council  could  not   effectively exercise  jurisdiction which was expressly  surrendered  and renounced.  The order passed by the District Court  granting probate  accordingly  became final and the validity  of  the will  in  so far as it dealt with property in  the  Civil  & Military Station, Bangalore, is not liable to be  challenged on  the ground of want of due execution.   Applications  for probate   of  the  will  limited  to  property  within   the jurisdiction of the District Court, Bangalore and the Madras

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High  Court  were  also filed and  orders  granting  probate subject  to the result of the proceedings before  the  Privy Council were made. During  the pendency of the probate proceeds., the  sons  of Ramalingam-who will hereinafter  be collectively referred to as  the  plaintiffs-instituted  three  actions  against  the executors and other persons for establishing their title  to and for possession of the estate disposed of by the, will of Ramalingam.  These actions were :               (1)   Suit  No. 56 of 1942/43 of the  file  of               the  District Court, Bangalore for  possession               of immovable properties in Bangalore and the               31               business carried on in the name of  Ramalingam               and also movables such as shares together with               the profits and income accrued therefrom since               December 18, 1942.               (2)   Suit  No.  60 of 1944  in  the  District               Court, Bangalore Civil & Military Station  for               a decree for possession against the executor,%               of  immovable property within the  territorial               jurisdiction of that Court, and               (3)   Suit  No.  214 of 1944  in  Madras  High               Court  on its original side for a  decree  for               possession of immovable properties in the town               of  Madras  and  also  for  a  decree  for   a               possession of "certain business" and  movables               in  Madras including the shares of  the  India               Sugars Refineries Ltd. After the retrocession of the Military Station Bangalore  in 1947  to  the  Mysore  State, Suit No.  56  of  1942/43  was renumbered  61A.  of 1947 and was consolidated for  a  trial with  Suit No. 60 of 1944.  Hearing of Suit No. 214 of  1944 on the Original side of the Madras High Court was ordered to be  stayed  pending the hearing and disposal of  the  Mysore suits.  In the three suits the plaintiffs claimed possession of  the property devised under the will of Ramalingam  dated September  10, 1942, on the plea that the property  belonged to  the jointfamily of the plaintiffs and the testator,  and the  executors  acquired  under the will  no  title  thereto because  the will was inoperative.  The suits were  resisted by the executors principally on the ground that  Ramalingam. was  competent to dispose of the estate by his will, for  it was his self-acquisition.  In the suit in the District Court at  Bangalore  they  also contended that the  Court  had  no jurisdiction  to  grant relief in respect  of  any  property moveable  or immovable outside the Mysore State.  This  plea was raised because in the plaint as originally filed the 32 plaintiffs  had  claimed’  a decree for  possession  of  the immovable  property  in the Province of Madras and  also  on order  for  retransfer of the shares which  were  originally held  by Ramalingam in the India Sugars &  Refineries  Ltd., and which were since the death of Ramalingam transferred  to the names of the executors.  By an amendment of the schedule to  the plaint, claim for possession of  immovables  situate within the jurisdiction of the Madras High Court but not the relief  relating to the shares was deleted.  The  plea  that the  claim for possession of moveables outside the State  of Mysore was not maintainable was apparently not persisted  in before  the District Court.  The District Judge,  Bangalore, held  that the property devised by the will dated  September 10, 1942, was of the jointfamily of Ramalingam and his  sons and   the  will  was  on  that  account   inoperative.    He accordingly   decreed  the  suit  for  possession   of   the

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properties   set  out  in  the  schedules  and  within   his jurisdiction,  and  directed that a  preliminary  decree  be drawn  up  for account of the management of  the  properties since the death of Ramalingam by the executors. Appeals  preferred by the executors against the  decrees  of the  District  Judge in the two suits to the High  Court  of Mysore    were   heard   by   Paramshivayya,    C.J.,    and Balakrishanaiya,  J. After the appeals were heard  for  some time, the hearing was adjourned for six weeks to enable  the parties  to  negotiate a compromise.  The  plaintiff,,;  say that  it was agreed between them and the executors that  the widow  and the children of Ramalingam should take  3/5th  of the  estate  covered by the will of Ramalingam  executed  on September  10, 1942, and that the remaining 2/5th should  go to  charity mentioned in the will and that in the  event  of the  sons and widow of Ramalingam succeeding in the  pending appeal in the Probate Proceedings before the Privy 33 Council,  the 2/5th share should also be surrendered by  the executors. The  appeals  were then posted before a  Division  Bench  of Balakrishanaiya and Kandaswami Pillai, JJ. Before this newly constituted Division Bench, a decree in terms alleged to  be settled  between  the parties was claimed by the  widow  and sons  of Ramalingam, but the Court by order dated March  15, 1949,  declined to enter upon an enquiry as to  the  alleged compromise, because in their view the compromise was not  in the  interest  of the public trust created by  the  will  of Ramalingam.   The appeals were heard and on April  2,  1949, the   two   Judges   constituting   the   Bench    differed. Balakrishanaiya,  J.,  in exercise of the  powers  under  s. 15(3) of the Mysore High Court Regulation 1884 referred  the appeals to "a Full Bench for decision under section 15(3) of the  High Court Act." The appeals were then heard by a  Full Bench of Medappa, Acting C.J., Balakrishanaiya and Mallappa, JJ.  For reasons which will be set out in detail  hereafter, no  arguments were advanced on behalf of the  plaintiffs  in support  of  the  decree, of the  District  Judge,  and  the appeals  were  allowed,  and  the  plaintiff’s  suits   were dismissed.   An  application  for  review  of  judgment  was submitted  by  the plaintiffs on diverse grounds,  but  that application was also dismissed. After  the disposal of the suits in the Bangalore Court,  in suit No. 214 of 1944 it was submitted before the Madras High Court by the executors that the judgment of the Mysore  High Court   dismissing  plaintiffs"  suit  for   possession   of immovable  properties  and for an order  for  retransfer  of shares   of  the  India  Sugars  &  Refineries   Ltd.,   was res  judicata between the parties and accordingly  the  suit held by the plaintiffs in the Madras High Court be  dismiss- ed.  The  plaintiffs  contended that  as  to  immovables  in Madras,  the Mysore judgment was not conclusive because  the Mysore Court was not competent to 34 adjudicate  upon the title of the plaintiffs to  the  Madras properties  and that the Court did not, in fact,  adjudicate upon  the claim of the plaintiffs, and that, in  any  event, the  judgment was not conclusive because Medappa, C.J.,  and Balakrishanayia,  J.,  showed  bias before  and  during  the hearing  of the appeals they were incompetent to sit in  the Full Bench, and "their judgment was coram non judice". On "the preliminary issue of res judicata" Rajagopalan,  J., held  that the Full Bench judgment of the Mysore High  Court did  not  bar  the  hearing of the suit  in  regard  to  the immovable properties in Madras claimed by the plaintiffs for

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two  resons (1) that the title to those properties was  not, in fact, adjudicated upon by the Mysore Court, and (2)  that the  lex situs governed the immovable properties in  Madras. The learned Judge also indicated the scope of the enquiry on the plea of conclusiveness of the foreign judgment raised by the executors.  He observed that the Madras High Court  not investigate  the allegations made against the Judges of  the Mysore High Court in the conduct of the appeal itself, or of the  property  or  correctness of  their  decisions  in  the appeals or in the legal proceedings connected therewith, but two  questions  fell outside the purview of that  rule;  (a) whether  Mr.  Medappa  had been and was using  a  motor  car belonging to the estate in the hands of ’the executors,  and (b)  whether Mr. Medappa sent for L.S. Raju who was  engaged to  appear  as counsel for the plaintiffs and  attempted  to dissuade him from conducting the case for the  ",plaintiffs’ family".    If  these  two  allegations  were   established, observed Rajagopalan, J., they might possibly furnish  proof that  one  of the Judges of the Mysore High  Court  who  had heard the appeals was "interested" in the subject matter  of suit  itself and that would be a ground falling  within  the scope  of exception (d) to s. 13 Civil Procedure  Code.   He accordingly ruled that the plaintiffs may 35 lead  evidence  on those two allegations but not as  to  the rest.  Against the order, two appeals were preferred to  the High  Court under the Letters Patent, one by the  plaintiffs and  the other by the executors.  The  plaintiffs  submitted that Rajagopalan, J., was in error in restricting the  scope of  the enquiry into the allegations of bias,  interest  and partiality.   The executors contended that the  judgment  of the  Mysore  High Court was conclusive as to  title  to  all properties movable and immovable belonging to the estate  of Ramalingam  and disposed of by the will and that no  enquiry at  all as to the allegation of bias and proof of  interest, about the use by Mr. Medappa of a motor car belonging to the estate  and the dissuasion by Mr. Medappa of Raju should  be permitted.   The  High Court of Madras  held  that  evidence about the attempts made to dissuade Raju from appearing  for the plaintiffs was admissible, but not evidence relating  to the  use  by  Mr. Medappa of a motor car  belonging  to  the estate.   They observed that even if the "Mercedes  car"  of ’the estate was used by Mr. Medappa, the user was before  he was  appointed Judge of the Mysore High Court and the  motor car had been sold away more than three years before the date on which Mr. Medappa sat in the Full Bench and it could  not therefore  be  said that because he had used  the  car  some years before the date on which he sat in the Fall Bench, "he had so identified himself with the executors that in  taking part  in the hearing before the Full Bench," the  proceeding was  contrary to natural justice.  They also held  that  the judgment  of the Mysore High Court, unless the  "plea  coram non judice" was established, was conclusive as to all  items of  property in dispute in the suit, except as to  the  four items of immoveable property in Madras. The  suit was thereafter allotted to the file of  Ramaswami, J., for trial was heard together with                              36 five other suits-Suits Nos. 91 of 1944, 200 of 1944, 251  of 1944,  274  of 1944 and 344 of 1946 all  of  which  directly raised   questions  relating  to  the  interest  which   the plaintiffs  claimed in the estate devised under the will  as members  of  a joint- family.  By consent  of  parties,  the evidence recorded in Suit No. 60 of 1944 and Suit No. 61A of 1947  of  the  file of the District  Judge,  Bangalore,  was

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treated  as evidence in these suits and proceedings and  the record  of the Mysore High Court in the civil suits and  the printed   record  of  the  Privy  Council  in  the   probate proceedings  and  the record in the petition for a  writ  of prohibition  filed in this Court restraining enforcement  of the judgment of the Mysore Court were treated as part of the record of the suit. In  Suit No. 214 of 1944, three principal questions fell  to be determined :               (1)   whether the judgment of the Mysore  High               Court  holding  that  the  estate  devised  by               Ramalingam  by his will was  his  selfacquired               property   was  conclusive  as  to  title   to               properties  movable  and  immovable,   situate               without the jurisdiction of the Mysore State;               (2)   whether  the  proceeding in  the  Mysore               High  Court in which the judgment  pleaded  as               conclusive was rendered, was vitiated  because               it was opposed to natural justice and               (3)   whether by his will dated September  10,               1942,  Ramalingam attempted to dispose of  the               estate  which belonged to the  jointfamily  of               himself and his sons, the plaintiffs.               Ramaswami, J, did not expressly deal with  the               first question, presumably because (so far  as               he  was  concerned  it was  concluded  by  the               judgment               37               of the Division Bench in appeals against  the,               interlocutory  order relating to the scope  of               the enquiry in the suit, but on the second and               the  third questions he held in favour of  the               plaintiffs.  He held that for diverse  reasons               the "Full Bench judgment of the High Court was               coram non judice" and therefore not conclusive               within  the  meaning of s. 13 of the  Code  of               Civil   Procedure,  and  that   the   evidence               disclosed   that  the  property  movable   and               immovable  set  out in the  scheduled  to  the               plaint   and   the   business   conducted   by               Ramalingam  belonged  to the joint  family  of               Ramalingam  and  his  sons.   He   accordingly               decreed  the  claim  of  the  plaintiffs   for               possession   of  the  property   movable   and               immovable),  set  out in the Schedule  to  the               plaint  (except  1650  shares  of  the   India Sugars  and R efineries Ltd.) and directed  an               account of the management by the executors  of               the  properties from the date of  Ramalingam’s               death  till  delivery  of  possession  of  the               properties   to  the  plaintiffs.    He   also               declared  that the business carried on in  the               name of Oriental Films at 9 Stringers St.,  G.               T. Madras, was the sole proprietary concern of               the joint family and the profits realised from               "Palmgrove"   and   Vegetable   Oil    Factory               constituted  the  assets  of  the  estate   of               Ramalingam  subject to such equities as  might               arise  in favour of Narayanaswami Mudaliar  on               the footing of the doctrine of Quantam  Meruit               to  be  determined  by  the  final  decree  or               execution proceedings." Against the judgment of Ramaswami, J. the executors appealed to  the  High  Court.   The High  Court  observed  that  the decision of the Mysore High Court could not "take effect  in

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respect of the immovable properties situate in the State  of Madras ; but it could naturally affect the moveables situate there.   In fact, the immovable properties in  Madras  State were  not  included  in  Mysore  suits.   It  is   therefore necessary for the members of 38 Ramalingam’s family to get rid of the decision of the Mysore High Court before they can have any chance of obtaining  the movable properties of Ramalingam situate in the State."  The High  Court after an elaborate review of the  evidence  held that the estate which Ramalingam sought to dispose of by his will  was  joint-family estate, and he was on  that  account incompetent to dispose of the same, and the plaintiffs  were entitled to the immovables in Madras, but as to movables the judgement  of  the Mysore High Court  was  conclusive  there being  no reliable evidence to establish the plea of  "coram non judice".  The High Court accordingly modified the decree of the trial Court.  They confirmed the decree in so far  as it  related to immovables in Madras and dismissed it  as  to the rest.  They further declared that the sale proceeds of a property  called "Palmgrove"--which was execluded  from  the Schedule  to the plaint in the Bangalore  suit-,,constituted the  assets  of the said joint family" and on  that  footing gave certain directions. Against the judgment of the High Court modifying the  decree of  Mr.  Justice Ramaswami two appeals-Nos. 277 and  278  of 1958-are  preferred : Appeal No. 277 is by  the  plaintiffs, and  Appeal  No.  278  of 1858 is  by  the  executors.   The plaintiffs  contend  that the judgment of  the  Mysore  Fall Bench is not conclusive between parties in the Madras  suit, for   the  Mysore  Court  was  not  a  court  of   competent jurisdiction  as to property movable and  immovable  outside the territory of the Mysore State, that the judgment was not binding because the Judges who presided over the Full  Bench were not competent by the law of the Mysore State to  decide the dispute and that in any event it "was coram non  judice" because  they were interested or biased and the  proceedings before them were conducted in a manner opposed to 39 natural  justice.   On  behalf  of  the  executors,  it   is submitted that the judgment was conclusive as to the  nature of  "the Kolar Gold Fields business", which was found to  be the  separate business of, Ramalingam, and the  Madras  High Court was only competent to decide whether the immovables in Madras  were  not  acquired  out of  the  earnings  of  that business. Section  13 of the Code of Civil Procedure, Act V  of  1908, provides :               "13.   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 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 ;

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             (e)   where it, has been obtained by fraud               (f)   where  it sustains a claim founded on  a               breach of any law in .force ill India.               40 By  that enactment a foreign judgment is made conclusive  as to  all  matters  directly  adjudicated  upon  between   the parties, except as to cases set out in cls.(a) to (f).   The judgment  of the Mysore High Court is, it is claimed by  the plaintiffs not conclusive because-               (1)   it has not been pronounced by a court of               competent jurisdiction,               (2)   that  on the face of the  proceeding  it               was   founded   on  incorrect  view   of   the               international law, and               (3)   that   the  proceeding  in   which   the               judgment was pronounced was opposed to natural               justice. The dispute in the appeal filed by the plaintiffs  primarily relates  to the shares of the India Sugars & Refineries Ltd, and  movables in Madras.  The judgment of the  Mysore  Court qua the immovables in Mysore has become final and is not and cannot  be challenged in this Court.  The Mysore High  Court was competent to adjudicate upon title to immovables  within the  territory  of  the  State  of  Mysore,  in  the   suits instituted  by  the plaintiffs against  the  executors.   In considering  whether  a  judgment  of  a  foreign  Court  is conclusive,  the  courts in India will not  inquire  whether conclusions recorded thereby are supported by the  evidence, or  are otherwise correct, because the binding character  of the judgment may be displaced only by establishing that  the case  falls within one or more of the six clauses of s.  13, and  not  otherwise.   The registered office  of  the  India Sugars & Refineries Ltd., was in Bellary in the Province  of Madras,  and the situs of the shares which are  movables-may normally  be the place where they can be effectively’  dealt with (see Erie Beach Co. v. Attorney-General for  Ontario(1) and Brasssard v. Smith(2).  The situs of the (1) [1930] A.C. 161. (2) [1925] A.C. 372, 41 shares  of the India Sugars & Refineries Ltd. may  therefore be   properly   regarded   as   without   the   territorial’ jurisdiction  of  the  Mysore  Court  at  the  date  of  the institution of the suit by the plaintiffs.  Counsel for  the plaintiffs submitted that the Courts in the Indian St-ate of Mysore which qua the Courts in the Province of Madras  prior to  the enactment, of the Constitution, were foreign  Courts bad  no  jurisdiction to adjudicate upon title  to  movables outside their territory, for the action to declare title  to such  movables and order for possession thereof was  by  the rules of private international law an action in rem, and the judgment of the Mysore Court was on that account a  nullity. Counsel   urged   that  the  principle  of   submission   to jurisdiction  has no application in actions in rem,  because jurisdiction in rem, rests entirely upon presence actual  or national  of  the res within the territory  over  which  the Court  has  power.  Counsel also urged that  recognition  of jurisdiction  in  transactions involving a  foreign  element depends upon the doctrine of effectiveness of judgments, and willingness of parties to submit to jurisdiction in  actions in  rem is irrelevant.  Enlarging upon this theme,.  it  was submitted  that the shares of the India Sugars &  Refineries Ltd.   had  at  the  material  time  a  situs  outside   the jurisdiction  of the courts of the Mysore State and  by  the rules   of   private  international  law,  an   action   for

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adjudication  of title to the shares being an action in  rem the  courts  of  the State of  Mysore  were  incompetent  to entertain  a suit in which title to the shares was  involved because  they  could not render an  effective  judgment  for possession  of those shares.  On the assumption that  in  an international  sense  the  Court  of  the  District   Judge, Bangalore,  was incompetent to adjudicate upon title to  the shares and the movables and to award possession thereof,  it was urged that a suit for determination of title to and  for possession of the shares and movables could be instituted in the Madras High Court alone and by 42 their  submission the plaintiffs could not invest the  Court of  the  District Judge.  Bangalore,  with  jurisdiction  to adjudicate  upon  the  conflicting c1aims of  title  to  the shares.    The  argument  therefore  is  that   the   action instituted  by  the  plaintiffs in  the  District  Court  of Bangalore  being  an action in rem ’that Court  was  by  the rules  of private international law universally  recognised, competent   to  adjudicate  upon  title  only  to   property regarding  which it could render an effective judgment,  and as the plaintiffs claimed title to and possession of  shares of  the  India Sugars & Refineries Ltd. and  other  movables outside  the territory of Mysore the judgment of the  Mysore High Court that the shares and the movable property were the self-acquisition  of  Ramalingam was not  binding  upon  the parties,  because  the  Mysore  Court was  not  a  Court  of competent  jurisdiction within the meaning of s.  13,  Civil Procedure Code,1908. A  judgment of a foreign court to be conclusive between  the parties  must  be  a  judgment  pronounced  by  a  court  of competent jurisdiction; and competence contemplated by s. 13 of the Code of Civil Procedure is in an international sense, and  not  merely by the law of foreign State  in  which  the Court  delivering  judgment functions  Chormal  Balchand  v. Kasturhand  (1), Panchapakesa v. Hussim(2) and Pemberton  v. Highes  (3).   It  is necessary to emphasize  that  what  is called  private  international  law  is  not  law  governing relations between independent States : private international law,  or  as it is sometimes called "Conflict of  Laws",  is simply a branch of the civil law of the State envolved to do justice   between   litigating   parties   in   respect   of transactions or personal status involving a foreign element. The  rules of private international law of each  State  must therefore in the very nature (1) [1936] I.L.R. 63 Cal. 1083 (2) A.I.R. 1234 Mad. 145. (3) [1899] Cb. 781. 43 of things differ, but by the comity of nations certain rules are   recognised  as  common  to  civilised   jurisdictions. Through  part  of the judicial system of  each  State  these common  rules have been adopted to adjudicate upon  disputes involving  a foreign element and to effectuate judgments  of foreign  courts  in  certain  matters, or  as  a  result  of international conventions. Roman lawyers recognised a right either as a jus in rem or a jus  in personam.  According to its literal meaning "jus  in rem" is right in respect of a thing, a  us in personam" is a right against or in respect of     a   person.   In   modern legal terminology a right in  rem,  postulates  a  duty   to recognise  the right imposed upon all persons  generally,  a right  in personam postulates a duty imposed upon  a  deter- minate  person  or  class of persons.  A  right  in  rem  is therefore  protected against the world at large; a right  in

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personam  against  determinate individuals or  persons.   An action  to  enforce  a jus in personam was  regarded  as  an action  in rem.  But in course of time, actions in  rem  and actions in personam acquired different content.  When in  an action ’the rights and interest of the parties themselves in the  subject matter are sought to be determined, the  action is in personam.  The effect of such an ’action is  therefore merely to bind the parties thereto.  Where the  intervention of  the Court is sought for the adjudication of a  right  or title  to  property, not merely as between the  parties  but against  all persons generally, the action is in rem.   Such an  action is one brought in the Admiralty Division  of  the High  Court possessing Admiralty jurisdiction by service  of process against a ship or cargo within jurisdiction.   There is another sense in which an action in rem is understood.  A proceeding in relation to personal status is also treated as a  proceeding in rem, for the judgment of the  proper  court within  the jurisdiction of which the parties are  domiciled is by comity of 44 nations  admitted  to  recognition  by  other  courts.    As observed  by  Cheshire in his "Private  International  Law", Sixth  Edition at page 109, "In Roman law an action  in  rem was one brought in order to vendicate a jus in rem, i.e.,  a right  such as ownership available against all persons,  but the  only action in rem known to English law is  that  which lies in an Admiralty court against a particular res, namely, a "hip or some other res, such as cargo,associated with  the ship."  Dealing  with  judgment  in  rem  and  judgments  in personam,  Cheshire  observes at page 653, It  (judgment  in rem) has been defined as a judgment of a court of  competent jurisdiction determining the status of a person or thing (as distinct  from the particular interest in it of a  party  to the litigation); 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 settles the destiny of the res itself  land binds  all  persons  claiming an interest  in  the  property inconsistent  with  the judgment even though  pronounced  in their  absence’  ; a judgment in personam, although  it  may concern a res, merely determines the rights of the litigants inter se to the res.  The former looks beyond the individual rights  of  the parties, the latter is  directed  solely  to those  rights  A foreign judgment which purports to  operate in rem will not attract extraterritorial recognition  unless it  has been given by a court internationally  competent  in this respect.  In the eyes of English law,, the adjudicating court must have jurisdiction to give a judgment binding  all persons generally.  If the judgment relates to  immovables, it  is clear that only the court of the situs is  competent. In the case of movables, however, the question of competence is  not so simple, since there would appear to be  at  least three classes of judgments in rem:               (a)   Judgments which immediately vest               45               the,  property in a certain person as  against               the whole world.               These  occur, for instance, ",here  a  foreign               court of Admiralty condemns a vessel in  prize               proceedings.               (b)   Judgments  which  decree the sale  of  a               thing  in satisfaction of a claim against  the               thing itself.               and (c) Judgments which order movables be sold               by way of administration."

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An  action in personam lies normally where the defendant  is personally  within  the  jurisdiction  or  submits  to   the jurisdiction  or  though  outside the  jurisdiction  may  be reached  by an order of the court.  By s. 20 of the’  Mysore Code  of Civil Procedure a general jurisdiction (subject  to es.  16  to 19 which deal with suits relating  to  immovable property  and movable property under distraint  and  certain incidental  matters) was conferred on Courts in  respect  of suits   instituted   within  the  local  limits   of   whose jurisdiction-               (a)   the  defendant,  or each of  the  defen-               dants,  were there are more than one,  at  the               time of the commencement of the suit, actually               and   voluntarily  resides,  or   carries   on               business or personally works for gain; or               (b)   any  of the defendants, where there  are               more than one, at the time of the commencement               of the suit, actually and voluntarily resides,               or  carries on.business, or  personally  works               for  gain, provided that in such  case  either               the  leave  of  the  Court  is  given  or  the               defendants  who  do not reside,  or  carry  on               business,  or  personally work  for  gain,  as                aforesaid, acquiesce in such institution; or               46               (c)   the cause of action, wholly or in  part               arises, These rules deal with the territorial jurisdiction of courts in  respect  of  all  suits other  than  those  relating  to immovable property or for recovery of movable property under distraint  or  attachment.  But in  their  application  they extend  to  all  per sons whether domiciled  or  not  within jurisdiction.    Section   20  of  the  Code   extends   the jurisdiction of the courts to persons or transactions beyond the territorial limits of the courts.  Such jurisdiction  in personam which transcends territorial limits is conferred on the  courts by the law making authority of many States.   In England,  by  Order  XI, r. 1 of the Rules  of  the  Supreme Court, discretionary jurisdiction in personam is exercisable by the courts by effecting service outside the  jurisdiction of a writ of summons or notice of a writ of summons  against an absent defendant in the classes set out therein. A  court of a foreign country has jurisdiction to deliver  a judgment  in rem which may be enforced or recognised  in  an Indian Court, provided that the subject matter of the action is property whether movable or immovable within the  foreign country.  It is also well settled that a court of a  foreign country has no jurisdiction to deliver a judgment capable of enforcement  or  recognition  in  another  country  in   any proceeding the subject matter of which is title to immovable property outside that country. But  there is no general rule of private  international  law that  a  court  can in no  event  exercise  jurisdiction  in relation   to   persons,   matters   or   property   outside jurisdiction.   Express enactment of provisions like s.  20, Civil  Procedure Code, 1908 (V of 1908) and 0. XI, r.  1  of the  Supreme  Court  Rules  in  England,  negative  such  an assumption. 47 The  courts  of  a  country  generally  impose  a  threefold restriction  upon  the exercise of  their  jurisdiction  (1) jurisdiction  in rem (binding not only the parties  but  the world at large) by a court over res outside the jurisdiction will not be exercised, because it will not be recognised  by other  courts;  (2)  The court will  not  deal  directly  or

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indirectly  with  title to immovable  property  outside  the jurisdiction  of the State from which it derives its  autho- rity;  and  (3)  Court will not assist  in  the  enforcement within its jurisdiction of foreign penal or revenue laws. The  suit filed by the plaintiffs was for possession of  the estate disposed of by the will of Ramalingam.  In  paragraph 3  of the plaint in the Bangalore District Court  suit  (and that  is  the  only foreign suit to  which  we  will  refer, because  it is common ground that the averments in  the  two plaints-in  the  District  Court at  Bangalore  and  in  the District  Court, Civil Station Bangalore, which  was  conso- lidated for bearing with the Bangalore suit, were the  same) it was averred "The plaintiffs and their father, the late V. Ramalinga   Mudaliar,  were members of the  undivided  Hindu joint  family  and the properties set out  in  the  schedule among  others  belong to the said joint  family.   The  said Ramalinga  Mudaliar died on the 18th of December, 1942,  and on  his  death  the  three  plaintiffs  herein  have  become entitled  by  survivorship to all the said  properties."  In paragraph 11, it was averred, "The plaintiffs state that  as the properties set out are joint family properties the  late Ramalingam had no disposing power in respect of them and any will  alleged to have been executed by him is in  any  event void  and  inoperative  in  law,  and  not  binding  on  the plaintiffs.   It was then averred in paragraph 13, that  the executors under the will of Ramalingam had entered upon  the properties and business set out in the schedule  purporting to be the executors 48 under  an  alleged will of the said Ramalingam, and  as  the said  will was, in any event invalid the defendants were  in wrongful  possession of the said properties  and  businesses and the plaintiffs were en, titled to recover the same  from the executor a as the surviving members of the joint  family consisting   of   themselves  and  their   deceased   father Ramalingam.   By  paragraph  22  they  claimed  among  other reliefs, the following:               (a)   that the executors be ordered to deliver               possession  of all the properties  and  busin-               esses  in  their  possession,  management  and               control together with the profits and  income’               accrued therefrom since 18th December, 1942,               (b)   that defendants 17 and 18 (employees  of               Ramalingam)  be ordered to deliver  possession               of  the assets and capital together .With  the               profits of the businesses of Kolar Gold  Field               contracts,   military  contracts  and   cinema               business.,               (c)   that the executors and defendant 15  who               are alleged to hold shares of the India Sugars               &  Refineries  be ordered  to  retransfer  the               shares to the plaintiffs. The  plaintiffs in paragraph 19 averred, in  impleading  the India Sugars & Refineries Ltd., Bellary as Defendant No.  16 in the suit, that the company was impleaded "so give  effect to  an order of transfer of at least 19,000 shares from  the names of defendantes 1 to the plaintiffs. The  claim in suit was clearly for adjudication of title  of the plaintiffs against persons who had wrongfully  possessed themselves  of  their property.  Manifestly,  an  action  in personam is one brought in order to settle the rights of the parties as between 49 themselves and only between themselves and persons  claiming through  or under them whether it relates to  an  obligation

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or,  as  in the case of detinue, to  chattels.   A  decision obtained  in  this  suit is effective only  as  between  the parties.  By the Mysore Code of Civil Procedure the District Court  of Bangalore was competent to entertain the suit  for possession  of immovable properties within the  jurisdiction of that court and also for an order against the executors to retransfer the shares of the India Sugars & Refineries Ltd., to  the plaintiff.  The situs of the shares in any  question between  the Company and the holders thereof was  the  regi- stered  office of the Company in Bellary (outside the  State of Mysore), but the share certificates must, on the case  of the  plaintiffs  as set out in the plaint, be deemed  to  be with  the executors and compliance with the decree, if  any, passed  against  the executors for an  order  of  retransfer could  be obtained under the Code of Civil  Procedure  (’see Order  XXI,  rr.  31 and 32 Mysore  Civil  Procedure  Code). There is no rule of private international law recognised  by the  courts  in  India which  renders  the  Bangalore  Court incompetent  to grant a decree directing retransfer  of  the shares  merely because the shares have a situs in a  dispute between.  the  Company  and  the  shareholders  outside  the jurisdiction   of  the  foreign  court:  Counsel   for   the plaintiffs  submitted that the Mysore Court was  incompetent to  deliver an effective judgment in respect of the  shares, but  by  personal compliance with an  order  for  retransfer judgment  in  favour  of the plaintiffs  could  be  rendered effective. It  is  in the circumstances not necessary  to  express  any opinion  on  the  question  whether  on  the  principle   of effectiveness  is  founded  the conclusive  character  of  a foreign  judgment.   On  this  question  text  book  writers disagree,  and there is singular absence of even  persuasive authority.  Dicey maintained (see Dicey’s Conflict of  Laws, 7th Edition 50 p.   17  Introduction) that the jurisdiction in personam  of English  courts  rests upon the principle  of  effectiveness which he defined as follows:-               "The  courts of any country are considered  by               English law to have jurisdiction over (i.  e.,               to be able to adjudicate upon) any matter with               regard  to  which they can give  an  effective               judgment,  and are considered by  English  law               not  to have jurisdiction over (i. e., not  to               be  able to adjudicate upon) any  matter  with               regard to which they cannot give an  effective               judgment." This  principle  received apparent approval in a  dictum  of Lord  Merrivale,  President  of  the  Matrimonial  Court  in Tallack  v. Tallack (1) wherein it was observed at p.  221: "It  is  not  clear  that  the  judicial  tribunals  of  the Netherlands are able to give effect at all to judgements  of foreign courts even in personal actions’ against  defendants living  in Holland.  But having regard to the terms  of  the Civil  Code,  and  the  evidence  of  Dr.-  Bisschop,  I  am satisfied  that  a  decree  of  this  Court  purporting   to partition  the property of the respondent would be  an  idle and wholly ineffectual process." In Tallack8 case, the court refused  the  petition  of  the husband  for  an  order  for settlement  of the estate of the wife upon the  children  of the  marriage after a decree for dissolution was passed,  on the  ground  that  to accede to it would be  to  extend  the jurisdiction  of the English Court against a  defendent  who was not at the material time domiciled within its  jurisdic- tion,  and who had appeared only to dispute the exercise  of

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jurisdiction  beyond  territorial limits.  This  ground  was sufficient  to  support the decision of the  court  and  the observation  about  the  principle  of  effectiveness   were plainly unnecessary. (1)  (1927) P. D. 211. 51 Schmitthoff in "The English Conflict of Laws" 3rd Edition at page 425 observes:               "..............................            the               jurisdiction  of the courts is not based  upon               considerations of actual or probable effect of               their dicision.  The argument from the  effect               of  the  judgment to the jurisdiction  of  the               court  represents an approach to  the  problem               under investigation from the wrong end, in the               same  way as the argument from the  effect  of               the choice of law to the choice itself is,  in               the  words  of  Lord Russel,  founded  upon  a               fallactious basis." Graveson in his "The Conflict of Laws" 4th Edition at p. 338 observes :               "In  the  doctrine  of  effectiveness  English               jurists have sought to provide for the  courts               a reasonable and adequate theory to  determine               the  exercise  of jurisdiction.   The  reason-               ableness of the theory is assured by its prac-               tical  basis;  but its  complete  adequacy  is               refuted   by   the   existence   of    English               jurisdiction   over  defendants  outside   the               jurisdiction in cases falling within Order  11               of     the     Rules    of     the     Supreme               Court.......................   The  basis   of               jurisdiction  in the English conflict of  laws               is  wider  than, though  it  comprehends,  the               principle   of   effective   enforcement    of               judgments.   It lies in the administration  of               justice." In an action in personam the court has jurisdiction to  make an order for delivery of movables’ where the parties  submit to  the jurisdiction.  A person who institutes a suit  in  a foreign  court and claims a decree in personam cannot  after the  judgment is pronounced against him, say that the  court had  no  jurisdiction which he invoked and which  the  court exercised,  for  it is well recognised that a party  who  is present  within or who had submitted to jurisdiction  cannot after wards question it. 52 We  may  briefly  refer to cases on which  counsel  for  the plaintiffs  relied in support of his plea that the  judgment of the Mysore High Court in so far as it relates to movables outside  the State of Mysore was not conclusive between  the parties in the Madras suit. In Messa v. Messa (1) the judgment of the Alexandria Supreme Court  relating  to the validity of a will executed  by  one Bunin  Menahim Messa was held not binding as a  judgment  in rem  upon the parties to a litigation in Aden in  which  the defendants  claimed  to be executors under the will  of  the testator.   The  testator  was  not  domiciled  within   the territory  over  which  the  Supreme  Court  of   Alexandria exercised jurisdiction, and therefore the judgment though in rem was not held binding upon the executors.  That case  has no bearing on the contention raised by the plaintiffs.   Nor is the opinion of the Judicial Committee in Sardar  Gurdayal Singh  v.  Rajah of Faridkote (2) of any assistance  to  the plaintiff;.   In  that  case it was observed  that  a  money

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decree passed by a foreign court against an absent foreigner was  by international law a nullity.  Lord Selborne in  that case at p. 185 observed :               "Territorial   jurisdiction   attaches   (with               special  exceptions) upon all  persons  either               permanently or temporarily resident within the               territory  while  they are within it;  but  it               does not follow them after they have withdrawn               from  it, and when they are living in  another               independent  country.  It exists always as  to               land  within  the  territory, and  it  may  be               exercised over movables within the  territory;               and  in  question  of  status  or   succession               governed  by  domicil,  it  may  exist  as  to               persons  domiciled,  or who when  living  were               domiciled,  within the territory.  As  between               different               (1) I. L. R. (1938) Bom. 529.               (2) [1894] L. R. 21 I. R. 171 .               53               provinces under the sovereignty (a. g.,  under               the  Roman  Empire) the.  legislation  of  the               sovereign  may distribute and regulate  juris-               diction;  but no territorial  legislation  can               give  jurisdiction  which  any  foreign  Court               ought  to recognise against  foreigners,  who.               owe  no allegiance or obedience to  the  Power               which so legislates.               In  a personal action, to which none of  these               causes  of jurisdiction apply, a  decree  pro-               nounced in absentem by a foreign Court, to the               jurisdiction of which the Defendant has not in               any way submitted himself, is by international               law  an  absolute  nullity.  He  is  under  no               obligation of any kind to obey it; and it must               be regarded as a mere nullity by the Courts of               every   nation  except  (when  authorised   by               special  local legislation) in the country  of               the forum by which it was pronounced." In  Castrique v. Imri (1) a bill  issued by the master of  a British  ship  on  the  owner  for  costs  of  repairs   and necessaries  supplied, was dishonoured, and the  endorsee  a French  subject sued the master in the Tribunal de  Commerce at  Havre.   In meantime, the owner mortgaged the  ship  and became bankrupt.  The Tribunal ordered the master to pay the sum  due which was "’privileged on the ship." In default  of payment  the ship was seized and detained.  The judgment  of the Tribunal was by the French law required to be  confirmed by the Civil court of the District and accordingly the Civil Court  summoned the owner and the assignee in  bankruptcy  , but  not  the mortgagee and his assignee and in  default  of appearance  decreed  sale  of  the  ship  by  auction.   The consignee  of  the  mortgagee Castrique  then  commenced  an action in the "nature of replevy" of the ship and the  court of appeal held--though erroneously-that the bill of the sale to (1)  (1870) 4 H. L. 414. 54 Castrique not having been registered was invalid and he had no  locus standi to maintain the action.  The ship was  then sold  to a British subject, who brought it to Liverpool  and registered it in his own name.  Castrique then commenced  an action  in the Court of Common Pleas in  conversion  against the  purchaser  pleading that the sale in France  was  void. The House of Lord 3 held that there was a judgment in rem in

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the French Court and the title of the purchaser to the  ship could not be reagitated in the courts in England. The  proceeding  in the French Court was manifestly  one  in rem,  for  it was to enforce a maritime lien, which  by  the French  law was a proceeding in rem, and as the ship was  in the French territorial waters, it must in the English  Court be so treated and held.  These oases do not support the plea that  the judgment of a foreign court qua movables out  side its  jurisdiction  will not be conclusive between  the  same parties in an action relating to those movables in an Indian Court. The plea that conclusiveness of a foreign judgment set up as a  bar where that judgment was delivered after the  suit  in which  it  is pleaded was instituted is  without  substance. The language of a.3 of the Code of Civil Procedure, 1908, is explicit:a  foreign  judgment  is  made  hereby   conclusive between  the parties as to any matter  directly  adjudicated and  it  is not predicated of the judgment that it  must  be delivered  before  the  suit  in which  it  is  set  up  was instituted.   Section  13  incorporates  a  branch  of   the principle  of  res judicata, and extends it  within  certain limits  to  judgments of foreign courts if competent  in  an international  sense  to  decide  the  dispute  between  the parties.    The   rules  of  res  judica  applies   to   all adjudications  in a "former suit", which expression  by  the Explanation  1  to  s. II of the  Code  of  Civil  Procedure denotes a "suit which has been decided prior to 55 the suit in question whether or not it was instituted  prior thereto.  This explanation is merely declaratory of the law: the decisions of the Courts in India prior to its  enactment establish  that  proposition  conclusively.  (Balkishan   v. Kishan Lal (1) Beni Madho v. Inder Shahi(2) ). The dictum to the contrary in The Delta : "The Erminia Foscolo (3)" is not sufficient  to justify a departure from the plain  words  of the Indian Statute. One more ground of incompetence of the Mysore High Court  to deliver  the  judgment set up as a bar to the trial  of  the Madras  suit in so far as it relates to movable needs to  be adverted to.  It was submitted that Balakrishnaiya, J.,  was not  competent  to  refer to a Full Bench  the  appeals  for hearing,  after  judgments  recording  final  opinions  were delivered   by   him  and  by  Kandaswami  Pillai,   J.   To recapitulate  the  facts which are material  on  this  plea: Appeals Nos. 104 and 109 of 1947-48 against the judgment  of the  District Judge, Bangalore, filed by the executors  were heared  by Balakrishanaiya and Kandaswami Pillai,  JJ.   The Judges  after  hearing arguments differed  on  almost  every question raised in the appeals.  Balakrishanaiya, J. was for reversing  the  judgment of the trial Court  and  Kandaswami Pillai, J., was for affirming the same.  Balakrishanaiya J., observed  in  the concluding part of his  judgment  "In  the result,  I am of opinion that the judgments and  decrees  of the  learned  District  Judge cannot be  sustained  and  are liable  to be set aside by dismissing the suits  with  costs throughout."  After the opinion of Balakrishanaiya, J.,  was delivered Kandaswami Pillai, J., delivered his opinion.   He observed, "In the result, the judgment and the decree in the suits have to be confirmed, and regular Appeals Nos. 104 and 109 of 1947-48 have (1) (1888) I. L R .  11 All. 148. (2) (1909) I.L.R. 32 All. 67. (3) L. R. (1876) P.D. 393, 404. 56 to  be  dismissed  with  costs to  be  borne  by  appellants

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(defendants  1  to  3)  from  the  estate  of   Ramalingam." Thereafter, Balakrishnaiya, J., referred the case to a  Full Bench under s. 15(3) of the Mysore High Court Regulation  of 1884,  and signed his "judgment".  The  relevant,  statutory provisions then in operation relating to the procedure to be followed  in  the  event  of  a  difference  between  Judges constituting  a Bench were these: Section 98 of  the  Mysore Civil Procedure Code provided:               (1)   Where  an appeal is heard by a Bench  of               two or more Judges the appeal shall be decided               in accordance with the opinion of such  Judges               or of the majority (if any) of such Judges.               (2)   Where  there is no such  majority  which               concurs  in ’a Judgment varying  or  reversing               the decree appealed from such decree shall  be               confirmed. Section  15 (3) of the Mysore, High Court Regulation,  1884, as amended by Act XII of 1930, provided:               "The  decision  of  the  majority  of   Judges               comprising any Full Bench of the High Court or               other  Bench of the said Court  consisting  of               not  less  than  three  Judges  shall  be  the               decision of the Court.               When  a  Bench of the High Court  consists  of               only  two Judges and there is a difference  of               opinion  between such Judges on  any  material               question  pending  before  it,  such  question               shall be disposed of in the manner  prescribed               by  Section 98 Civil Procedure Code or s.  429               of the Criminal Procedure Code as the case may               be  or  at  the discretion of  either  of  the               Judges composing the Bench it shall be               57               referred to a Fall Bench and the decision  ’of               the majority of the Judges on such Full  Bench               shall be the decision of the High Court." If  Judges constituting the Bench differed and there was  no majority  concurring  in  varying or  reversing  the  decree appealed from, the judgment had to be affirmed.  But it  was open to the Judges or either of them to refer under s. 15(3) of  the Mysore High Court Regulation the questions on  which there was a difference to a Full Bench.  The true rule envi- saged  by  s. 15(3) of the Mysore High Court  Regulation  is that  the  Court or the referring Judge shall  set  out  the material questions on which there is a difference of opinion without expressing any opinion on the result of the  appeal. The two Judges did disagree: they disagreed on almost  every question  which  had  a bearing on the  claim  made  by  the plaintiffs,  and  they  delivered  their  separate  opinions expressing  their mutual dissent, and even  incorporated  in their  respective opinions the final orders to be passed  on their  respective  views in the appeals.  In. so  doing  the Judges  committed  a procedural irregularity;  but,  in  our judgment,  this procedural irregularity does not affect  the competence  of  the  Fall  Bench  constituted  to  hear  the reference  under  s.  15  (3).   Balakrishanaiya,  J.,   and Kandaswami  Pillai,  J.,  did  deliver  separate  and  self- contained  opinions, setting out the final orders  which  in their respective opinions should be made in the appeals, but their intention was clear: they intended that in view of the difference  of  opinion  (so expressed the  case  should  go before  a  Fall Bench, and Balakrishanaiya,  J.,  passed  an order  for  reference  presumable with  the  concurrence  of Kandaswami Pillai, J. The  decision of. the Allahabad High Court in Lal  Singh  v.

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Ghansham Singh (1) does not assist the (1)  (1857) I.L.R. 9 All. 625 F.B. 58 plaintiffs  in  support of the plea that the  reference  the Full  Brench  was  invalid and the  Mysore  High  Court  was incompetent to hear the reference.  In Lal Singh’s case %,be majority of the Court held that "Where a Bench of two Judges hearing  an appeal and differing in opinion  have  delivered judgments  on the appeal as judgments of the  Court  without any reservation, they are not competent to refer the  appeal to other Judges of the Court under s. 575 of the Civil  Pro- cedure Code of 1882)." In that case, a reference was made on a  difference  of  opinion between two  Judges,  but  not  a question of law.  By a. 575(2), Civil Procedure Code,  1882, difference  on  a  question  of law  being  a  condition  of reference, the reference was manifestly incompetent; it  was so  pointed out by Brodhust, J., who was one of  the  Judges composing the original Bench of Judges who differed.   There is,  however, no such restriction in s. 15(3) of the  Mysore High  Court Regulation, 1884.  Again, the principle  of  Lal Singh’s  case as broadly enunciated by the majority  of  the Court  has  not been approved in man, later cases  in  other High  Courts;  for instance, Karali Charan Sarma  v.  Apurba Krishna  Bajpeyi (1), Umar Baksh v. Commissioner  of  Income Tax, Punjab (2) and Jehangir v. Secretary of State (3).   In these  cases it was held that in each case the  question  is one of intention of the Judges differing in their  opinions. The Mysore High Court held in Nanjamma v. Lingappa (4)  that it  is  not illegal to refer a case under s.  15(3)  of  the Mysore  High  Court  Regulation,  1884,  after  the   Judges differing have recorded judgments including the final orders they  are  to make, and without any  reservations.   It  was observed  in the judgment of the Court ",The  long  standing practice  of  this Court Is that one of the Judges  makes  a reference by a mere record in the order (1) (1930) I L.R. 58 Cal. 549. (2)(1931) I.L.R. 12 Lah. 725. (3) (1903) 6 Bom.  L.R. 131, 206. (4) 4 L.R. Mys. 118. 59 sheet  after the judgements are separately  pronounced."  It appears  therefore that there was a settled practice in  the Mysore  High  Court  to refer cases  under  s.  15(3)  after delivering differing opinions including the final orders  to be passed in the appeal on such opinions.  In adjudging  the competence  of the foreign court it would not be open to  us to ignore the course of practice in that court even if it be not strictly warranted by the procedural law of that  State. Whether  the procedure of the foreign court which  does  not offend natural justice is valid is for the foreign court  to decide  and not the court in which the foreign  judgment  is pleaded  as  conclusive.  In Brijlal Ramjidas  v.  Govindram Gordhandas  Seksaria (1) the judicial Committee  in  dealing with  the  authority of the Indore High  Court  to  transfer proceedings  from  the District Court of Indore  observed  : "the question whether-a foreign Court is the "proper  Court" to deal with a particular matter according to the law of the foreign  country  is  a  question for  the  Courts  of  that country.  There is no doubt that some Court in Indore was "a Court of competent jurisdiction." It was for the High  Court of Indore to interpret its. own law and rules of  procedure, and its decision that the High Court was the "proper"  Court must be regarded as conclusive." The Madras High Court could not  therefore  investigate the propriety of  the  procedure followed by the Mysore High Court referring the case to  the

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Full  Bench  and the judgment of the Mysore Full  Bench  was therefore  not exposed to the attack of want  of  competence because   the  case  was  referred  after  the  two   Judges constituting  the Beach had delivered separate and  complete opinions expressing their views on the points in dispute. In  the  plaint  in the Bangalore District  Court  suit  the plaintiffs claimed possession of the proper (1)  (1947) L.R. 74 I.A. 203. 60 ties  set out in the schedule on the ground that  those  and other properties belonged to the joint family of which  they and  their father Ramalingam Mudaliar were members,  and  to which  they  were entitled by survivorship on the  death  of Ramalingam.   In Schedule ’B’ to the plaint the  first  item was  the  business  at Kolar Gold  Fields.   The  claim  was decreed  by the trial court but the High Court reversed  the decree and dismissed the suit.  The Attorney-General submits that  the judgment of the Mysore High Court  was  conclusive between  the parties in respect of all  matters  adjudicated thereby  and the Madras High Court in considering the  claim of  the plaintiffs in the suit before it was  debarred  from investigating whether the Kolar Gold Fields business was the separate  property  of  Ramalingam.  The  issue  as  to  the ownership  of the Kolar Gold Fields business being  directly adjudicated  upon  by  the  Mysore  High  Court,  which  was competent in an international sense as well as according  to the  municipal  law  of  Mysore  in  that  behalf,  it   was submitted,  that  adjudication was  conclusive  between  the parties  in  the Madras suit.  Reliance in support  of  this submission  was  placed  upon  the  definition  of   foreign judgment’ in s. 2 (9) of the Civil Procedure Code, 1908, and the use of the expression ,’matter’ in s. 13 of the Code. A  foreign judgment is conclusive as to any matter  directly adjudicated  upon  thereby;  but it  does  not  include  the reasons  for the judgment given by the foreign court.   What is conclusive under s. 13 of the Code of Civil Procedure  is the  judgment,  i.e., the final adjudication,  and  not  the reasons  Brijlal  Ramjidas  v.  Govindram  Gordhandas.  (1). Section  13  in essence enacts a branch of the rule  of  res judicata in its relation to foreign judgments, but not every foreign judgment is made conclusive in the Indian Courts  by s. 13.  To be conclusive, (1)  (1947) L.R. 74 I.A. 203. 61 a foreign judgment must be by a court competent both by  the law  of  the  State  which has  constituted  it  and  in  an international  sense, and it must have directly  adjudicated upon  the  "matter" which is pleaded as res  judicata.   The expression  "matter" in s. 13 is not equivalent  to  subject matter;  it means the right claimed.  To be  conclusive  the judgment of the foreign Court must have directly adjudicated upon  a  matter, the adjudication must be between  the  same parties, and the foreign Court must be a court of  competent jurisdiction.   Story  in  his "Conflict  of  Laws",  Eighth Edition  at  p.  768 s. 551 says "In  respect  to  immovable property  every attempt of any foreign tribunal to  found  a jurisdiction  over  it must be from the very nature  of  the case,  utterly  nugatory, and its decree must  be  for  ever incapable  of  execution in rem." Similarly,  Dicey  in  his "Conflict of Laws" 7th Edition, Rule 85, enunciates the rule as follows: "All rights 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  (ex situs)." The-exceptions for the purpose of  the present  case are not material.  In the comments  under  the

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Rule, Dicey states at p. 513:               "The  sovereign of the country where  land  is               situate  has  absolute control over  the  land               within  his  dominion:  he  alone  can  bestow               effective right over it; his courts alone  are               as  a rule, entitled to exercise  jurisdiction               over such land.  Consequently, any decision by               an English Court which ran counter to what the               lex  situs had decided or would  decide  would               be, in most cases a brutum fulmen." In Compandia de Mocambique v. British, South C. De Souza  v. Samb (1)  Wright, J., observed at p. 366:    "The     proper conclusion appears to be that, (1) [1891] 2 Q.B. 358. 62 speaking  general,  subject to qualifications  depending  on personal   obligation,   it  is  a  general   principal   of jurisdiction   that  title  to  land  is  to   be   directly determined, not merely according to the law of the  country, where  the  land  is  situate, but by  the  Court,  of  that country, and this conclusion is in accordance with the  rule ordinarily adopted by the jurisprudence of other countries". Title  to  immovable property may  therefore  be  determined directly or indirectly only by the law of the State, and  by the courts of the State in which it is situate.  A  decision of  a foreign Court directly relating to title to  immovable property within its jurisdiction will of course be  regarded between  the  same parties as conclusive by  the  Courts  in India: but that decision is ineffectual 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 be 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  the 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 property must be decided 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. In Boyse. v. Colclough (1) the Court of Chancery in  England was  called  upon to consider the effect to be  given  to  a decree of an Irish Court determining the validity of a  will of one Colclough who died (1)  [1855] K. & J. 124: 69 E.R. 396. 63 leaving lands in England and Ireland.  The Court in  Ireland in  a proceeding relating to the will declared  it  invalid. The plaintiff to whom the estate was devised under the  will by  Colclough,  thereafter  filed a bill  in  the  Court  of Chancery  in  England  insisting upon the  validity  of  the will,, and for a declaration that the immovables in  England passed  under  and as devised by the  will.   The  defendant insisted  that  the decree of the Court in  Ireland  was  in regard  to the validity of the will conclusive as the  judg- ment  was of a court of competent jurisdiction  between  the parties. page Wood V. C. rejected the defendant’s plea.   He observed  ",The foreign Court in this case did not  try  and could not try the effect of the will of the testator on land in England.  It is impossible that the question could  even,

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in  any shape be raised before that Court in that suit,  or, apprehend,  in any suit.  The Court had before it a  certain alleged  will, purporting to devise certain  Irish  estates, and  it directed an issue to try the validity of that  will. The  issue was founded against the validity of the will  and the  Court  then decided upon the only thing upon  which  it could  decide,  namely,  that that  instrument  was  not  an operative devise of the Irish estates." This case was  again brought  before the Court, and the judgment is  reported  in (1855)  K. & J. 502--69 E. R. 557.  It was directed that  to prevent  misconception an order of the Court of Chancery  in England,  establishing the will should be expressly  limited to  the  extent  of the  jurisdiction.   In  Chockalinga  v. Doraiswamy(1)  a dispute arose between two persons  each  of whom  claimed  the right to trusteeship of  three  religious endowments  known  as  Chidambaram,  Mailam  and   Alapakkam charities.  Of the Chidambaram charities all the lands  were in  British Tndia and the charities were to be  carried  out also  in  British  India.   In  the  Mailam  charities   the performance  was  to  be in British  India  and  Pondicherry (French (1)  (1927) I.L.R. 51 Mad. 720. 64 territory), and a large majority of the immovable properties were  in  Pondicherry and only one in British India.   In  a suit filed in the Subordinate Judge ’s court at Pondicherry, the  trial  court held that the first  defendant  Doraiswamy could  not  act  as trustee  because  the  original  trustee Murugayya had no power to appoint him.  The Appellate  Court reversed the decision and held that Doraiswamy was  properly appointed.  A suit was then instituted in the British Indian Court in which the question as to the right of Doraiswamy to function in respect of immovable property_ in British  India was questioned.  The Court held that to Alapakkam charities, neither  the plaintiff nor the 1st defendant had any  rights because  by the deed of settlement the right of  trusteeship descended to the sons of Mtirugayya.  About the  Chidambaram charities  it  was hold by the court  that  the  Pondicherry court had no jurisdiction as all the properties were situate in  British  India and "Charities were to be  performed"  in British  India.   About  the  Mailam  charity,   Kumaraswami Sastri, J., held that in respect of the property in  British India  the order was not binding, but having regard  to  the nature of the trust and the inexpediency of having  separate management and appropriation of the income of the trust  the British  Indian Courts would be justified in  upholding  the claim  of the trustee appointed by the Pondicherry court  in respect  of that charity. Srinivasa Aiyangar, J., held  that as  the  Mailam  charity had its "domicile"  in  the  French territory,  the decision of the French Court with regard  to the  appointment of the trustee, and recovery by him of  the office  of  trustee was a decision of a Court  of  competent jurisdiction  within  the meaning of s. 13, Code  of  Civil Procedure.   The  judgment  proceeded  upon  the  theory  of "domicil"  of  the  trust which the  learned  Judge  himself characterised  as  "inappropriate" but he held  that  "on  a proper application and appreciation of principles of Private International Law" in disputes 65 relating to the office of trusteeship the court of competent jurisdiction within the meaning of s. 13 is the court  which can  be regarded as court of the situs of the trust.  It  is difficult  to  accept  this  view  expressed  by   Srinivasa Aiyangar,  J.  It  is, however,  noteworthy  that  both  the learned  Judges held that the decision of the foreign  court

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qua the Chidambaram and the Alapakkam trust was not  binding on the Indian Courts. The  decisions in Samson Ricardo and Johan Lewis Ricardo  v. Garcias  (1),  Elizabeth Hendren v. Bathal Hendren  (2)  and Bank  of Australia v. Nios (3) on which the  executors  rely are  not of cases in which an issue decided by  the  foreign court  was  regarded as conclusive in the trial  of  a  suit relating  to  title to immovable property in  England.   The decision in.  Dogliani v. Crispin (4) also does not  support the  plea of the executors.  In that case the judgment of  a Portuguese   Court  holding  that  the  defendant  was   the illegitimate son of one Henry Crispin and entitled according to  the  law of Portugal to inherit the  property  of  Henry Crispin  who  was  of a particular  station  in  society  (a plebian  and not noble), and was domiciled in  Portugal  was held binding between the parties in an administration action in the Court of Probate in England between the same  parties relating to Government of England Stock.  The Court in  that case was not called upon to decide any question of title  to immoveables in England. The rule of conclusiveness of a foreign judgment as  enacted in  s.  13 is somewhat different in its operation  from  the rule  of  res  judicata.  Undoubtedly  both  the  rules  are founded   upon  the  Principle  of  sanctity  of   judgments competently  rendered. But the rule of res judicata  applies to all matters (1)  (1845) 12 Clark & Finnolly 367 : 8 E. R. 1450. (2 )  (1844) 6 Q. B  287 : 115 E R. 311. (3)  [1851] 16 Q. B. 717 : 117 E. R. 1055 (4)  L. R. (1810)1. English & Irish Appeal Cases 30’. 66 in issue in a former suit which have been heard and  finally decided  between  the parties, and  includes  matters  which might  and  ought  to have been made  ground  of  attack  or defence  in the former suit.  The rule of conclusiveness  of foreign   judgments   applies  only  to   matters   directly adjudicated upon.  Manifestly, therefore, every issue  heard and  finally  decided in a foreign court is  not  conclusive between  the parties.  What is conclusive is  the  judgment. Again, the competence of a Court for the application of  the rule of res judicata falls to be determined strictly by  the municipal  law; but the competence of the  foreign  tribunal must  satisfy a dual test of competence by the laws  of  the State  in  which  the  Court  functions,  and  also  in   an international sense. The  submission of the Attorney-General that the claim  made by  the plaintiffs in the Mysore suits was one  relating  to succession to the estate of Ramalingam, and the decision  of the  Mysore Court which adjudicated upon the question as  to the  right to succession was conclusive as to all  property- whether  within or without jurisdiction-need not detain  us. The  suit  as  framed did not relate to  succession  to  the estate  of Ramalingam: the plaintiffs claimed that they  had acquired  according to the well-recognised rule relating  to coparcenary property, an interest therein by birth, and that Ramalingam’s  interest  in  the property was  on  his  death extinguished.   Succession  to  the estate of  a  person  is governed by the lex situs in the case of immovables, and  in the  case of movables by the law of his domicile, but  these appeals raise questions not about the law applicable to  the devolution  of  the,  estate,  but  about  title  which  the testator  could  devise  by his will.  That  title  must  be adjudicated upon in the case of immovables by the Courts  of the  country  in which such immovables are  situate  and  on evidence led in that court.

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67 In considering whether the suit filed by the plaintiffs  was one relating to succession, cases like in the matter of  the Hindu  Womens’  right to Property Act, 1937(1), and  in  the matter of the Federal Legislature to provide for the Levy of an   Estate   Duty  in  respect  of  property   other   than agricultural land, passing upon the death of any person  (2) which  deal  primarily ’with. questions as to the  power  to legislate in respect of interest of a co-parcener in a joint Hindu family have little relevance. The  suits  also did not relate to the  personal  status  of Ramalingam  and  his sons.  The plaintiffs  claimed  in  the Mysore  High Court that the will of Ramalingam was  invalid, because  be  was  under  the Hindu  Law,  by  which  he  was governed, incompetent to dispose of thereby the property  of the  joint  family.  The dispute related  primarily  to  the character  of  the  property devised by the  will,  and  the Mysore  High Court held that the property devised under  the will  was his self-acquired property: it did not purport  to adjudicate  upon  any  question of personal  status  of  the parties to the dispute before it. We  may  now  consider the plea that "the  judgment  of  the Mysore  High Court was coram non judice." It was urged  that the  Judges  of the Mysore Court who  constituted  the  Full Bench,  were biased against the plaintiffs, that  they  were interested  in the dispute before them and that they  denied opportunity  to the, plaintiffs to defend the  appeals.   It was  urged by the plaintiffs that Mr. Medappa  who  presided over  the  Full Bench had tried the  probate  proceeding  in which the will of Ramalingam was upheld and in the  judgment in that case bad made severe strictures against ",the family of  the plaintiffs", and the witnesses appearing in  support of the caveators’ case, that Mr. Medappa was a close friend (1) [1941] F. C. R. 12. (2) (1944) F. C. R. 317. 68 of A. Wajid, the first executor under the will, that be  had for  many  years before and after he became a Judge  of  the High  Court  used  a motor car belonging to  the  estate  in dispute and had attempted to dissuade Raju, advocate of  the plaintiffs, from appearing for them in the suit relating  to thee-state.  Against Mr. Balakrishanaiya, it was urged  that he  should  not have Fat on the Full Bench as he was  to  be examined as a witness in the matter relating to proof of the settlement  of the dispute between the parties, that he  bad made  up his mind and had delivered a judgment expressing  a final  opinion  on  the merits of the  appeal  and  on  that account  was biased against the plaintiffs, and that he  bad in  the  course of the hearing of the appeals  sitting  with Kandaswami Pillai, J., made diverse observations  indicating that  he  was  not open  to  argument,  reconsideration  and independent conviction on the merits of the dispute.  It was also  urged  that the proceedings in the Mysore  High  Court were  conducted in an atmosphere of  vindictiveness  towards the  plaintiffs and that observations made and  orders  were passed   from   time  to  time  by  Mr.  Medappa   and   Mr. Balakrishnaiya  at  diverse  stages of the  hearing  of  the appeal which left no room for doubt that the two Judges were biassed against the plaintiffs and that they by their orders denied to the plaintiffs an opportunity of presenting  their case before the Court. Before  we deal with the contentions it may be necessary  to dispose of the contention advanced by the executors that  it is  not  open  in this suit to the  plaintiffs  to  raise  a contention about bias prejudice, vindictiveness or  interest

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of  the Judges constituting the Bench.  They submitted  that according  to  recent trends in the development  of  Private International law a plea that a foreign judgment is contrary to  natural justice is admissible only if the party  setting up the plea is not duly 69 served, or has not been given an opportunity of being  head. In  support  of that contention counsel  for  the  executors relied  upon  the statement made by the Editors  of  Dicey’s "Conflict of Laws", 7th Edition Rule 186 at pp.   ’1010-1011 and  submitted that a foreign judgment is open to  challenge only  on  the ground of want of competence and  not  on  the ground   that   it  is  vitiated  because   the   proceeding culminating  in  the  judgment was  conducted  in  a  manner opposed to natural justice.  The following statement made in "Private International Law" by Chesire, 6th Edition pp.  675 to 677 was relied upon:               "The  expression ’contrary to natural  justice               has,   however,  figured  so  prominently   in               judicial  statements that it is  essential  to               fix,  if possible, its exact scope.  The  only               statement  that can be made with any  approach               to accuracy is that in the present context the               expression is confined to  something-glaringly               defective  in  the  procedural  rules  of  the               foreign  law.   As Denman, C. J., said  in  an               early case:               "That   injustice  has  been  done  is   never               presumed, unless we see in the clearest  light               that the foreign law, or at least some part of               the  proceedings  of the  foreign  court,  are               repugnant  to  natural justice: and  this  has               often been made the subject of inquiry in  our               courts."               In  other words, what the courts are  vigilant               to  watch is that the defendant has  not  been               deprived  of  an opportunity  to  present  his               sides  of the case.  The wholesome maxim  audi               alteram  partem is deemed to be of  universal,               not  merely  of  domestic,  application.   The               problem,  in fact, has been narrowed’ down  to               two cases.               The first is that of assumed jurisdiction over               absent                              defendants               a ...........................               70               Secondly, it is a violation of natural justice               if   a   litigant,  though  present   at   the               proceedings,  was unfairly prejudiced  in  the               presentation .of his case to the Court." It  is unnecessary to consider whether the  passages  relied upon  are susceptible of the interpretation  suggested,  for private  international law is but a branch of the  municipal law of the State in which the court which is called upon  to give effect to a foreign judgment functions and by s. 13  of the Civil Procedure Code (Act V of 1908) a foreign  judgment is not regarded as conclusive if the proceeding in which the ’judgment was obtained is opposed to natural justice.  What- ever may be the content of the rule of private international law  relating to "Natural justice" in England  or  elsewhere (and  we will for the purpose of this argument  assume  that the  plea  that  a foreign judgment is  opposed  to  natural justice is now restricted in other jurisdictions only to two grounds-  want of due notice and denial of opportunity to  a party to present case) the plea has to be considered in  the

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light  of the statute law of India; and there is nothing  in s. .13 of the Code of Civil Procedure, 1908, which  warrants the restriction of the nature suggested. By  s. 13 of the Civil Procedure Code a foreign judgment  is made   conclusive   as  to  any  matter   thereby   directly adjudicated  upon between the same parties.  But it is  the essence  of a judgment of a Court that it must  be  obtained after  due  observance of the judicial  process,  i.e.,  the Court  rendering  the  judgment  must  observe  the  minimum requirements  of  natural  justice-it must  be  composed  of impartial persons, acting fairly, without bias, and in  good faith, it must give reasonable notice to the parties to  the dispute  and  afford  each  party  adequate  opportunity  of presenting  his  case.  A foreign judgment  of  a  competent court is conclusive even if it proceeds on an erroneous view of  the evidence or the law, if the minimum requirements  of the judicial 71 process are assured : correctness of the judgment in law  or on evidence is not predicated as a condition for recognition of  its conclusiveness by the municipal court.  Neither  the foreign substantive law, nor even the procedural law of  the trial need be the same or similar as in the municipal court. As  observed by Charwell, J , in Robinson v. Fenner(1)  "’In any view of it, the judgment appears, according to our  law, to  be  clearly wrong, but that of course is  not  enough  : Godard v. Gray (2) and whatever the expression "contrary  to natural justice", which is used in so many cases, means (and there  really is very little authority indeed as to what  it does  mean),  I think that it is not enough to  say  that  a decision  is very wrong, any more than it is merely  to  say that it is wrong.  It is not enough, therefore, to say that the result works injustice in the particular case, because a wrong  decision  always  does."  A  judgment  will  not   be conclusive,  however,  if  the proceeding in  which  it  was obtained  is opposed to natural justice.  The words  of  the statute  make it clear that to exclude a judgment under  el. (d)  from the rule of conclusiveness the procedure  must  be opposed to natural justice.  A judgment which is the  result of bias or want of impartiality on the part of a Judge  will be  regarded as a nullity and the "trial coram  non  judice" (Vassilades  v.  Vassilades and Manik  Lal  v.Dr.Prem  chand (4)). We  may now deal with the diverse objections raised  against the  two  Judges-Mr.   Medappa  and Mr.   Balakrishanaiya- alleging  bias and partiality against them and also  against the   court  collectively.   In  proceeding  to  deal   with evidence,  it has to be remembered that we are dealing  with the judgment of a foreign tribunal constituted according to the  laws of the foreign State for hearing the  appeal.   We also  cannot forget that the conduct of the  plaintiffs  and their. lawyer may have (1)  [1913] 3. K. B. 835, 842. (2)  [1870] L.R. 6 Q. B. 139. (3)  A.I R. 1945 P.C. 33,40. (4)  [1957] S. C. R. 575. 72 appeared  to the learned Judges as asking  for  unreasonable indulgence if not offering deliberate obstraction, and  that the  Judges in passing the diverse orders on which the  plea of  bias, prejudice and interest were sought to  be  founded were   primarily  concerned  with  effective  progress   and disposal of the appeals. It  is somewhat unfortunate that all the  material  evidence which had bearing on the case as to the allegations of bias,

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prejudice  interest  and hostility has  because  of  certain orders  passed  by the Madras High Court not  came  on.  the record.  Again Raju, the advocate of the plaintiff could not be examined at the hearing of the suit as he was  undergoing a long term of imprisonment and the commission issued by the Madras  High Court to examine him as a Witness could not  be executed owing to, what Ramaswamy, J., in his characteristic style  states, "interminable legal obstacles and  conundrums which  arose." For the examination of Mr. Medappa  an  order was  made and commission was issued but the  executors  did not ultimately examine him.  Mr.Balakrishanaiya was examined in  Court but even his evidence was not full because of  the order  passed  by Rajagopalan, J. restricting the  scope  of enquiry of conclusiveness laid down by him on the issue  and which  was  confirmed  by the Appellate Court.   It  may  be recalled that the executors applied to the learned Judge for an  order that the suit be heard on the  preliminary  issue, that it was "barred as res judicata because of the  judgment of  the Mysore High Court" and for examination of  witnesses in  Bangalore  on  the  plea set up  by  the  plaintiffs  of pronounced  hostility and bias on the part of  Mr.  Medappa, and Mr. Balakrishanaiya.  The learned Judge passed an  order that on the allegation that had been made on the application against  the two Judges of the Mysore High Court it was  not permissible to embark upon an investigation relating to  the manner in which the appeals were conducted 73 or  with  reference  to  their  decisions  in  other   legal proceedings  connected  or otherwise with the  appeals  that they eventually heard.  But on the plea of bias,  prejudice and hostality the evidence relating, to the manner in  which the  proceedings  were conducted by the Judges  and  various orders made were, in our judgment, material.  Rajagopalan J. permitted  evidence to be led on two matters only  (1)  that Mr. Medappa was using a motor car belonging to the estate of the  deceased, and (2) that Mr. Medappa had sent  for  Raju, counsel for the plaintiffs and bad attempted to dissuade him from taking Up the case of the plaintiffs and appearing  for the  plaintiffs’  family.  In appeal against  the  order  of Rajagopalan,  J.,  the High Court of Madras  held  that  the enquiry into the use of the "Mercedes car" belonging to  the estate  by  Mr. Medappa was not  permissible.   The  learned Judges  observed:  "It  is not as  if  the  plaintiffs  have alleged  that Medappa, C.J. had claimed the Mercedes car  to be  his  own and was therefore, not a  person  competent  to decide  on the title to the properties under a. 13 (a).   It was merely alleged that he used the car for himself and  his wife  and children.  It was not even stated whether  he  had used  the oar free or for hire.  There was no claim  by  the plaintiffs  or  others  on Medappa, C.J., for  any  dues  in respect, of the alleged use of the car.  The car itself  was alleged  to have been used in 1943-45 when Medappa,  C.  J., was  District Judge, Bangalore Cantonment, and  was  hearing the probate application.  It was sold away in 1945 or  1946, long  before Medappa, C. J., sat on this Full Bench.  It  is too much to say that, from these facts C. J., would be coram non judice, or he had identified himself with the executors, and that his taking part in the Full Bench would, be opposed to  natural justice." These observations  contained  certain statements  which  are either in exact or not  supported  by evidence.  According to the plaintiffs, Mr. Medappa  because a Judge of the High Court at 74 Mysore  in 1944 and that is amply supported by  evidence  on the record.  Against, our attention has not been invited  to

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anything on the record that the Merceds-car" was disposed of in  the year 1915-46.  But the evidence relating to the  use of the motor car was-excluded by this order. About  the attempts made by Mr Medappa to persuade Raju  not to  appear  for  the plaintiffs in the  District  Court,  no direct  evidence  was led.  The direct  evidence  about  the alleged  dissuasion  of Raju could only be of Raju  and  Mr. Medappa, but this evidence has, because the parties did  not choose  to examine them, not come on the record.   But  some indirect evidence was sought to be led before the High Court about the alleged dissuasion.  Raju had made an affidavit in June 1950 in this Court in certain proceedings taken by  the plaintiffs   for  the  issue  of  a  writ   of   prohibition restraining  execution of the decree passed in Appeals  Nos. 104  and  109 of 1947-48 of the file of the  High  Court  of Mysore  on  the  ground that because  Mr.  Medappa  and  Mr. Balakrishanaiya   who  were  members  of  the   Bench   were incompetent  for  diverse  reasons to hear  and  decide  the appeals,  the judgment of the High Court was a nullity.   In that  affidavit Raju stated that he was an Advocate for  the plaintiffs who had filed two suits against the executors  of the estate of Ramalingam and that "during the later part  of 1945  and  the beginning of 1946," Mr. P. Medappa  who  was. then a Puisne Judge of the High Court of Mysore,  Bangalore, tried  to  dissuade him from appearing for  the  family  of Ramalingam  and  vehemently criticised the  family  members. This  was not evidence on which the Court could  act.   Raju was alive and could be examined : the Court had not directed proof  of any facts by affidavits, and the executors had  no opportunity to cross-examine Raju on the statements made  in the affidavit.  Vishwanath the first plaintiff deposed 75 that  sometime before the hearing of the appeals before  the Fall Bench of the Mysore High Court he was told by Raju that Mr. Medappa had tried to dissuade him from appearing for the plaintiffs  in the District Court of Bangalore.  He  further stated  that  on  July 25, 1949, during the  course  of  the hearing of the appeals before the Full Bench Raju had stated in open Court that "he was not competent to take up the case on account of the dissuasion by the Chief Justice" and  that "Chief  Justice Medappa had ’sent for him and dissuaded  him from  appearing on behalf of Ramalinga’s family.   Thereupon Chief Justice Medappa felt upset and refused to hear"  Raju. He also deposed that Mr. Puttaraj Urs (who was for some time a Judge of the Mysore High Court had told him that Raju  had told  Urs that Medappa had asked him Raju not to appear  for the "plaintiffs" "family" and had sent for him and dissuaded him  from  appearing  for  Ramalinga’s  family.    Elaborate argument  were advanced before us as to the truth of the   statements made by Vishwanatha and Puttaraj Urs. It was urged that  the statement  about  the dissuasion of Raju was  made  for  the first  time in the Madras High Court on April 7,  1950,  and that it was not made by Vishwanath in the Mysore Court or in the   petitions  to  H.  H.  The  Maharaja  of  Mysore   for constituting "an ad hoc Bench" for hearing the appeals.   It was  pointed  out  that  there  were  atleast  two   earlier occasions in the Madras High Court in which Vishwanath could have  made the allegations relied upon by him in  his  affi- davit dated April 7, 1950.  Strong reliance was also  placed upon  a letter dated August 21, 1952, addressed by  the  1st plaintiff  Vishwanatba to the executor Abdul Wajid that  the allegations  made  in Application No. 444 of  1950  and  the affidavit filed in the Madras High Court that the Judges  of the  Mysore High Court were prejudiced and that Mr.  Medappa had used the "estate

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76 motor-car"  and  bad  asked  Raju  not  to  appear  for  the plaintiffs had been put forth by him as their advocates told him  that  they  were the only  method  of  challenging  the judgment of the Full Bench and that he had been assured that those  allegations were true and that they would supply  the evidence in support of these allegations and it was at their instance and believing their assurances that he incorporated the  allegations  in his affidavit.  It was  further  stated that  he was not able to find any credible evidence at  that time  to support these allegations and hence  withdrew  them all and proposed to lot in no evidence on those  allegations for the decision of the preliminary issue. This  question does not call for any  detailed  examination. There is no direct evidence about the alleged dissuasion  of Raju by Mr. Medappa during the course of the hearing in  the trial Court, and the indirect evidence is mostly hearsay and otherwise  infirm.  The evidence of Puttaraj Urs has  little value  he has no personal knowledge about the     attempted dissuasion of Raju by Mr. Medappa.      He only relates what he heard from Raju.  But the  truth of the statement  cannot be  established  by this indirect method.  The  evidence  of Vishwanath  as to what Raju told him before the  hearing  of the  appeals is also of no value.  About the incident  which took  place  in  the Court on July 25, 1949,  there  is  the statement   of  Vishwanatha  on  the  one  hand   which   is contradicted  by  Abdul  Wajid and  Narayanaswamy,  the  two executors, and no questions in that behalf were asked to Mr. Balakrishanaiya.   In  this state of the record  we  do  not think  that  we would be justified in disagreeing  with  the High  Court that the case that Mr. Medappa  persuaded  Raju, counsel for the "plaintiffs, family" has not been proved. We  may, however, state that we are unable to accede to  the contention raised on behalf of the 77 executors  that the letter dated August 21, 1952,  furnishes evidence  that the allegation regarding dissuasion  of  Raju and  about  the use of the motor car of the  estate  was  an after-thouht and made by Vishwanatha at the instance of  his advocate.  This letter was written when Suit No. 214 of 1944 was  pending in the High Court at Madras.  In that suit  the judgment  of  the Mysore High Court was  challenged  on  the ground that the Judges who heard the appeals were interested and biassed, and liberty was reserved by Rajagopalan, J., to the  plaintiffs to lead evidence on those two matters  only. We are unable to believe that of his own accord  Vishwanatha would   address   a  letter  to  the  executor   Wajid   and substantially  destroy  his  case  for  setting  aside   the judgment  of the Mysore High Court.  Vishwanatha has  stated in his evidence that he prepared the letter at the  instance of  Wajid to "prove his bona fides with Medappa." He  stated that  the letter was written at Bangalore, in the office  of one Subramaniam brother of the executor Narayanaswami in the presence of Wajid about 2 or 3 months prior to August, 1952, and  that about that time there were "meetings and talks  of commissioner  and  that Wajid had told him that  the  letter "was necessary to prove the bona .fides with Medappa  before reaching  the  compromise."  Wajid has denied  that  he  had persuaded  Vishwanatha to write the letter.  But  the  story about  delivery of the letter at the residence of  Wajid  is highly improbable.  Wajid says that the letter was delivered by hand by some unknown person at his place in his  absence. This  letter  was followed by another  letter  addressed  to Subramaniam  brother of the executor  Narayanaswami  dated August 25, 1952, in which there is a reference to the letter

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dated  August 21, 1952.  This letter was addressed to S.  N. Subramaniam,  brother of Narayanaswami, and recites  that  a copy of the letter addressed to Wajid dated                              78 August  21  1952,  was sent to Subramaniam  By  that  letter Viswanatha  requested  Subramaninm as  "well-wisher  of  the family"   and  a  friend  of  his  father  "to   take   into consideration  the  plight in which the family  was  and  to intercede"  on their behalf "with the executor to secure  as much benefit as possible by way of compromise." A  photostat copy  of  this  letter  has also  been  produced  by  Wajid. Vishwanatha stated that even this letter was prepared at the instance  of Wajid.  He asserted that the first  letter  was prepared  on the representation that it was to be  shown  to Mr.  Medappa, and the second letter was composed  by  Wajid. Wajid,  bad  denied the allegations.  We do not  think  that Vishwanatha voluntarily wrote the two letters admitting that the allegations that Medappa was biassed against him and the ground  for  such allegations were invented  shortly  before April  7,  1950,  at  the instance of  the  lawyers  of  the plaintiffs. Mr. Medappa did try the probate proceeding and dismissed the caveat  filed by The plaintiffs but on that account  we  are unable  to  hold  that be had any interest  in  the  subject matter of the appeals or was biased against the  plaintiffs. Our  attention  has  not been invited to  any  part  of  the judgment  in the probate proceeding which might. supply  any ground  for  inferring  bias.   Even  though  some  of   the witnesses  in  the probate proceeding and in  the  suit  for declaration  of  title of the plaintiffs to  the  properties were  common it would not be possible to infer  bias  merely from  the circumstances that Mr. Medappa as  District  Judge tried  the  earlier suit in which the enquiry  was  strictly restricted  to the validity of the *ill and be  subsequently was  a  member of the Full Bench of the  Mysore  High  Court which   decided  the  question  of  title  set  up  by   the plaintiffs. 79 The plea that Mr. Medappa and Wajid were close friends  does not  appear  to have been denied by the executors.   In  his affidavit   filed  in  June,  1950,  the   first   plaintiff Vishwanath  alleged  that Mr. Medappa was a  friend  of  the executors, and that Mr. Medappa was the Chief Steward of the Trurf  Club and the first executor Wajid was  the  Secretary and  that they were "intimate and bosom friends," Wajid  did not  deny these allegations.  He merely stated that he  "was once  the  Hony.  Secretary of the Bangalore Race  Club  for about  three  months  on  account  of  the  removal  of  the permanent secretary.  As a Stop-gap arrangement, (he)  being a  Committee  Member was appointed to act as  secretary  for this short period.  Mr. Justice P. Medappa was appointed  by His  Highness  the Maharaja as a steward of the  club",  and submitted  that  "it was insulting and improper  to  suggest that a Judge was biassed because he came into social contact with  other  gentlemen  of the State in the  course  of  his public  and social activities.  In his affidavit dated  July 5, 1950, Vishwanath stated that Mr. Medappa and Abdul  Wajid have  "been  very  intimate friends, and chums  for  over  a decade." Mr.  Balakrishanaiya,  it  is true,  did  hear  the  appeals sitting  with  Chief  Justice  Paramsbivayya.   It  is   the plaintiffs’  case  that after hearing arguments for  over  a fortnight,  Mr. Balakrishanaiya suggested that  the  parties should  compromise  the dispute.   Mr.  Balakrishanaiya  has denied   this  statement  ;  be  stated  that  the   parties

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themselves decided to negotiate a compromise.  Even if it be true that be suggested that the possibility of a  compromise of  the  dispute  be explored, bias on his  part  from  that suggestion cannot be inferred.  It is also true that sitting with Kandaswami Pillai, J., on March 15,1949, he declined to order  an  enquiry  into  the  compromise  set  up  by   the plaintiffs on the ground that to record the compromise would "result in the entire 80 intention  of  the  testator  being  completely  negatived." Assuming  that  the  order was, in  law,  incorrect-on  that question  we cannot express any opinion-the making  of  this order  will not justify an inference of bais on the part  of Mr.Balakrishanaiya. It was also alleged against him that he bad never "disguised his hatred" of the "widow and  children of  Ramalingam" and had "openly declared it by his  frequent observations   and  interruptions  in  the  course  of   the plaintiffs’  counsel’s arguments" (vide affidavit  field  in June  1950, in the proceedings in this Court for a  writ  of prohibition).   It was further alleged in the  affidavit  of Vishwanath dated April 7, 1949, that Mr. Balakrishanaiya had from the beginning become ,"openly hostile and his hostility had become pronounced after the retirement of Chief  Justice Paramshivayya."  In the course of his cross-examination  Mr. Balakrishatiaiya  denied the suggestion that he was  hostile to  the members of "the plaintiffs’ family".  As no  enquiry was  permitted to be made on these matters by the  order  of Rajagopalan, J., evidently all the material evidence is  not before the Court.  Vishwanath in his evidence has not spoken about  the  statements  alleged to have  been  made  by  Mr. Balakrishanaiya  from  which bias may be inferred.   We  are unable  to  hold, therefore, on the plea of  the  plaintiffs that  the conduct of Mr. Balakrishanaiya at the  hearing  of the appeal sitting with Kandaswami Pillai, J., supports  the plea  that  he was biassed.  The contention that  after  the plaintiffs had informed the Court Mr. Balakrishanaiya was to be  examined  as a witness in the compromise  petition,  the latter  should  not have set in the Fall Bench has,  in  our judgment,  no substance.  The application for recording  the compromise was disposed of on March 15, 1949, and the  Court without  enquiring  into  the  truth  or  otherwise  of  the compromise  set up, declined to permit such a compromise  to be made a decree of the Court of the sole ground that it was "contrary 81 to the intention of the testator." There could,  thereafter, be  no scope for any enquiry into the truth of the plea  set up  by the plaintiffs about the compromise between them  and the executors. It  would  have  been more consonant  with  justice  if  the application  for  recording  a  compromise  was  posted  for hearing before a Bench of which Mr. Balakrishanaiya was  not a  member especially when the plaintiffs formally  ;objected to  him,  but  from the circumstance that of  the  bench  as constituted he was a member, an inference of bias cannot  be raised.   Even according to Vishwanath, Mr.  Balakrishanaiya stated  that he was "sitting for hearing the  appeals"  with Kandaswami  Pillai,  J., because he was so directed  by  the Chief Justice, and that Mr. Balakrishanaiya gave Vishawanath liberty  to  move  the  Chief  Justice  for  an  order   for constituting another Bench.  Vishwanath says that he did  go to  see the Chief Justice but the Chief Justice ordered  him out of his Chamber. The last ground on which the plea of bias is set up is  that Mr.  Balakrishanaiya had delivered a judgment on the  merits

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of the dispute and had incorporated therein the final  order to  be passed in the appeal, and thereafter he referred  the case to the Full Bench and sat as a member of the Full bench after  making  up  his mind on the merits  of  the  appears. This,  it is contended, is opposed to natural  justice.   It was submitted that it is of the essence of a judicial  trial that  the  Judge  should  be  unbiassed  and  must  have  no predilections  for  either  side,  but  Mr.  Balakrishanaiya having  made  up his mind on the merits of  the  dispute  of which fact the judgment delivered by him is strong evidence, be was incompetent to sit in the Full Bench for hearing  the appeals. Our  attention  was invited by the  Attorney--General  to  a large number of decisions of the Courts 82 in  India  and England in support of his plea  that  in  the absence  of a statutory provision a Judge is not  prohibited from sitting in an a appeal or in an application against his judgment.   Our  attention was also invited to a  number  of decisions  of the Allahabad High Court in which it was  held that  in  reference  under  s. 575  of  the  Code  of  Civil Procedure 1882, the Judges differing should sit on the Bench together  with  other Judges and decide  the  appeal  (e.g., Rohilkhand  and  Kumaon  Bank Ltd. v. Row and  also  to  the practice  prevailing  in certain Chartered  High  Courts  of Judges  presiding at the Sessions trial being associated  at the  hearing  oil  a certificate granted  by  the  Advocate- General  under el. 26 of the Letters Patent, e.g., The  King Emperor  v.  Barendra Kumar Ghosh (2) and Emperor  v.  Fateh Chand Agarwalla (3), and to cases in which in appeals  under cl.  10  of the Letters Patent of the Allahabad  High  Court Judges who decided the proceeding in the first instance  sat in  the Court of Appeal, e.g., Lyell v. Ganqa Dai (4),  Daia Chand  v. Sarfraz (5), Imam Ali v. Dasaundhi Ram (6),  Nanak Chand  v. Ram Narayan (7), Rup Kuari v. Ram Kirpa  Shukul(8) and  Kallu  Mal  v.  Brown(9), and  also  to  the  statutory provision  of  O.XLVII of the Civil Procedure Code  of  1908 permitting  review  before the Judge who decides a  suit  or appeal.  Reliance was also placed upon R. v. Lovegrove  (10) in which it was held that on an application or appeal to the Court  of  Criminal Appeal (in England) there is  a  general rule no object on to the trial Judge sitting as a member  of the Court to hear the application or appeal.  It may appear, that in the absence of a statutory provision the fact that a judge sits in appeal or in an application against a judgment after (1) [1884] I.LR.6 All. 468 (2)A.I.R. 1924 Cal. 75 257. (3, (1916) I.L.R. 44 Cal. 477. (4)(1875)I.L.R. I All 60. (5) (1875) I.L.R. 1 All. 117. (6)(1877) I.L.R. I All. 508. (7) (1879) I.L.R. 2 All. 181. (8)(1880) T.L,R. 3 All. T41. (9) (1881) I. L.R. 3 All. 504. (10)(1951) I All. E.R 804. 83 he  has  decided  the case would not by  itself  render  the judgment  of  the Court invalid.  In  a  strictly  technical sense  therefore  it  is true to say that  a  Judge  is  not incompetent  to sit in an appeal or application against  his own  judgment.  But the courts are not merely  concerned  to deal with cases in a rigid spirit of legalism.  It is of the essence of a judicial trial that the atmosphere in which  it is  hold  must be of calm detachment and  dispassionate  and unbiassed  application of the mind.  It may be pertinent  to observe  that  since the Federal Court was  constituted  and after  this  Court  was invested with  jurisdiction  to  try appeals  there  has occurred no case-our attention  has  not been invited to any-in which a Judge who bad tried a case in

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the  High Court or elsewhere sat in appeal against  his  own judgment sitting in the Federal Court or in this Court.  The practices prevailing in the High Courts of including a Judge against  whose  judgment  an appeal or  proceedings  in  the nature  of an appeal is filed, appears to have  also  fallen into  desuetude and it is proper that it  should.   Whatever may have been the historical reasons in England and whatever may be the technical view as to the constitution of a  Bench in  which one or more Judges sit after they  have  expressed their  opinion-not tentative but final,-the  practice  which permits a Judge to sit in appeal against his own judgment or in  cases  in which he had an opportunity of making  up  his mind  and  to express his conclusion on the  merits  of  the dispute has little to commend itself for acceptance.  We are therefore  unable  to agree that the circumstance  that  Mr. Balakrishanaiya  delivered  a final opinion in  the  appeals filed by the plaintiffs and thereafter sat in the Full Bench even  after  objection was raised by the plaintiffs  to  his participation may be discarded altogether from consideration in deciding whether in the light of other 84 circumstances the plaintiffs had a fair trial and they  were afforded  an adequate opportunity of presenting  their  case before an unbiassed court.  If the circumstances established by  the other evidence disclose a prima facie case of  bias, the  fact  that  Mr.  Balakrishanaiya  notwithstanding   the objection  raised by the plaintiffs sat in the  Full  Bench, after expressing his final opinion may have to be taken into account. We  may now proceed to deal with the grounds on which it  is claimed on behalf of the plaintiffs they had no  opportunity of  being  heard before the Full Bench of  the  Mysore  High Court  consisting  of  unbiassed  Judges.   The   plaintiffs succeeded before the District Judge in establishing that the property  disposed  of  by  Ramalingam  by  his  will  dated September 10, 1942, was joint-family property.  Against that decision  appeals were filed in December 1947.  The  appeals were taken up for hearing in September 1948: and the hearing lasted  more than a fortnight.  On September 20,  1948,  the Court  adjourned  the proceeding to enable  the  parties  to negotiate a compromise.  It is the plaintiffs’ case that the dispute  was settled, but that is denied by  the  executors. On November 22, 1948, according to the plaintiffs, the terms of  compromise were to be filed in Court, but on  that  date one  of the Judges-Mr.  Paramshivayya did not sit in  Court because  he was "compulsorily retired".  Mr Medappa who  was appointed  Acting Chief Justice was admittedly a  friend  of Wajid, the principal executor under the will of  Ramalingam, The plaintiffs say that Mr. Medappa was biassed against  the members of their. family and they were unwilling to have the appeal  heard by Judges who had dealt with the case or  were close  friends of one of the parties.  On January  5,  1949, the plaintiffs submitted an application requesting the Court to move the Government of Mysore to 85 constitute   a  special  Bench.   It  was  stated  in   that application  that  Mr. Balakrishanaiya would have  to  be  a witness in the compromise petition; Mr Kandaswami Pillai had delivered  a  judgment in a connected proceeding;  and  that other  Judges had ,,,dissociated themselves" from the  case. This application was rejected on January 10, 1949, by Acting Chief Justice.  Another application dated January 29,  1949, stating that the plaintiffs had approached the Government of Mysore  to  constitute an ad hoc special Bench to  hear  the appeals  and praying that the hearing may be  postponed  was

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rejected  on February 7, 1949, as ",not maintainable".   The appeals were then posted for hearing on February 14,  1949), but  at  the  request  of  the  executors  the  hearing  was adjourned,  the  ground  for  adjurnment  being  that  their counsel  was busy in a case posted on that date for  hearing in  a Court in Orissa.  Another application dated ’March  7, 1949  for adjournment to enable the Government  to  consider the application for constituting a special ad hoc, Bench wag also rejected by order of the Acting Chief Justice on  March 12,  1949.   On March 15, 1949 the Court consisting  of  Mr. Balakrishanaiya  and  Mr.  Kandaswami  Pillai  rejected  the application   for  recording  compromise  set  up   by   the plaintiffs.  The appeals were then taken up for hearing.  At that  time another application for adjournment was  made  by counsel  for the plaintiffs stating that the appeal  against the  order in the probate proceeding was pending before  the Judical  Committee  and the decision in that appeal  may  be awaited : this application was rejected on the ground that a similar application previously made had been dismissed.   It is the plaintiffs’ case that Mr. Balakrishanaiya during  the course  of the hearing made observations from time .to  time that   in  his  opinion  there  was  no  substance  in   the plaintiffs’  case.  Vishwanath in his affidavit dated  April 7, 1950, hat; stated what according to him transpired in the Court 86               "9.  Finding that any further argument  before               Mr.  Justice Balakrishanaiya  was  practically               unless,  my counsel Mr. N.  R.  Raghavachariar               left  for Madras and my counsel Sri L.S.  Raju               filed a memo seeking for permission to  retire               as  he  could  do no  useful  service  to  his               clients in further addressing the Court in the               circumstances mentioned."               "10.   Objection was taken to this  retirement               by  the  other’ side and my counsel  Sri  L.S.               Raju   who  bad  by  that  time   discontinued               addressing further arguments was asked whether               he  had  my consent to retire.   ’I  was  then               present  in Court and Sri L.S. Raju said  that               it is only at my instance, he was retiring."                "11.   At this stage, Justice  V.  Kandaswami               Pillai intervening stated that he was new to               the case and that he has not made up his mind               and requested my counsel Sri   L.S.  Raju   to               give the benefit of his arguments." Vishwanath  in  the  same affidavit  also  stated  that  Mr. Balakrishanaiya had been "openly hostile" to the plaintiffs. On this part of the case, by the order ,of Rajagopalan,  J., no  evidence  was  permitted  to  be  given.   The   record, therefore,   contains  merely  an  assertion  made  by   the plaintiffs and denial by the executors.  After the  judgment was  delivered by the Court on April 2, 1949, Judges  having differed  the case was referred to a larger Bench.  On  June 23, 1949, the Registrar of the High Court notified that  the appeals will be posted for hearing in the last week of July. It appears that on July 4, 1949, the plaintiffs submitted an application   for  adjournment  stating  that   Sir   Alladi Krishnaswami Ayyar, a leading member of the Madras Bar,  who had  argued the appeals at the earlier hearing and  who  was engaged to argue the appeals was unable to attend the Court 87 in the month of July, 1949, and requesting that  adjournment be  granted to enable him to appear and argue  the  appeals. This  application was rejected by the Registrar of the  High

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Court on some technical ground precise nature whereof it  is not   possible  to  ascertain  from  the  record.    Another application was submitted on July 18, 1949, accompanied by a letter  from Sir Alladi Krishnaswami Ayyar stating  that  he was  proceeding  to  Delhi to attend  the  meetings  of  the Constituent  Assembly (of which he was a member) and was  on that account unable to attend the hearing of the appeals  in July  1949 : it was also stated in the application that  the plaintiffs  "were engaging" Mr. Sarat Chandra Bose-a  member of the Calcutta Bar-to appear in the appeals, but he ",found September  convenient".   This application was  rejected  as "belated", and also because the parties had been  litigating ever since December 1942 and the objections of the executors Were "entitled to consideration." On July 25, 1949,  another application  supported’  by  an  affidavit  was  filed   for adjournment  of the case and that an ad hoc Bench  in  which the Chief Justice and Mr-.  Justice Balakrishanaiya were not included be constituted.  It appears that at the hearing  of this  application there were "angry scenes in Court  between the Acting Chief Justice and L. S. Raju".  In this affidavit dated April 7, 1950, Vishwanath has stated in paragraph  28, "......  the  Officiating Chief Justice Mr. P.  Medappa  was very wild with me and rude.  He threatened me and said  that I  should disclosed to him as to whom I consulted  regarding this  affidavit  and if I did not do so, I will be  sent  to fail.   I was in a fix an in a state of terror and,  when  I said that’ among other counsels’ I consulted Sri L. S.  Raju also,  Sri P. Medappa turned round and said, "I am glad  you mentioned  it, I know what to do for him." In  paragraph  29 Vishawanath  stated  :  "Later on, the  same  day  he  asked Messrs.  N. R. Raghavachariar and L. S. Raju 88 to   disclose  what  transpired  between  me  and  them   in connection  with  the  filing  of  the  affidavit  and  they declined to do so on the ground that. it would be breach  of professional  Confidence." Then in paragraph 30, he  stated. "In  disgust  and  as  he had  other  business,  Mr.  N.  R. Raghavachariar left for Madras the same day filing a memo of retirement.    Sri  L.  S.  Raju  also  filed  a   memo   of retirement."  The  order  rejecting  this  application   was pronounced  in  the  afternoon of July  25,  1949,  but  the hearing of the appeal was taken up in the afternoon of  July 25,  1949.  In the affidavit dated April 11, 1950  filed  in the  Madras  High  Court by the executors in  reply  to  the affidavit  dated April 7, 1920, there was no denial  of  the allegations relating to what transpired in Court on July 25, 1949.   The  evidence  of  Mr.  Balakrishanaiya-though   the replies given are somewhat vague-gives some support to  the. story of what is described as "a stormy session" on July 25, 1949.   Mr.  Balakrishanaiya  was asked  by  the  plaintiffs whether he remembered that on the first day, i e., July  25, 1949, it was a ’very stormy .session".  The answer given was that  he  did  "not understand".  To  the  question  whether "Medappa  threatened the respondent to tell him the name  of the advocate who drafted the affidavit", be answered  "There was  a question whether it was drafted by the party or  with the aid of Counsel".  The witness was then asked a composite question-,’Did  Medappa  threaten him to put him  in  Jail?. The   storm  means  the  storm  of  the  session-the   other colleagues were so distracted that they could not hear  what was  passing between Medappa and others?" No reply to  first part  of  the  question was apparently  given.   The  answer recorded  is,  "So  far  we were  concerned  we  were  never distracted."  It  is true that the witness denied  that  Mr. Medappa had told the first plaintiff Visbwanath that when it

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was  disclosed  that  Raju had  drafted  the  affidavit  Mr. Medappa stated he knew I ’what to do When 89 the  Court insisted on hearing the appeal on July 25,  1949, it appears, that Raju and N. R. Raghavachariar (who belonged to  the Madras Bar) applied for leave to withdraw.  On  that application  an  order refusing leave to. withdraw  was,  it appears, immediately recorded.  The order declaring  permis- sion  to retire from the case bears the date July 25,  1949, but  for  some reason not apparent from the record,  it  was pronounced  on July 27, 1949.  Arguments were heard  on  the 25th  of July, 26th of July and 27th of July, 1919, and  the Advocates of the plaintiffs were in the singular position of not  knowing whether they did or did not continue to  remain advocates  for the plaintiffs.  After the arguments  of  the executors, an application to enable the plaintiffs to secure the  presence of Sir Alladi Krishnaswami Ayyar was made  and was  rejected, and "judgment was reserved"  without  hearing any arguments on behalf of the plaintiffs.  Judgment of  the Court  which  runs  into thirty closely  printed  pages  was delivered on July 29, 1949, at 4 p.m. From  a  resume  of what transpired since  Mr.  Medappa  was appointed  the  Acting Chief Justice, it cannot  be  doubted that the Judges of the Mysore High Court were not willing to consider  any request of the plaintiffs for formation  of  a Bench   which   did  not  include  Mr.   Medappa   and   Mr. Balakrishanaiya.  Nor did they Consider his applications for adjournment  with sympathy.  The attitude may appear  to  be somewhat rigid, but that attitude by itself may not  justify an inference of bias. The plaintiffs were since the appointment of Mr. Medappa  as Acting  Chief Justice making application  after  application for  the  constitution of a Bench in which Mr.  Medappa  and other  Judges who bad been at some time concerned with  this case  be  excluded.   ’But a litigant  is  not  entitled  to choose’ 90 the  personnel  of the Court to hear his case,  nor  can  he insist  upon  an adjournment of the case  because  the  date fixed   for  hearing  is  not  convenient  to  his   counsel Convenience of counsel must subserve the larger interest  of the  administration of justice.  It is true that where by  a too  strict  observance of legal forms  injustice  has  been done, by an apparently biassed tribunal, the decision may be declared  ’coram non judice" whether the decision is of  the tribunal  subordinate to the appellate jurisdiction  of  the court  or  of a foreign tribunal. But only facts  proved  in this  case  in  support of the plea of  bias  are  that  Mr. Medappa was a close friend of the executor Syed Abdul Wajid, and Mr. Balakrishanaiya bad expressed his view on the merits of the plaintiffs case.  It would have been consistent  with the  dignity  of  the Court if Mr.  Medappa  and  Mr.  Bala- krishanaiya bad not sat in the Full Bench.  But it cannot be forgotten  that  unless the Government of Mysore  agreed  to constitute  an  ad hoc Bench, there were no  Judges  in  the Court who could form a Full Bench to hear the appeals.   Mr. Puttraj Urs bad recorded evidence in the suits out of  which the appeals arose: Mr. Malappa was also concerned with  some proceedings   connected   with  the   litigation   and   Mr. enkataramaiya  the only remaining Judge bad appeared  as  an Advocate  for the plaintiffs.  Mr. K. Kandaswami Pillai  bad retired.  We may certainly not approve if we are called upon to  do  so-of  the  incidents in Court  at  and  before  the hearing.  But these incidents may very well be the result of deliberate  provocation  given by the plaintiffs  and  their

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lawyer  Raju,  who appears to have attempted  frequently  to thwart the effective hearing of the appeals. The  High Court has carefully weighed the circumstances  and has held that from the various pieces of conduct  attributed to Mr. Medappa and Mr. Balakrishanaiya, an inference of bias may not 91 be  made.   We are dealing with the judgment  of  a  foreign tribunal:  however much we may regret the  pronouncement  of certain  orders,  especially  orders declining  to  grant  a reasonable adjournment to enable the plaintiffs’ counsel  to appear and argue the case, the constitution of the Bench and the manner in which the appeals were heard, it is  difficult for us to disagree with the High Court and to attribute bias to the Judges, who constituted the Full Bench. The plea of bias, of a foreign Court is indeed difficult  to make  out.  The court will always presume, in  dealing  with the judgment of a foreign Court that the procedure  followed by that Court was fair and proper, that it was not  biassed, that  the Court consisted of Judges who acted honestly,  and however wrong the decision of the Court on facts or law  may appear to be, an inference of bias, dishonesty or unfairness will  not normally be made from the conclusion  recorded  by the  Court on the merits.  The party setting up a case  that the  judgment of a foreign court is not conclusive,  because its  proceeding  was  contrary  to  natural  justice,   must discharge  this  burden by cogent evidence, and  we  do  not think  that  in this case such evidence has been  led.   The Judges  had no pecuniary interest in the dispute.   Bias  in favour of the executors is sought to be inferred from  close friendship of the Chief Justice with one of the  defendants, and  the  expression of opinion by the other  Judge  on  the merits-such expression of opinion being consistent with  the practice  prevailing  in  the  Court-and  refusal  to  grant facility  to the plaintiffs to secure the presence of  their chosen  counsel.   These  grounds  either  individually   or collectively do not justify us in inferring contrary to  the view  of the High Court that the Judges had forfeited  their independence  and impartiality and had acted not  judicially but with bais. 92 The  last question which falls to be determined  is  whether the estate devised under ’the will dated September 10, 1942, was the joint family estate of Ramalingam and his sons.   If the  estate  belonged  to the  joint-family,  the  will  was undoubtedly inoperative.  Certain facts which have a bearing on this question and which are mainly undisputed may be  set out.  Vydialingam was an employee in the Mysore  Subordinate Judicial  service and drew a monthly salary rising from  Rs. 75/- to Rs. 125/-.  He worked fir,.it as a translator in the Mysore Chief Court.  In 1898 he was appointed Sheristedar of the  District Court at Shimoga and was later transferred  to Bangalore.  One Loganathan Mudaliar, a building  contractor carrying  on  business  at Kolar Gold Fields,  was  a  close friend  of  Vydialingam.  In 1896, Loganathan fell  ill  and after  his  illness  took a serious turn in,  1898,  he  was unable  to attend his business.  Loganathan executed a  will appointing  Vydialingam  and  others  as  guardians  of  his children  and  also executors under his will,  and  died  in 1900.   Vydialingam  was  maintaining an  account  with  the Cavalry Road Bank at Kolar Gold Fields since 1891.  By  1895 substantial  amounts were credited in that account of  which the  source could not be the meagre salary  of  Vydialingam. In  the years 1896 and 1897, diverse amounts aggregating  to the more than rupees one lakh were credited in that account.

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In  May 1898 Vydialingam borrowed on his  personal  security from  the  Bank Rs. 2,000/- and gave it  to  Shanmugam,  his eldest  son.  Shanmugam opened an account with  the  Cavalry Road  Bank in October, 1899, by borrowing Rs. 25/-, but  the entries in this account are few and for very small  amounts. From the account maintained by the Mining Company it appears that  the  building construction work which  was  originally done by Loganathan. was later done by Shanmugani and since 1901 large amounts were paid to Shanmugam some of which were credited into the Cavalry Road Bank 93 account.  Since July 1904, some books of account  maintained in the name of Shanmugam for business, household and,  other expenses  are available.  About ;the year 1904, Devraj,  the second son of Vydieolingam, started attending to a  building contractor’s   business   at   Gadag.    Ramalingam    after ,.completing, his training in the Victoria Jubilee Technical Institute at Bombay also took to that business.  Vydialingam died in May 1905.  He was then possessed of two houses which were orally directed by him to be given to Ramalingam.   The three  brothers  continued to live jointly  even  after  the death  of  Vydialingam and  the  household  expenses  were jointly  incurred.  In 1910 Ramalingam sold one of  the  two houses and received Rs. 4,000/-.  ’On March 30, 1912, a deed of release was executed by Ramalingam and Devraj under which Devraj  and  Ramalingam each .received Rs. 2,5001-  and  the Kolar  Gold  Fields  business  was  thereafter  carried   on apparently  as a partnership business between Shanmugam  and Ramalingam.  Manavalem father-in-law of Devraj died in 1910, and  Devra migrated to Madras and settled down, in that  tow to attend to the business of his father-in-law Shortly after April  1912,  Shanmugam proceeded ,to  the  United  Kingdom. There  is  no clear evidence ’Whether he took part  in;  the business  after  he returned from his  journey  abroad.   He continued  to  make  withdrawals from  his  account  in  the business  By 1961, he had overdrawn an amount exceeding  Rs. 35,000/-  which  was written off.  Thereafter he  ceased  to have any interest in the business Shanmugam died in 1924 and Devraj died in 1936. It is the plaintiffs’ ease that, Vydialingam was carrying on the  business of a building contractor since about the  year 1895  or  1896:  into  this  business  Shanmugam  was  first introduced and thereafter Devraj and Ramalingam.  After  the death  Vydialingam, according to the plaintiffs, this  busi- ness was carried on by the three brothers till the 94 year  1910 at different places.  Devraj was attending  to  a Iran oh of the business at Gadag: Ramalingam attended to the business  at  Kolar Gold Field,,; and also  at  Gadag.   The plaintiffs  claim that the business which was carried on  by Ramalingam since the year 1916, was directly connected  with the  business  which was inherited from Vydialingam  by  his sons  and  being  in  his  hands  ancestral  business,   the acquisitions.  out  of  the same  were  impressed  with  the character of joint-family property.  They also claimed  that Ramalingam  disposed  of  two  ancestral  houses  which   he received  and  used  the sale proceeds  in  conducting,  his business   and   also   Rs.  12,500/   received   from   the Administrator-General  as  the Share, out of the  estate  of Loganathan,  of  his wife Gajambal who was the  daughter  of Loganatban.   With  this  fund  Ramalingam  carried  on  the business of a building contractor in the conduct of which he was  assisted  by  his sons and he acquired  the  estate  in dispute.   The  case of the plaintiffs  therefore  was  that Vydialingam  was  carrying on the business,  of  a  building

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contractor,  that his sons assisted him in carrying  on  the business,  that after his death the business which  devolved upon his sons was carried on by them till 1910 when  Devraj, the  second  son  ceased to be.  interested  therein.   Then Shanmugam,  the oldest, son severed his connection  in  1916 leaving Ramalingam to conduct the ancestral business alone. The  executors contended that Vydialingam did not  carry  on business  of a building contractor, that  Shanmugam  started his  own business as a building contractor sometime in  1898 and  neither his father nor his brothers had  any.  interest therein,  and that for the first time, in 1912, in  view  of his  impending departure for the United  Kingdom,  Shanmugam admitted  Ramalingam  into  his business as  a  partner  and ultimately in 1916, Ramalingam became the sole owner of  the business, because 95 Shanmugam  severed  his interest therein.  The case  of  the executors,  therefore was that the business in the hands  of Ramalingam had no conviction with any ancestral business  or estate received by Ramalingam from his father.               The trial Judge dealt with the question  under               five heads:--               Firstly,  that  Vydialingam  carried  on   the               business  of  a building contractor.   He  had               left. two houses which were unencumbered,  and               the contractor’s business: these became joint-               family estate in the hands of his son, and out               of this estate Ramalingam’s fortune was built:               Secondly, that after the death of Rawalingain,               his  three  sons  carried on  a  joint  family               business.   This  joint-family  business   was               attended to by the three brothers at different               places  and that the joint  acquisitions  were               divided  sometime  in the year 1910  and  each               brother received a share of Rs. 34,000/-  odd,               and  out of the share received by  Ramalingam,               estate devised by the will was acquired               Thirdly,  that Ramalingam received a share  of               the  ancestral  estate  of the  value  of  Rs.               40,000/-  and also Rs. 12,500 as share of  his               wife  out of the estate of Loganathan and  the               entire amount was invested in his business  as               a  building  contractor and out  of  this  the               estate in dispute was acquired :               Fourthly,  that Ramalingam and his eldest  son               Vishwanath   were   actively   associated   in               carrying on the building contractor’s business               and the acquisitions out of               96               the business were joint-family estate: and               Fifthly,  that  Ramalingam had  by  his  decl-               arations  impressed his acquisitions with  the               character   of   joint-family   property   and               therefore   the   property   was   jointfamily               property. He  held  on all the five heads that  the  property  devised under  the will of Ramalingam was jointfamily  property.  in appeal, the High Court held that the case of the  plaintiffs under the 4th and the 5th heads was not established.   About the  3rd  head the High Court held that there was  no  clear evidence  that Ramalingam had received an ancestral  fortune of  Rs.  40,000/-  or Rs. 12,500/- on  behalf  of  his  wife Gajambal from the estate of Loganathan.  But the High  Court held  that  Vydialingam was carrying on the  business  of  a building  contractor  since the year 1896 and that  in  this

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business were associated his sons as they grew up; that  the business  was  carried on in the name of  Shaumugam  because Vydialingam being a public servant could not carry it on  in his  own  name;  that after the death  of  Vydialingam  this business  was conducted as a joint-family business; that  in the year 1910, Devraj who was attending to the Gadag  Branch of  the business left the family and commenced attending  at Madras  to the business of his father in-law who died  about that time; and that Shanmugam ceased to have any  connection with  the. business in 1916.  The High Court summarised  the conclusion as follows:--               "The  business which  Ramalingam  subsequently               extended was a business which-descended to him               from  his  father,  his  two  brothers  having               successively  left it.  It is probable  though               is, not clearly proved-that Ramalingam put the               money which is obtained by sale               97               of  the house in Bangalore into business.   He               also  put in the money he was paid  under  the               release  deed  of  1912.   Into  the   nominal               partnership   which  he  entered   into   with               Shanmugam, he brought in as his capital a  sum               of  Rs. 5,000/representing a fragment  of  the               old  business.   No less  important,  he  also               brought in the goodwill of the old  business.               At  no  time  before  the  final  few   months               preceding  his death, when he  had  quarrelled               with   the   members  of   his   family,   did               Ramalingam, notwithstanding the claims he made               in  his  will, and other  documents,  seek  to               exclude  the  members of family.  He  made  no               effort  to  keep distinct what  were  acquired               with  the  aid  of  indubitably   joint-family               nucleus from what it might have been  possible               to   contend  were  the  result  of  his   own               unassisted   exertions.    Taking   all    the               circumstances  into  account, we  are  of  the               opinion that the learned trial Judge was right               in  concluding that the properties which  Ram-               alingam left behind must be treated as  joint-               family properties." To  establish  their  case the plaintiffs  relied  upon  the evidence  of five witnesses-Kuppuswamy  Mudaliar,  Sitharain Naidu,   Varadaraja   Mudaliar,  Venugopala   Mudaliar   and Dharmalingam,  some  of whom had been  examined  before  the Court  of the District Judge, Bangalore.  By their  evidence it was sought to prove that Vydialingarn did carry on in and before 1898 business as a building contractor at Kolar  Gold Fields and that this business had on his death descended, to his sons.  The plaintiffs also relied upon extracts from the accounts  of Ramalingam and Shanmugam with the Cavalry  Road Bank at Nandidurg, and the extracts from the accounts of the Nandidurg_ Mining Company recording payments made from  time to  time  to Shanmugam some of which were  credited  in  the account of Vydialingam 98 with  the Cavalry Road Bank.  Reliance was also placed  upon the  entries in the books of account maintained in the  name of Shanmugam from the year 1904 showing receipts from Davraj at  Gadag  and amounts debited as sent to Devraj  at  Gadag, collection of rent from the houses credited in that account, expenses  debited  for  purposes  connected  with   building construction’  items showing that Devraj or Vydialingam  had participated  in  those transactions and  other  entries  of

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house-hold  expenses showing that the account maintained  in the name of Shanmugam was in truth the account of the joint- family.   ’rho plaintiffs also relied upon  certain  letters written  by  Ramalingam and Devraj which  from  their  terms evidenced  their case’ that they were not acting  merely  as agents of Shanmugam but as owners of the business.  Reliance was also placed upon the testimony of one Masilamay  Pillai, an  Advocate (who later acted as a Judge of the Madras  High Court),  that in the arrangements made a few  months  before March 30, 1912, it was agreed that the goodwill of the Kolar Gold  Fields  business  was  allotted  to  Ramalingam.   The learned trial Judge accepted the evidence of all the witness whose  testimony was relied upon by the plaintiffs and  held that the extracts Vydialingam’s account established that  he was  carrying on business as a building contractor, and  the books  of account maintained in the name of  Shanmugam  were family accounts. In  appeal, the High Court relied upon the evidence of  only two  of the five witnesses who deposed that Vydialingam  was working  as a building contractor.  In the view of the  High Court the evidence of Varadaraja Mudaliar and Sitharam Naidu but  not of other witnesses was reliable.  Witness  Sitharam Naidu  deposed that he was working as a building  contractor since the year 1898 at 99 Kolar Gold Fields, that he had taken up a ",tenement in  the compound  of  Loganatha  Mudaliar" and  that  he  knew  that Vydialingam was looking after the contract work of Loganath, that  Vydialingam  was  assisted by  his  three  sons,  that Shamingam  was doing business of a building  contractor  and was  also helping his father Vydialingam.  The  witness  was described  by the High Court as a respectable  person  "’not readily  corruptible" and who "had no  ascertainable  motive for  giving  false evidence".  Varadaraja  Mudaliar  deposed that  he  used  to  see Vydialinga  Mudaliar  when  he  (the witness)  went to Oorgaum in 1898 to see  his  father-in-law who was a Mistry in the Oorgaum mines working under Loganath Mudaliar,  that  his  father-in-law at  first  worked  under Loganath and later under Vydialingam.  The evidence of  this witness  was also accepted by High Court.  The  evidence  of these  two witnesses establishes that  Vydialingam  Mudaliar was conducting the business of a building contractor.  There is  also evidence that since the year 1898 Loganath was  too ill  to attended to his business and that he died  in  1900. The testimony of the two witnesses Sitharam and Varadaraj is supported  by entries in the account of Vydialing  ,am  with the Cavalry Road Bank.  The account of Vydialingam with  the Cavalry  Road Bank was opened in 1891.  Vydialingam  was  an Employee of the State of Mysore and the maximum salary  that he  ever drew was Rs. 125/- p.m. Between the years 1891  and 1894 the entries in the bank account were for small amounts, the largest being Rs. 478/4/-.  In the year 1895, there were two  items  each  exceeding Rs.  1,000/-  credited  in  that account,  but in 1896, the items of credit and  disbursement were  very  large  : it appears from  the  entries  in  that account that in the years 1896-1897, amounts aggregating  to Rs.   One  lakh  and more were credited in  the  account  of Vydialingam and large disbursements were also made from that account.  The High Court observed, and in our judgment the 100 High  Court was right in its view that the  transactions  in the books were "to large to be referred to the emoluments of Vydialingam as Sheristedar.  It is legitimate inference that he  has been engaged in other business.  The  executors  did not, deny that an inference that Vydialingam was carrying on

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some business clearly arose from the entries in the books of account.   But  it was suggested that Vydialingam  may  have carried  on  the  business of a money-lender  and  for  that purpose  he may have withdrawn funds from the  Cavalry  Road Bank  and utilized them as his circulating capital  for  his money-lending   transactions.    It   was   asserted    that Vydialingam was a Director of the Cavalry Road Bank and  was on the account able to help himself to the funds of the Bank for  his private business.  But our attention has  not  been invited to any evidence on the record that Vydialingam was a director of the Cavalry Road Bank.  The entries are of  such large  amounts  and  the credit and  debit  entries  are  so frequent that the inference that were made in the course  of a  money-lending  business would be difficult to  make.   It also  appears  that Vydialingam had mortgaged his  house  in 1892 for Rs. 25,000/- in favour of Thirunaglingam Pillai and he  discharged  this  mortgage by borrowing a  loan  of  Rs. 3,000/-  on  the security of the house  from  Loganathan  on August  31,  1892.   The amount  was  repayable  in  monthly instalments of Rs. 50/-.  Another deed encumbering his house was  executed  by Vydialingam in 1894 for repayment  of  Rs. 2,000/These  two mortgages remained outstanding  till  1903. We  are  unable  to accept the  theory  that  Vydia.  lingam carried  on  money-lending business when his own  house  was mortgaged, and he had agreed to pay the dues by instalments. The Cavalry Road Bank account also shows entries for amounts brought  from the Madras Bank.  These show that  Vydialingam had  received  cheques which were encashed with  the  Madras Bank  and the amounts were received by him.   These  entries render the theor of a money-lendin business improbable. 101 The  entries in the bank account of Vydialingam support  the case  that he was carrying on a business, and the  testimony of  two  witnesses Sitbaram Naidu  and  Varadaraja  Mudaliar clearly   shows  that  this  business  was  of  a   building contractor. Before  1898, even according to the case of  the  executors, Shanmugam   was   not  employing  himself  as   a   building contractor.   The  entries in his account with  the  Cavalry Road Bank are for very small amounts till April 1901,  when, for  the  first time, Shanmugam borrowed Rs.  800/-  on  the security  of jewels.  In the account of the  Mining  Company also,  there  are  no  entries  for  any  payments  made  to Shanmugam  till 1901 for work done by him.  The  entries  in the   Cavalry  Road  Bank  account  therefore  support   the inference  that  Vydialingam was carrying  on  business  and Shanmugam had no business of his own atleast till 1900. The entries in the Cavalry Road Bank account for the  period subsequent  to 1900 also suggest that  Vydialingam  operated the account of Shanmugam.  Part of the amounts received from the  Mining Company account by Shanmugam for the  work  done was  applied for satisfying loans borrowed  by  Vydialingam. It  has  also to be noted that in Shanmugam’s  account  till 1901  no large amounts were credited.  It appears  from  the account  of the Mining Company that on January 18, 1901,  he received Rs. 5,000/by cheque and other large amounts  within the  next three months aggregating to nearly Rs. 7,500/-  in cash  and  cheques.  But the account of Shanmugam  with  the Cavalry  Road  Bank shows only a total credit of  Rs.  780/- between October 1899 and April 1901 in the suspense account. No books of account about the construction work done in  the name of Shanmugam are available for the period. There are certain entries in the accounts of Vydialingam and Shanmugam which show interrelation between the two accounts. For instance,

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102 on  January  9,  1904,.according  to  the  Mining  Company’s account  Shanmugam  was  paid three amounts  Rs.  36/-,  Rs, 362/14/1 and Rs. 12,243/5/-.  About this time Shanmugam  was indebted to the Cavalry Road Bank in the sum of Rs.  3,400/- on  promissory  notes.   On January 19, 1904,  he  paid  Rs. 3,100/into the Bank and partially satisfied this  liability. Rs.  12,120/6/9  are  found  credited  in  the  account   of Vydialingam on January 23, 1904 and Rs. 12,000/are withdrawn on  January 29.  There is no direct evidence to connect  the payments  made in the accounts of Shanmugam and  Vydialingam with  the amounts received by Shanmugam, but it would  be  a reasonable  inference,  having regard to  the  proximity  of time,  that it was out of the Amount of Rs.  15,900/received by Shanmugam on January 19, 1904, that his liability for Rs. 3,100/-  to  the  Cavalry Road Bank was  discharged  and  an amount  of  Rs. 12,120/ 619 was paid into the  Cavalry  Road Bank and an amount of Rs. 305/- was utilized for  satisfying the debts of Vydialingam in his personal account.  There are also  other  entries disclosing  interrelation  between  the accounts.   Vydialingam borrowed Rs. 140/- on February  1.8, 1904, under promissory note dated February 18, 1904, and the identical  amount  is credited in the account  of  Shanmugam under  the entry "Receipt from V. S.  Vydialinga  Mudaliar." The  Chitta  number  under which amounts  are  credited  and debited  are  identical.   On December  1,  1904,  Shanmugam received a cheque for Rs. 10,000/- from the Mining  Company. The  cheque was credited in the Cavalry Road Bank on  10-12- 1904.  On that day Shanmugam was indebted in the sum of  Rs. 2 625/- in the promissory note account.  On December 19,  he withdrew a total amount of Rs. 8,733/2/0.  The Chitta  entry in  that behalf is No. 113.  On that very day there are  two entries  under Chitta No. 113 for payment of Rs. 1,050/-  in Vydialingam’s  account.   There are entries  in  Shanmugam’s account with the Bank 103 showing   debts  made  pursuant  to  directions’  given   by Vydialingam.  For instance, on March 25, 1903, Rs. 500/- are debited pursuant to directions given by Vydialingam.   There are  two similar debit entries pursuant to directions  given by Vydialingam on April 4, 1903, and April 10, 1903, for Rs. 500/- each. In Vydialingam’s account on July 13, 1903 there is an  entry of Rs. 280/- paid for cart hire.  That is also indicative of the fact that he was carrying on the business of a  building contractor,   otherwise  this  entry  is  not   capable   of explanation.    There  are  also  entries  in  the   account maintained  in  the  name  of  Shanmugam  showing   expenses incurred  by  Vydialingam  and  Devraj  for  travelling   in connection  with the building of the  English  Church".   On August   7,  1904,  Rs.  20/-  were  debited  as  spent   by Vydialingam  for  going to Madras.  There is  also  a  debit entry  of  Rs.  3/-  dated July  26,  1904,  for  travelling expenses of Devrai and Shanmugam.  The account maintained in the name of Shanmugam for the period prior to July, 1901, is not  produced.  The account is available till 1907 and  then there  is a break.  There is an account book for  1910-1  1, but  not  for the period immediately before April  1,  1912, when a partnership was started between Ramalingam and  Shan- mugam.   There are numerous entries in this account  showing that large amounts were received from Gadag from Devraj and, also for amounts sent to him.  On May 5, 1905, an amount  of Rs.  1,000/-  was raised on a promissory note  and  sent  to Devraj.  On July 19, 1905, there was a remittance to  Devraj by  Shaamugam  of  Rs.  1,00 1/ 8/2.   There  is  a  similar

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remittance  on September 17, 1905.  On September  26,  1905, Rs.   100/-  had been paid through  Ramalingam.   There  are credit  entries for large amounts received from Devraj.   On May 27, 1907, Devraj remitted Rs. 7,000/- 104 from  Gadag  to  Kolar Gold Fields.  It  is  unnecessary  to examine all these entries.  Also in the account in the  name of Shanmugam there are several credit entries for house rent collected  from tenants of the two houses which  Vydialingam died  possessed  of,  and  debit  entries  for  payment   of municipal  taxes.  There are also in that  account  numerous entries  for amounts collected by Ramalingam and  paid  into the account. There  are also four letters which throw some light  on  the connection of the three brothers with the Kolar Gold  Fields business.  On October 5, 1909, Devraj addressed a letter  to Ramalingam enquiring whether the letter did go to Gadag  and gave  several  directions with regard to  business  matters. There is another letter dated October 6, 1909, also  written by  Devraj to Ramalingam which states "Pariapa"  (Shanmugam) has  come from Bangalore and he expects you here as soon  as you  finish  your  work  there."  This  letter  also   gives directions  for  procuring  certain articles.   There  is  a letter  dated January 18, 1911, addressed by  Ramalingam  to Shanmugam.  By the letter Ramalingam informs Shanmugam  that the  question of (departmental employment in  the  Nandidurg Mining  Company  was discussed and that  it ,,was  finally decided  not to do so" and to have the sundry works  carried on  as  usual.  He then proceeds to state that  the  Oorgaum Gold  Mining Company had temporarily stopped all  operations for "some unknown reasons". then there is a reference to the Electricity  Department of putting in and concrete  in  "N’s Bungalow".  There is also reference to "drudging on with the drains  and  the  compressor  work  we  have  been  having." Regarding  the  Oorgaum  Gold Mines, he says  that  all  the "works  on  hand" in the mines had been  completed  and  the prospects  for  new  work  were gloomy.   There  is  also  a reference 105 to the timber department.  In the next letter dated February 11, 1911, addressed to Shanmugam, Ramalingam states that Mr. Bullen  had sent for him and had enquired of him whether  he would  undertake some small building contract  at  Manigatha where  they  were prospecting for gold and further  that  he (Ramalingam)  had agreed "to do the work and promised to  be there to receive instructions." He also stated that he would return by the week-end after the arrangements were made  and he  would take leave of Messrs.  Moky &Cooke and  tell  them that  Mr.  Ramaiah will lookafter the business  (during  his absence).  The letters do suggest that Ramalingam and Devraj were  interested  as  owners in  the  business  about  which information was given to Shanmugam and they were not  merely acting as his agents. There  are  numerous  entries in the  General  Account  also indicting  that  these accounts are not in  respect  of  the personal transactions of Shanmugam but they are the accounts of  the family.  Expenses of various members are debited  in that  account.   They are found side by side  with  business expenses.   The  High Court was, in our judgment,  right  in holding  that  these  were not  the  accounts  of  Shanmugam personally but were of the joint family. The    Attorney-General,   however,   says   that    certain circumstances  relied  upon by ’him  conclusively  establish that  the  business  done  by  Shanmugam  was  his  separate business.   He  points  out that Vydialingam  was  a  public

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servant  and his service record showed that he was on  leave only  for  short periods in the year 1898 and  when  he  was posted at a considerable distance from Kolar Gold Fields, it would be impossible for him to attend at the latter place to any business requiring his continued attendance.  But only a few  extracts  from the service record of  Vydialingam  have been 106 printed in the record.  Ext. 368 shows that Vydialingam drew a  salary of Rs. 125/- for 20 days for Working no Nazir  and Sheriatedar,  and  that he was transferred to  the  District Court of Shimoga in September, 1901.  There is also an entry that  Vydialingam was appointed Munsif for 12 days in  June, 1900.  Ext. 370 shows the amount of salary that  Vydialingam drew from time to time.  These documents do not show that it was  impossible for Vydialingam to attend to  the  business. It  is  true that in the Mining Company’s  account  payments made  for  construction  work  are  debited  till  1900   to Loganathan‘ and after Loganathan’s death to Shanmugam,  but, evidently,  Vydialingam  being a public  servant  could  not publicly  appear  as  carrying on  a  building  contractor’s business  and receive paymenta for- the work done by him  in his own name.  The debit entries in the name of Shanmugam in the Mining Company’s account are therefore not decisive, nor would  they be sufficient to destroy the direct evidence  of the two witnesses Sitharam Naidu and Varadaraja Mudaliar. It  was then urged that Cavalry Road Bank Account  showed  a payment  of Rs. 2,000/- in May, 1898, to Shanmugam and  that this  account was’ returned to Vydialingam %by Shanmugam  in December 1902.  From this it is urged that Shanmugam started business  as a building contractor with the amount  borrowed from  his  father Vydialingam and ultimately  he  repaid  it after four years and seven months.  But the evidence of  the two  witnesses Sitharam Naidu and Varadaraja  Mudaliar  does establish  that  the  business of  building  contractor  was conducted  by Vydialingam and that is amply corroborated  by the  entries  in the Cavalry Road Bank account.   The  debit entry  relating to payment of Rs. 2,000/- to Shanmugam  from Vydialingam’s account, and the credit entry for repayment by Shanmugam will not, in our                      107 judgment, necessarily lead to the inference that this amount was  borrowed  by Shanmugam for starting his business  as  a building  contractor.   It was also urged that  the  account started  in July 1901 and continued till the year  1912  was the  private  account of Shanmugam.  We have  already  dealt with  this  question  in dealing with the  evidence  of  the plaintiffs  and we are unable to hold, having regard to  the numerous  entries  posted therein that the account  was  the personal account of Shanmugam. It is also true that Vydialingam was indebted to  Loganathan for  amounts  borrowed  by him on the security  of  his  two houses  and that the debts were paid off in the  year  1903. Bat   having  regard  especially  to  the  direct   evidence supported  by contemporaneous entries in the account  books, an inference that Vydialingam did not carry on any  business will not be justified. Strong  reliance  was  placed on  certain  recitals  in  two documents a sale deed executed by Ramalingam for sale of the house  inherited by him from Vdialingam by deed  dated  July 27, 1910, and a deed of release executed on March 30,  1912, by  the  three brothers.  It is urged that the  recitals  in these  two documents completely destory the case that  after the death of Vydialingam there was a subsisting joint family or  that Ramalingam and Davraj had interest in the  business

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carried  on by Shaumugam.  In the sale deed dated  July  2O, 1910,  executed  by Ramalingam in favour of  Mandi  Mohammad Hussain Saheb it was recited- that Shanmugam and Devraj  had acquired  properties out of their own earnings and  were  in enjoyment thereof, but he (Ramalinga) had no property of his own  earning  and  therefore  Vydialingam  had  given   oral directions   that  the  immovable  property   belonging   to Vydialingam  should  be in the possession  or  enjoyment  of Ramalingam alone and that 108 Shanmugam  and Devraj should have no right therein and  that in accordance with the directions and with the permission of his   two  brothers.   Ramalingam  was  in  possession   and enjoyment thereof and that he conveyed one of the houses for Rs.  4000/-  to the vendee and in order to  prove  that  his aforesaid brothers had no right in the property, he had  got them  to  attest  the documents.  The sale  deed  bears  the attestations  of  Shanmugam and Devraj.   There  is  another document  dated  March 30, 1912, which is  calleda  "Release Deed",  between  Shanmugam on the one hand  and  Devraj  and Ramalingam  Mudaliar  on the other, The three  brothers  are described as doing business as building contractors.  It  is recited in that deed that in 1898 Shanmugam started life  as a building contractor and merchant by his own exertions  and without the use or aid of funds of the joint family to which he belonged and found his own ’means of living" on the Kolar Gold  Fields and elsewhere and by his own exertions  he  had made  acquisitions described in the schedule annexed to  the deed and that the same were his separate property.  The deed also  recited  that  before  his  death  on  May  3,   1905, Vydialingam  had  given directions for the disposal  of  the immovable and movable properties in favour of Ramalingam and accordingly the said properties had been appropriated  first towards  the  discharge  of his. debts  and  thereafter  the immovable  properties had been taken over by Ramalingam  and that  "nothing  in the nature of an undivided  Hindu  joint- family  remained".   The document then proceeded  to  recite that  in  consideration  of  a sum  of  Rs.2,500/-  paid  by Shanmugam  to Devraj and another sum of Rs. 2,500/- paid  to Ramalingam  and  his  minor  son  Vishwanath,  Devaraj   and Ramalingam declared that they will not claim any "manner  of right  or  title or interest in the property  of  Shanmugam" described  in the schedule attached to the deed  and  agreed that they or any of them had never any 109 right,  title or interest in the property and that if  there was  any  such  right  it "shall  be  deemed  to  have  been released,  relinquished and quit claimed so  that  Shanmugam Mudaliar remain the sole and absolute owner thereof." In the schedule   to   the  deed  was  described  a   bungalow   at Robertsonpet  and movables and outstanding of the  value  of Rs. 1,79,000/-. At the foot of the document were endorsed  a receipt  for Rs. 2,500/- by Devraj and another  receipt  for Rs.  2,500/- by Ramalingam.  The Attorney-General  contented that the admissions in these documents .were unequivocal and destroyed  the  case of the plaintiffs, that there  was  any subsisting  jointfamily  after the death of  Vydialingam  or that  the business carried on by Shanmugam was  joint-family business.   Counsel  submitted  that  the  trial  Judge  had evolved a theory which was not supported by any pleading  or evidence that the sale deed and the release deed were  parts of a scheme of division of the property of the joint  family of the three brothers. It is true that the recitals in the sale deed show that  the house  sold  by Ramalingam was given by Vydialingam  to  him

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under an oral direction and he dealt with that house on that footing.  It is also true that in the ,Release Deed" it has been  recited that Shanmugam was carrying on business  as  a contractor since the year 1898 without the aid of any joint- family funds and that the acquisitions made by him were  his self-acquired properties.  The deed also recites that  there was  no joint-family property which remained to be  divided. But  these two documents cannot be regarded as  decisive  of the  question  whether  Vydialingam  was  carrying  on   the business of a building contractor and whether that  business devolved  on his three sons.  The three brothers during  the life  time  of  Vydialingam  were  living  jointly  and  the building  contractor’s business was being  conducted  during the  life time of Vydialinga.  We have already  pointed  out that 110 the  evidence  shows that even before 1898  Vydialingam  was carrying  on  a  contractor’s  business.   Both  during  the lifetime  of Vydialingam and thereafter till 1910 the  three brothers  lived  together  and the entries  in  the  General accounts  maintained in the name of Shanmugam indicate  that their  expenses were jointly met.  It also appears that  the rent  received from the houses which  Ramalingam  ultimately disposed of were taken into account and amalgamated with the family account.  Large amounts were sent to Devraj and  were also  received from him.  Ramalingam is also shown  to  have participated in the business of Shanmugam.  It is true  that the trial Judge made out a case of a partition of the joint- family  estate in the year 1910 which after Devraj  migrated to Madras, was given effect to in the deed of release  dated March 30, 1912.  This case does not find place in any plead- ing  and  is  not supported by  direct  evidence.   But  the approach  of the High Court to the evidence  was  different. In  the view of the High Court the evidence  indicated  that the three brothers continued to carry on business as members of  a  Hindu jointfamily which had devolved upon  them  from their  father Vydialingam that the business was extended  to different  places  such as Gadag, Calicut and  others,  that Shanmugam  was after the death of Vydialingam also  carrying on an independent business at Kalai in partnership with  one Balakrishna  and that the deed of release was in respect  of the property which was claimed by Sbanmugam as his  separate property  and  not in respect of the  jointfamily  property. Evidently,  the recitals in the release deed were  made  for maintaining  a  record  that Devraj  and  Ramalinga  had  no interest  in  the property of Shanmugam.   Admissibility  of evidence.  to contradict the recital that there was in  fact no property of the joint-family is not precluded by s. 92 of the  Indian Evidence Act, as the dispute in this  suit  does not  arise between the parties to the documents but  between persons who 111 claimed under Ramalingam the executant of the document. The evidence of Masilamany Pillai who was examined on behalf of  the plaintiffs in the District Court at Bangalore is  in this  context of some importance.  The witness deposed  that in  1.912 he was consulted in connection with settlement  of certain  matters  between  Shaumugam Mudaliar  and  his  two brothers,  that  he had discussions with shanmugam  and  his lawyers regarding matters relating to the properties of  the family  and  also in respect of the business in  Kolar  Gold Fields and that he had given advice after ascertaining  from the  three  brothers several matters in respect of  which  a settlement  had to be effected.  He then stated that he  had suggested  that  the  release deed might  be  obtained  from

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Devraj and Ramalingam releasing and relinquishing the claims if any they might have in respect of any property which were claimed  by Shanmugam as his self acquisitions, but  he  had himself  not drawn up the deed nor had seen it at any  time. The  witness then made a statement that at the interview  it "was  understood that good-, will of the Kolar  Gold  Fields contract  business was to be given to Ramalingam  Mudaliar." On this part of his evidence there was no cross-examination. This  evidence  is important in two respects  (i)  that  the release  deed  was to be drawn up in respect  of  properties which were claimed by Shanmugam to be his self acquisitions, and  (ii) that it was understood that the goodwill of  Kolar Gold Fields business was to be of Ramalingam.  If the  Kolar Gold   Fields  business  was  the  exclusive   business   of Shanmugam,  which  he  had  started,  it  is  difficult   to appreciate why the goodwill of that business should be given to  Ramalingam  when  for  a  comparatively  small   amounts Ramalingam and Devraj were relinquishing all their  interest which  they may possibly have in that business, and  in  the earnings made by 112 Shanmugam out of that business.  The trial Court as well  as the High Court have accepted this evidence. The  accounts  of  the  family maintained  in  the  name  of Shanmugam  immediately prior to April, 1912, have  not  been produced by the executors.  It is true that it is their case that  they did not find these account books when  they  took over the estate of Bamalingam, whereas the plaintiffs assert that  the  account-books  were  withheld  by  the  executors because, if produced, they would have destroyed the  defence raised  by the executors.  The High Court, on the  evidence, was unable to raise any definite inference in regard to this matter.   Admittedly, the executors had taken possession  of the  property of Ramalingam immediately after his death  and it is somewhat surprising that no inventory of the  property of books of account or documents of Ramalingamif    any, prepared at the time     when the execute totook possession of property    should have beenproduced.  The  executors are  men of considerable experience of business affairs  and Wajid  the principal executor was an officer holding a  high office in public administration.  They would certainly  have realised  the  necessity  of  making  an  inventory  of  the documents and the property which they took in their  custody If  the books of account immediately prior to Ist of  April, 1912, bad not come in their possession, the executors  would have  forthwith produced the inventory made by them  at  the time of taking over possession of the estate. Even  if we draw no adverse inference against the  executors because  they  failed  to  produce  the  books  of  accounts immediately  prior  to  April  1,  1912,  there  are   other circumstances which support the inference raised by the High Court.   The  release deed does not take  into  account  the business at 113 Gadag which was conducted by Devraj and in which  Ramalingam assisted.   As we have already pointed out for  carrying  on this  business  large  amounts were  sent  from  the  family account.   There is evidence that there were assets in  that business.  In the General Account there are certain  entries in   the   accounts  of  Devraj  which  cannot   be   easily appreciated.   After  the  entry dated  5th  March,  191  1, crediting Rs. 280/-, there are some debit entries under  the date  31st March, 1911, the following four of which are  for amounts of Rs. 1,000/- and more :-  Debit given by V. V. S.

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Mudaliar in connection                     with cheque          .........Rs. 1,000-               0-0                Debit S. R. B. cheque oneRs. 15,000-0-0                    Debit Electricity cheque one       Rs.               1,619-15-8                    Debit Nandidurgam cheque            Rs.               9,322-12-6 Under  the  same date there are ten entries,  of  which  the following four are for Rs. 2,000/ and more :-                    Credit V. V. S. Moodr. given                        previously            ....        Rs.               12,142-5-7  Credit                   ....   Rs. 2,000-0-0                    Credit                    .....       Rs.               10,000-0-0                    Credit                      .....     Rs.               10,000-0-0      As  a result of these entriesRs.   28,085-11-6   stood debited and Rs.25,689-11-4   stood  credited   in   the account  of  Devraj.   Counsel for  the  executors  has  not attempted to explain these entries.  The trial Court thought that  the  credit  entries  represented  payments  made   by Ramalingam  to Devraj.  There is no evidence in  support  of this  view.  The learned Judge appears to have thought  that because 114 the  good will was agreed to be given to Ramalingam-that  is how  he  read the evidence of  Masilamany  Pillai-Ramalingam became  the  owner of all its assets, and  the  account  was since  the  date of the agreement in reality an  account  of Ramalingam.   There  is no warrant for this view.   But  the entries do show that large amounts were credited in the name of  Devraj  and debited, at the end of the year.   If  these entries were in respect of the Gadag business, the inference that the deed of release was only in respect of the separate estate of Shanmugan may receive some support. The  conduct of Shanmugam subsequent to March 30, 1912,  has also  some  bearing  on this question.   Shortly  after  the execution of the Release deed Shanmugam left for the  United Kingdom  and  it is stated that he returned to  India  after more  than  a year.’ It does not appear that  thereafter  he took  any interest in the Kolar Gold Fields business but  he continued  to  make  large withdrawals.   In  the  books  of account of the partnership between Shanmugam and  Ramalingam an  amount exceeding Rs. 34,000/- is initially  credited  to Shanmugam  and  Rs.  7,500/. to Ramalingam.   But  what  the shares  of the two partners in the business were is  nowhere indicated.   There  is no deed of partnership,  nor  is  any balance  sheet drawn.  There is no evidence of  division  of profits  of the business.’ By 1916, Shanmugam had  not  only withdrawn  the amount initially credited to him but  he  had withdrawn  an  additional  amount of  Rs.  35,538/12/-.   He thereafter  ceased  to have any interest in the  Kolar  Gold Fields  business and the amount overdrawn was  written  off debiting it to "premium account." This conduct may  indicate that after March 30, 1912, Shanmugam had no interest in  the business even though the books of account showed that it was a partnership business.  Even if it be hold that Shanmugam  115 was a partner in the business from April 1, 1910, to May  1, 1916,   the  inference  is  inevitable  that  the   building contractors business carried on by Ramalingam thereafter was directly  related the business inherited  from  Vydialingam. The circumstance that Shanmugam ceased to have any  interest

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in  the  business, after overdrawing Re.  35,000/-odd,  also corroborates  the  testimoney  of  Masilamany  Pillai   that goodwill   of   the  business  was  given   exclusively   to Ramalingam.   From this evidence it is clear that  Shanmugam was unwilling to continue the joint family business at Kolar Gold Fields and that he desired to secure an assurance  from his  brothers  that  they had no interest  in  his  separate business  at  Kalai and acquisitions thereof  and  for  that purpose, the "Release deed" was obtained from them. The High Court held that the amount of Rs. 4,000/-  received by  Ramalingam  by sale of the house and the amount  of  Rs. 2,500/- received from Shanmugam were put in the business  by Ramalingam.   Wajid deposed that the consideration  received by sale of the house was given by Ramalingam to C. Savade  & Co.,  and  to his sister.  In our view the High  Court  ’Was right in holding that the testimony of Wajid who has deposed that  he was present at the time when Rs. 500/- were  ’given by  Ramalingam  to his sister is not reliable, Wajid  was  a stranger  to  the  family  and  there  was  no  reason   why Ramalingam should if the story be true keep Wajid present at the  time  of handing an amount of Rs, 500/-  to  his  needy sister.  The story of Wajid that Ramalingam was carrying  on business of a building contractor in the name of Rambal  and Co.,  and  that  in that business he suffered  loss  is  not supported  by  any independent evidence and does  not  carry conviction. Having  regard  to all these circumstances we do  not  think that the recitals in the sale deed and 116 the deeds of release are by themselves sufficient to justify this  Court  in  refusing  to accept  the  finding  of  fact recorded by the High Court on appreciation of evidence. The  High Court has held that the business which  Ramalingam carried  on since April 1, 1912, apparently  in  partnership with  Shanmugam  till 1916, and thereafter  exclusively  was directly connected with the business which devolved upon the three  sons Vydialingam when he died in 1.905.  Prima,-facie the  findings  recorded by the High Court  are  findings  of fact,  and  this  Court  normally  does  not  enter  upon  a reappraisal  of  the evidence, but we have  entered  upon  a review  of the evidence on which they were founded,  because the  High Court of Mysore had on the identical  issue  about the  character  of the property devised under  the  will  of Ramalingam arrived at a different conclusion. A  dispute with regard to the nature of the property  called "Palm  Grove"  for the purpose of  considering  whether  the judgment  of  the Mysore High Court is conclusive  qua  that property  remains to be mentioned.  It appears that at  some time about which there is no clear evidence-"Palm Grove" was agreed  to be sold in plots by Ramalingam.  In the suit,  as originally  filed  in  the Bangalore  District  Court  "Palm Grove"  was  one of the properties in respect of  which  the plaintiffs made a claim.  But that claim was withdrawn  when the,  Madras properties were excluded, and no  decision  was therefore  given  by the District Judge in  respect  of  the "Palm Grove" property.  Before us’ no argument was  advanced to show that during the lifetime of Ramalingam this property had acquired the character of movable property- so that  the decision of the Bangalore Court would operate as  conclusive in  the Madras suit.  The High Court of Madras rejected  the contention of  117 the  executors that it must be deemed to have  acquired  the character of movable property.  Our attention is not invited to  any  material in support of the contention that  it  had

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acquired such a character. Certain directions were, however, given by the learned trial Judge  observing  that ,the proceeds  realised  from  ",Palm Grove’  constitute  the  assets  of  Ramalingam  subject  to certain  equities that may arise in favour of  Narayanaswamy Mudaliar..................... on the foot of the doctrine of quantum  meruit to be determined in the final decree  or  in the execution proceedings." We need express no opinion as to the  true  import  of  this  direction,  for   Narayanaswamy Mudaliar who was primarily concerned with the direction, did not  prefer an appeal against that part of the  decree,  and counsel  have  not asked us to interpret that  part  of  the decree.   The  High  Court observed that in so  far  as  the executors were concerned, all they can in reason ask is that such  disbursements  as  being  bona  fide  Made  should  be regarded  as properly debatable against the estate and  that they  should not be surcharged in respect of such  payments, and   accordingly  they  added  a  qualification  that   the executors need not pay such sums as they had bona fide  made to  Narayanaswami  Mudaliar in respect of  that  transaction either on the basis of quantum meruit or as a partner of the business. In that view of the case the decree passed by the High Court on  the  footing  that the plaintiffs are  entitled  to  the immovable properties in Madras and not the movables must  be confimed. The appeals therefore fail and are dismissed. The High Court at Madras has held on the evidence, that  the properties which were disposed of by Ramalingam by his  will were not his separate 118 estate but were joint family properties, whereas the  Mysore High  Court has taken a contrary view.  We have on a  review of  the  evidence agreed with the view taken by  the  Madras High  Court.  Evidently, as a result of the judgment of  the Mysore High Court the heirs of Ramalingam have lost property of  substantial  value.   We  think  that  in  the   special circumstances of this case the plaintiffs should not be  out of  pocket in respect of the costs of this  litigation.   We therefore  direct that all costs of the  plaintiffs  between advocate  and client, in the suit, the appeals in  the  High Court and in this Court should come out of the estate in the hands of the executors. The remaining appeals may now be dealt with briefly. C. A. Nos. and 279, 280 of 1958 Appeals  Nos. 279 and 280 of 1958 arise out  of  proceedings for revocation of probate granted by the Madras High  Court. In  T.  S.  0. No. 52 of 1944,  Mr.  Justice  Chandrasekhara Aiyyar  of  the Madras High Court, by order dated  July  17, 1944,  granted  probate  to the  executors  under  the  will of .Ramalingam dated September 10, 1943.  The learned  Judge expressly  stated in the order that the probate  granted  by him  was  subject to the result of the appeal filed  to  His Majesty-in-Council against the order of the Resident’s Court at  Mysore.   After  the appeal to  the  Privy  Council  was disposed  of for reasons set out in the principal  judgment, by  Petition No. 469 of 1953, the plaintiffs  and  Gajambal, widow  of Ramalingam applied for revocation of  the  probate granted  by the Madras High Court.  This petition was  heard together with Suit No. 214 of 1944.  The learned trial Judge ’  ordered  that the probate granted on July  17,  1944,  be revoked.  Against that order an appeal was preferred by  two of  the executors to the High Court of Madras.   In  appeal, the High Court restricted the operation of the revocation in so far

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110 as  it’  affected  the immovable properties  in  Madras  and vacated the order in relation to the movables.  Against  the order passed by the High Court, two Appeals-Nos. 279 and 290 of 1958 have been filed.  C. A. No. 279 of 1958 is filed  by the  sons and widow of Ramalingam, and they  have  claimed that the order of revocation made by’ Mr. Justice  Ramaswami be  confirmed.   In  Appeal No. 280 of  1958  filed  by  the executors  it  is  urged that the  order  of  revocation  be vacated  in its entirety.  At the hearing of the appeals  no substantial   arguments  were  advanced  before   us.    The executors  did  not contend that even if this  Court  holds, agreeing  with  the High Court of Madras that  the  will  of Ramalingam was inoperative in so far it purported to dispose of   the  immovable  properties  of  the  joint  family   of Ramalingam  and  his  sons. at  Madras  the  order  granting probate  in respect of the immovable property  should  still continue to operate.  They have conceded before us that such an  order  revoking  grant of probate  when  it  has  become infructuous  because  of a decision in a  suit  relating  to title to the property affected thereby may properly be  made in  exercise  of the powers under s. 263 (d) of  the  Indian Succession  Act, 1925.  The claim of the sons and the  widow of  Ramalingam for revocation of the order granting  probate by the Madras High Court in its entirety cannot be sustained because, for reasons set out by this Court, they are  unable to claim title to the movables of Ramalingam in Madras. The appeals, therefore, fail and are dismissed with costs. Civil Appeal No. 281 of 1958 This  appeal  arises out of a suit filed by  the  .executors under  the  will of Ramalingam for a declaration  that  2000 shares in the India Sugars & 120 Refineries  Ltd.,  standing in the name  of  Vishwanath,  in truth, belonged to Ramalingam and that be purchased the same for  himself and out of his self-acquisitions but benami  in the  name of Vishwanath, and accordingly under the  will  of Ramalingam they were entitled to those shares as part of the estate.   Vishwanath resisted the suit contending  that  the shares belonged to the joint family consisting of Ramalingam and  his sons and that on the death of Ramalingam, his  sons as  surviving  co.  parceners became owners  of  the  entire property  of  the joint family, including the  shares.   The trial  Judge dismissed the suit filed by the executors.   In appeal,  the High Court of Madras held that the judgment  of the Full Bench of the Mysore High Court dated July 29, 1949, was  conclusive as between the parties as to title to  those shares.   The High Court accordingly allowed the  appeal  of the  executors.  Vishwanath has appealed against the  decree of the High Court rejecting his claim. For reasons set out in the principal appeals, we are of  the view  that the appeal must be dismissed.  But we are of  the view that the cost,% of.  Vishwanath as between the advocate and client of and incidental to the suit and the appeals  in the  High  Court and in this Court should come  out  of  the estate of Ramalingam in the hands of the executors. Civil Appeal No 281 of 1958 This  appeal  arises  out  of Suit No.  200  of  1944.   The executors   sued  Gajambal,  widow  of  Ramalingam   for   a declaration   that  2695  shares  of  the  India  Sugars   & Refineries  Ltd.   Standing in her name  were  purchased  by Ramalingam benami out of his own funds and the same were his selfacquisition,  and they as executors of the will  of  the were entitled to those shares under  121

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authority vested in them under the will dated September  10, 1942.   The  executors  prayed for a  declaration  that  the shares  were  held  benami by Gajambal for  the  benefit  of Ramalingam  as the true owner.  Gajambal admitted  that  she held  the shares benami out she contended that they did  not belong  to Ramalingam but to the co-parcenary of  Ramalingam and  his  sons and ’on the death of  Ramalingam  the  shares devolved  upon the surviving coparceners and  the  executors had  no  title or right thereto.  This suit was  tried  with Suit No. 214 of 1944.  The trial Judge held that the  shares belonged to the joint-family of Ramalingam and his sons  and the  executors  acquired no right to the  shares  under  his will.  In appeal, the High Court agreed with the view of the trail  Court  as to the title to the shares, but,  in  their view,  the judgment of the Mysore High Court in  respect  of movables  including the shares in dispute was conclusive  as to   the  rights  between  the  parties.   The  High   Court accordingly  reversed the decree passed by the  trial  Court and decreed the suit of the executors.  Against that  decree Gajambal has preferred an appeal in this Court which is  No. 282 of 1958. For  reasons  set  out in the  judgement  in  the  principal appeals,  it  must be held that the judgment of  the  Mysore High  Court  was  conclusive as between  the  executors  and Gajambal  in so far as it related to title to the shares  in dispute.  The appeal therefore fails and is dismissed.   But we  are  of  the view that the  costs  of  Gajambal  between Advocate  and client of and incidental to the suit  and  the appeals in the High Court and this Court should come out  of the estate of Ramalingam in the hands of the executors. Civil Appeal No. 283 of 1958 This  appeal arises out of a suit relating to  an  immovable property, Nose. 1 and 2 Waddels Road, 122 Kilpauk, Madras. Of this property, the second respondent  T. A.  Ramchandra Rao was the former Owner.  There  were  court proceedings  in Civil Suit No. 10 of 1940 filed by  Gajambal against  T.A.  Ramchandra Rao, and a compromise  decree  was passed  in that suit and pursuant to that compromise, T.  A. Ramchandra  Rao sold the property to Gajambal by deed  dated August  7, 1940.  The executors of the estate of  Ramalingam filed  Suit,  No.  91 of 1944 in the High  Court  of  Madras against Gajambal and T. A. Ramchandra Rao for a  declaration that the Waddels Road property formed part of the estate  of Ramalingam  and  that Gajambal was merely  a  benamidar  for Ramalingam, and for an order for possession of the  property from Gajambal and T. A. Ramchandra Rao and for mesne profits at  the  rate  of  Rs. 50/- per  mensem  from  the  date  of Ramalingam’s  death till the date of delivery of  possession to  the  executors  Gajambal  contended  that  the  property belonged ’to her and that it was acquired by her out of  her own  funds.   T.A. Ramchandra Rao denied the  title  of  the executors and also liability to pay mesne profits.  The suit was  also tried with Suit No. 214 of 1944.  The trial  Court decreed the suit in favour of the executors but he  declared that  the  property belonged to the sons of  Ramalingam  and they were entitled to possession and mesne profits.  Against the decree passed by the trial Court the executors preferred an appeal to the High Court.  The appeal was dismissed. In  this appeal filed by the executors the principal  ground set up in the Memo of appeal is that the sons of  Ramalingam were  not parties to the suit, and no decree  directing  the executors  to deliver possession to the sons  of  Ramalingam could be passed.  In the principal appeals 277 and 278 of 1958, we have  held

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that the executors did not obtain any  123 title  to  the  immovable properties in  Madras  which  were sought  to be disposed of under the will of Ramalingam.   It is true that to Suit No. 91 of 1944, the sons of  Ramalingam were not parties.  But as on the view taken in the principal appeals, the executors acquired no title to the property  in ,suit that being the property belonging to the joint family to  which Ramalingam belonged-interference with  the  decree passed by the High Court will not be called for. Counsel  for  the  executors has  advanced  no  argument  in support of the appeal.  We may observe that T. A. Ramchandra Rao  has  set  up  a certain  arrangement  between  him  and Gajambal  relating to his right to occupy the  Waddels  Road premises  free of payment of rent, and it is his  case  that this  arrangement was confirmed after issues were framed  in Suit  No. 91 of 1944 between himself and Vishwanath.  T.  A. Ramchandra Rao, it appears, did not prefer any appeal before the  High Court of Madras against the decree passed  by  the trial  Judge nor did he attempt to prove the, agreement  set up  by  him.  He has not preferred any  appeal  against  the decision  of the High Court to this Court.  We  dismiss  the appeal filed by the executors.  We may observe that for  the purpose of deciding this case it is unnecessary to  consider whether  the arrangement set up by T. A. Ramchandra  Rao  is proved.   The  executors  will pay the costs  of  the  first respondent Gajambal in this appeal. HIDAYATULLAH, J.-One Ramalingam, a prosperous contractor and businessman, died on December 18, 1942.  Three months before his  death, he executed on September 10, 1942, the  last  of his  many wills.  By that will, he cut off his  eldest  son, Viswanathan  and a, daughter, Bhagirathi,  completely   from any benefit, gave some immovable property and shares to  his widow, small bequests to 124 his  other  daughters,  his  grandson,  Tyagaraja,  son   of Viswanathan  and his grand daughter from  Bhagirathi.   From the  residue  of  his  vast estate,  he  directed  that  Rs. 50,0001- be spent over a ward in a hospital and the rest  be applied for certain charitable purposes of a public  nature. He   appointed  three execuitors: ( 1) A. Wajid  (a  retired official  of Mysore State), (2) Narayanaawamy  Mudaliar  and (3)  S. L. Mannaji Rao.  For sometime before his death,  his relations with his family were estranged and the latter  had gone to the length of starting proceedings on June 2,  1942, under  the  Lunacy  Act in the  District  Court,  Civil  and Military Station, Bangalore, against him.  Some evidence was recorded  in that case, and medical experts  were  examined. After  the  death of Ramalingam, the executors  applied  for probate  of  the  will  in the  District  Court,  Civil  and Military  Station, Bangalore.  This was Suit No. 2 of  1913. It  was heard by Mr. P. Madappa, who granted probate of  the will  on November 27, 1443.  Two appeals filed  against  the decision (R. A. Nos.  1 and 2 of 1944) were dismissed by the Court  of  the British Resident Mysore on July 5,  1944.   A further appeal to the Privy Council was admitted, but it was later  declared  by the Judicial Committee  to  have  become incompetent  due to the Constitutional Changes in which  the Civil  and  Militar Station was handed back  to  the  Mysore State. (P.C....Appeal No. 53 of 1948 decided on December  1949). Meanwhile applications for probate were.also  filed  in  the District Court, Bangalore and.the Madras High Court. some of the properties affected by the will being situated, in these jurisdictions.   Probated  were granted but subject  to  the decision of the appeal before the Privy Council.

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We  now come to other suits, some proceeding from  the  sons and  widow of Ramalingam and some,from the executor  of  his will.  They were field in  126 the Mysore State and in the High Court of Madras.  Two suits were filed by the sons of Ramalingam in the District  Court, Bangalore  and  in the District Court,  Civil  and  Military station,  Bangalore respectively.  The first was Civil  Suit No.  56 of 194 , and the second civil suit No. 60  of  1944. These  were suits for possession of properties, movable  and immovable,  together with the business of Ramalingam  within the  jurisdiction of these two Courts, on the averment  that Ramalingam belonged to a Hindu coparcenary, and was carrying on the family business started with the family funds.  These suits  were  directed  against  the  executors  and  diverse persons  said  to be in possession of the  properties.   The plea  of  the executors per contra was that these  were  the personal  properties and business of Ramalingam, over  which he  had  full  disposing power.  The two  suits  were  later consolidated  and  were  decided in favour of  the  sons  of Ramalingam by the District Judge, A third suit was filed  by the  sons of Ramalingam in the Madras High Court  (0.   S.), and  was  numbered C. S. No. 214 of 1944 for  possession  of properties, both movable and immovable, said to be  situated in Madras.  A detailed reference will be made later to these properties. In  addition  to these suits many suits were  filed  by  the members  of the family and the executors of the will in  the Madras High Court (O.S.). These were C. S. Nos. 200 of 1944, 203  of 1945, 274 of 1944, 344 of 1946 and 91 of  1944.   To these suits it is not necessary presently to refer.  In  all these other suits in Madras, the claim was for possession of some  specific  property  either under the will  or  on  the averment that it belonged to a joint family.  Leaving out of account  the  suits concerning specific properties  for  the present, the net position was that C. S. No. 56 of 1942  and C. S. No. 60 of 1944 related to properties in Mysore  State, and  C. S. No. 214 of 1944 in the Madras High Court  related to 126 properties, movable and immovable, in Madras. ,In both,  the main issue to be tried was whether Ramalingam died a  member of  a  coparcenary, possessed of joint family  property  and joint family business. The  consolidated suit in the Court of the  District  Judge, Bangalore,  was  decided  first and it  was  held  that  the properties  were  joint and that the will  was  incompetent. Two appeals were then filed in the Mysore High Court, R. As. Nos. 104 and 109 of 1947-48.  The appeals were first  placed before Paramasiviah, C. J., and Balakrishaniah, J. They were adjourned  at one of the earlier hearings, as  a  compromise was  contemplated.  Later, the parties were at issue  as  to whether a compromise took place. ..According     to      the executors, none took place;...but  according to the  family, it did take place. .The   appeals   were  then   fixed   for September 23, 1948.  On September 22, 1948, Paramasiviah, C. J., suddenly retired, and Mr. P. Medappa was appointed Chief Justice.  The appeals were then placed before Balakrishaniah and  Kandaswami Pillai, JJ., and the question of  compromise was raised.  The High Court, however, did not enquired  into the matter, since it was of opinion that the compromise,  if any,  could  not be recorded.  This was on March  15,  1949. After  the  appeals  were  heard,  the  two  learned  Judges differed, and they pronounced separate judgments  on   April 2, 1949.Balakrishaniah, J., was for allowing the appeals,and

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Kandaswami Pillai, J., for    dismissing them.According to the Code of Civil     Procedure in forcein       Mysore State,  the judgment of the District Court would  have  been confirmed, unless a Judge of the Division Bench or both  the Judges referred the case under s. 15 (3) of the Mysore  High Court  Regulation, 1884.  Balakrishaniah, J.,  referred  the appeals to a Full Bench. 127 The  Mysore  High Court then consisted of five  Judges.   Of these, one learned Judge had appeared in the case and wished to be left out.  Of the remaining four, Balakrishaniah,  J., had  already  heard the appeals before,  and  expressed  his judgment  on the facts and the law involved in them.   There remained  three  other Judges.-The Chief  Justice,  who  had decided  the  probate case and had  passed  some  strictures against  the family in his judgment, Puttaraja Urs, J.  (who was appointed in place of Kaildaswami Pillai, J.),. who  had recorded the evidence in C. S. No. 60 of 1944 between  1945- 47 and Mallappa, J., had almost no connection with the case. The  Full  Bench that was constituted to hear  the  appeal,% then was composed of the Chief Justice, Balakrishaniah,  J., and Mallappa, J. This Full Bench heard the appeals or rather the  arguments on behalf of the executors, since the  family took no part in the hearing and their counsel withdrew.  The appeals  were  allowed  by the  Full  Bench,  Mallappa,  J., pronouncing  the  judgment:  with which  the  other  learned Judges  agreed.   This  was on July 29,  1949,  the  hearing having concluded on the 27th July, that is two days  before. Civil Petitions Nos. 61, 62, 49 and 50 of 1949-50 were filed to obtain a review, but were dismissed by the Full Bench  on November 10, 1949. Thus finished the Mysore part of the litigation.  Before the Full Bench  in the Mysore High Court  heard  the  appeals, fruitless  efforts  were made by the sons of  Ramalingam  to induce  the  Maharaja to appoint ad hoe Judges to  hear  the appeals.  Requests were made by them to the Chief Justice to grant  them  time, so that the state  authorities  might  be moved  against  and  also to adjourn the  appeals  on  other grounds.  The sons of Ramalingam gain that they were anxious to  secure  the  services of outside counsel  to  argue  the appeals, but the requests were 128 rejected,  These are all matters of record, and there is  no dispute about facts.  It was alleged in the Madras suit that there were unpleasant scones between Medappa, C. J., and one Raju,  counsel  for the appellant, about which I  shall  say something later, as the facts are in dispute.  In short, the appeals were allowed, and the two suits were dismissed. This  is a convenient stage to refer to the pleas raised  in the  Mysore suits and the reliefs claimed therein.  In  this connection,  we need refer only to C. S. , No. 56  of  1942. The  case  of  the sons of Ramalingam  was  that  Ramalingam received  his-father  considerable  paternal  estate,   both movable and immovable.  The immovable property was sold  and with  the proceeds of the sale and other  ancestral  assets, several  businesses were started by him commencing with  the business of a building contractor in Kolar Gold Fields.   He prospered  in  this  joint  family  business,  and  all  the properties  were acquired from this nucleus and  were  joint family  properties,  and  even if  there  was  any  separate property  it  was thrown into the common  stock  and  became joint  family property.  Possession was thus claimed of  all the  properties  in the Schedules to  the  plaint  including inter alia : Schedule A: (1) Houses Nos.  1 and 2, Waddells

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Road, Madras (Item 13)               (2)   Palm Grove, Madras (Item 18)               (3)   18566   shares  of  Indian  Sugars   and               Refineries,  Ltd., in the name  of  Ramalingam               (Item 22)               (4)   1000  shares  of the Indian  Sugars  and               Refineries,  Ltd.,  in the name  of  A.  Wajid               (Item 24)                129               Schedule  B  : (1) Kolar Gold  Field  business               (Item 1)               (2)   Vegetable oil building contract (Item 5)               (3)   Oriental Films (Item 6). The executors denied that there was any ancestral nucleus or property  or  funds or business from which  the  estate  was built  up,  They  denied the existence  of  a  joint  family business.   According  to them, Ramalingam  by  his  unaided enterprise  carried  on  business  for  over  26  years  and acquired all the properties in which no other member of  the family  bad  any share.  Later, the plaint  was  amended  to exclude  the  immovable  properties  outside  the  State  of Mysore.    Suitable  issues  were  framed  to  cover   these allegations  and  counter-allegations and all of  them  were finally  decided in favour of the executors.   The  District Judge  decreed the suit, but it was held by the  Fall  Bench that  none  of the properties,was acquired with the  aid  of joint family nucleus, and that the Kolar Gold Field business was  the private business of Ramalingam.  The decree of  the District Judge, who had ordered possession of the properties in favour of the family, was reversed. The suit in the Madras High Court had been stayed to  await the dicision of the Mysore suits.  In that suit,  possession of  the  movable  and immovable  properties  in  Madras  was claimed.  The immovable properties were :               (1)   House No 1, Weddells Road, with land.               (2)   House  No. 3, Weddells Road,  with  land               etc.               (3)   Some parcels of land.               (4)   House No. 14, Monteith Road, Madras. The               movable properties were:               130               (1)   Assets of Oriental Films, Madras.               (2)   18366 3hares of Indian Sugars and Refin-               eries Ltd., Hospet.               (3)   1000 shares of Indian Sugars and  Refin-               eries Ltd., Hospet               (4)   Balance of the amount for building cons-                             tructed  for  the  Mysore  Vegetable  oil  Co. ,               Madras. It  was  stated in the plaint that since the  executors  had objected  to  the  jurisdiction of’  the  Mysore  Courts  to entertain the claim in respect of the properties situated in Madras, another suit was being filed.  The same pleas  about the  joint  family, its nucleus, its  family  members  were, raised.   The defence was also the same.  When the  judgment of the Mysore High Court was relied upon by the executors as conclusive  on  the point of jointness of  the  family,  its nucleus  and  the joint character of the  Kolar  Gold  Field business,  the sons of Ramalingam alleged that the  judgment was  not  in accordance with the rules of  natural  justice, that  the decision was coram non judice, and that the  Chief Justice  and Balakrishniah, J., were not  competent  Judges, due to their bias and interest, to sit on the Bench.  In the course   of   numerous   affidavits,   the   eldest son,

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Vishwanathan, made several allegations showing the  interest and prejudices of Medappa, C. J., his conduct in and out  of Court, and the violation of the rules of natural justice  by the  Full  Bench, over which he  presided.   Similarly,  the presence  of  Balakrishniah, J:, who had already  given  one judgment in the case and had attempted a compromise  between the rival parties, was alleged to render him incompetent  to sit  on  the Full Bench.  On the other side,  the  executors claimed  that the Mysore High Court bad finally decided  the issue of jointness in relation  131 to  all property, movable and immovable.  They claimed  that in  this suit the questions of jointness of the family,  the character of the Kolar Gold Fields business and the  absence of nucleus must be taken to have beenconclusively decided in the  Mysore  suits and appeals, and could not  be  reopened. The  sons of Ramalingam denied that the Mysore Court  was  a Court  of competent jurisdiction, in so far as the  property in  Madras was concerned.  In short, the  executors  claimed that  the Mysore judgment, in so far as any  matter  decided therein, was conclusive, while the family maintained that it was  not a Court of competent jurisdiction and the  judgment was  itself  coram  non judice, and  had  been  rendered  by violating  the  principles of natural  justice.   The  first fight thus was under s. 13 of the Code of Civil Procedure.  Though  numerous  facts  were  alleged  to  show  bias  and interest on the part of the Chief Justice, the parties  went to  trial on one allegation only.  The  allegations  against Medappa, C. J., were ; (a) that he was a close friend of  A. Wajid,  (b) that he had decided the probate case, bad  heard the  witnesses  now  relied  upon  and  had  already  formed pronounced  opinions  about  them and his  judgment  in  the probate  case  was  ’in danger of,  being  annulled  by  the decision  of the District Judge under appeal before him,  as the  latter  had held the family and the  properties  to  be oint, (c) that when he was a District Judge, he was using  a car  belonging  to the executors and was  thus  under  their obligation and also interested in them, and (d) that he  had tried  to  dissuade  Mr.  Raju,  counsel  for  the  sons  of ’Ramalingam,  from conducting this case.   Rajagopalan,  J., who heard the suit in the earlier stages, selected from  the allegations  two  which, according to him,  if  established, were  capable of establishing an ’interest’ and a ’bias’  in Meddappa, C. J. He declined to frame issues about 132 the  other allegations.  The two selected  allegations  were the  use  of the car and the attempt to dissuade  Mr.  Raju, Rajagopalan,  J., also held that the judgment of the  Mysore High  Court,  did not constitute res judicata  at  least  in respect  of  the immovable property in Madras,  (a)  because this questionwasnot considered by the Mysore High Court  due to amendment of the plaint, and (b) because the Mysore Court had no jurisdiction to try it. Against the decision of Rajagopalan J., both sides appealed. The  executors  were  aggrieved by the  decision  about  res judicata  and  the  enquiry into the conduct  of  the  Chief Justice,  and  the  sons of Ramalingam,  by  the  restricted enquiry  into  the  conduct  of  the  Chief  Justice.    The Divisional  Bench,  which  heard  the  appeal,  agreed  with Rajagopalan, J., about res judicata, and affirmed that  part of  his order.  The Divisional Bench held that the  incident of  the use of’ the car was too old, even if true,  to  show interest  and  was not relevant.  The  issue  regarding  the dissuation of Mr. Raju was allowed to stand. The  allegations against Balakrishniah J., were that he  had

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suggested the compromise when sitting with Paramasiviah,  C. J., and had discussed, the terms, that he had thus  rendered himself  a Witness, that he made strong remarks against  the family  duringthe hearings of the appeals when sitting  with Kandaswami  Pillai, J., and the same were expressed  in  his judgment dated April 2, 1949, and that ho showed his bias by awarding costs not out of the state but against the sons  of Ramalingam.   He  was said to be incompetent to sit  on  the Full  Bench  in  view of his  judgment  already  pronounced. There were general allegations about the refusal to  adjourn the  hearing at the request of the sons of  Ramalingam,  and even when Sir Alladi Krishanaswami  133 Ayyar,  the senior counsel, was to be absent on public  work in the Constituent Assembly. The  parties  then went to trial before Ramaswami,  J.  More affidavits  and court-affidavits were filed.   Though  fresh evidence  was also led in this suit, by consent  of  parties the evidence recorded in the two Mysore suits was treated as evidence  in this suit.  The records of these suits  and  of the  Privy  Council  were  also  marked  by  consent.    The executors  asked that the question of the application s.  13 of  the  Code of Civil Procedure be tried as  a  preliminary issue.   This was declined and a Letters Patent  Appeal  and One to this Court also failed.  The affidavit filed in  this Court were also marked in the case. Among the witnesses examined in the case were  Vishwanathan, the eldest son of Ramalingam, and Puttaraja Urs, J., for the plaintiffs,  and  Abdul Wajid,  Narayanaswami  Mudaliar  and Balakrishniah,  J., for the other side, Medappa,  C.J.,  and Raju  were cited but were not examined.  After a  protracted trial,  Ramaswami,  J., held that the judgment of  the  Full Bench  of Mysore was coram non judice and that the  judgment was  thus  not conclusive under s. 13 of the Code  of  Civil Procedure-.   He  further held that the properties  in  Suit were  those  of a joint family.  The claim of  the  sons  of Ramalingam,  was  thus decreed, and possession  was  ordered against  the executors and also accounts.  Ancillary  orders were passed in the other suits already mentioned, which were tried along with the main suit.  C. S. No. 214 of 1944. The  executors  appealed  under  the  Letters  Patent.   The Divisional Bench upheld the findings about the joint family, but  reversed those, about the Mysore judgment being  coram, non,  judice.  As a result the Mysore judgment was  held  to bind the 134 Madras Courts in respect of the movables but not in  respect of  the immovable property in Madras.  From the judgment  of the  Divisional  Bench, Civil Appeals Nos. 277  and  278  of 1958, have been filed respectively by the sons of Ramalingam and  the executors.  The sons of Ramalingam raise the  issue that the judgment of the Full Bench of the Mysore High Court was  coram  non  judice and not  conclusive  in  respect  of immovables, while the executors claim that it is  conclusive in  respect of any matter decided by it, particularly  about the Kolar Gold Fields business being the private business of Ramalingam, contending that the only point that was open for decision  in the Madras High Court was whether any  item  of property  was  acquired without the funds  of  that  private business. Though these appeals were argued at considerable length  the points  were only two.  They are : 1. the application of  s. 13  of the Code of Civil Procedure from these  view  points, viz.,  (1) violation of the principles of  natural  justice, (2) bias and interest of some of the Judges constituting the

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Full  Bench, (3) competence of the Mysore Courts as  to  the controversy  between  the  parties and the  extent  of  that competence  ;  and  11.  whether  Ramalingam  died  in   the jointness and whether the estates left by him including  his businesses   belong  to  the  joint  family,  the  sons   of Ramalingam being the survivors. Section 13 of the Code of Civil Procedure reads :               " 13.  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               135               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 lo be founded on an incorrect  vie w               of international law or a refusal to recognise               the  law  of British 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 British India." it will thus be seen that the case was sought to be  brought under  cls. (a), (c) and (d) of the section by the  sons  of Ramalingam,  while  the executor deny  the  allegations  and claim the benefit of the opening words.  I shall, therefore, take up these matters first and shall consider the  evidence before deciding how far, in law, the judgment is conclusive, if  at all, I shall follow the same order which I  have  set out. The  first head is whether during the hearing of the  appeal by the Full Bench the principles of natural justice could be said  to have been violated.  This question, divides  itself into two parts.  The first part concerns the actual  hearing and  the  second  the composition  of  Benches.   The  first contention  is  that  the Full Bench did  not  give  a  fair hearing and 136 compelled the case of the sons of Ramalingam to go  unheard. This was said to have arisen from the refusal to adjourn the appeals as requested by the sons of Ramalingam.  Now, such a question can hardly be considered by another Court not hear- ing,  an  appeal  but deciding whether the  conduct  of  the Judges of foreign Court who heard the appeal,, amounted to a violation  of the principles of natural justice,  unless  an extremely clear and strong case is made out.  The conduct of a case is a matter ordinarily for the Court hearing it.  All that  is stated is that the sons of Ramalingam were  hustled and  not  granted  some adjournments, when  they  asked  for ,them.  Whether a particular prayer for adjournment ought to have been granted is hardly a question for another Court  to decide.  In, this case the conduct of the sons of Ramalingam cannot  be  said to be entirely correct.  It  is  matter  of record that from the moment the names of the Judges of  the Full  Bench  were announced they had no desire to  have  the case  heard  and  decided by them.   Admittedly,  they  made applications  to the Maharaja and Dewan for the  appointment

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of ad hoc Judges.  The attempt to get the appeals  adjourned was  based on two reasons : firstly to avoid  the  presiding Judges, or at least two of them, and secondly, to enable Sir Alladi  Krishnaswami Ayyar to appear for them.  The  attempt to  secure adjournments were not only to suit  their  senior counsel  but  also  to play for time  to  get  other  Judges appointed,  if  possible.  As to the senior counsel,  it  is enough to say that there were other counsel in the case, but the sons of Ramalingam asked them to withdraw from the case. This was not done bona fide but merely to force the Court to grant  an  adjournment  it  had  earlier  refused.   In   my judgment, the sons of Ramalingam had long notice of the date of hearing, and if they wished to engage other counsel, they had ample time and opportunity to do so.  It was argued that the appeals were adjourned once 137 by the Full Bench to accommodate counsel for the  executors, but  when  Sir  Alladi  asked for  an  adjournment,  it  was refused.   It was said that this showed a  double  standard. It  is  common knowledge that an  adjournment  is  sometimes given  because  it  is asked betimes  but  not  another,  if delayed.   All  Courts do that.  Perhaps,  the  Full  ’Bench might  well  have granted an adjournment for  a  short  time specially  as the sons of Ramalingam were nervous about  the result of their appeals.  But I do not consider that I shall be justified in reaching the conclusion that by the refusal, the  principles.  of natural justice were violated,  when  I notice that three other counsel were already briefed in  the appeals  and  one  of  them  had  argued  them  before   the Divisional  Bench,  I am thus of opinion that it  cannot  be held  that the principles of, natural justice were  violated so as to bring the judgment within the ban of el. (d) of  s. 13 of the Code. The  next  question is the composition of  the  Full  Bench, apart  from the conduct of the Judges.  Here, the  objection is  that  Balakrishniah, J., was incompetent to sit  on  the Bench  after his views already expressed in  his  dessenting Judgment.  Now, it is clear that the two learned Judges  who had  heard  the  appeals, had  differed  and  had  delivered separate judgments. It was contended that Balakrishniah,  J, was  incompetent  to make the reference, because  no  sooner Kandaswami  Pillai J., delivered his, than the  judgment  of the District Judge, with whom be agreed, stood confirmed  by virtue  of s. 98 of the Code of Civil Procedure in force  in Mysore State.  In other words, Balakrishniah, J., bad missed his  chance  to make a reference, ’because  he  had  already delivered his judgment and the other Judge having delivered his,  the  result  under the Code  follow.   The  action  of Balakrishniah, J., taken under a. 15(3) of the 138 Mysore High Court Regulation, 1884, was said to be too  late to  arrest the consequences of s. 98.  In my  opinion,  this argument  has  no substance whatever, and I  think  that  it would  not have been arguable if there was no  authority  to support  it.  I do not think it necessary to enter into  the niceties  of the question when is a judgment final, that  is to  say,  whether on pronouncement by the Judge  or  on  his signing  it.  The very interesting argument of  the  counsel for  the  sons of Ramalingam may be left to  be  decided  in abetter  case.   If the argument is accepted,  some  curious results will follow.  Either, Balakrishniah, J., had to make a reference without waiting for his brother Judge to deliver his  judgment or to lose his right because no sooner  Kanda- swami  Pillai,  J., read his judgment to the  And  than  the judgment of the District Judge would be confirmed.  In fact,

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whoever delivered the judgment first’ would lose his turn to make  a  reference.  It is obvious that  Balakrishniah,  J., would  wait  in  common courtesy for his  brother  Judge  to deliver  his  judgment  before making  the  reference.   The judgment  of  Balakrishniah,  J., ends  with  the  order  of reference  and ’-hen follows his signature.   What  happened really  does not appear from the record but is contained  in affidavits, which, to my mind, should not have been read  in this, connection.  It is obvious that the reference was made before  the  judgment was perfected by  the  signature.   No doubt, there is a rulling of the Allahabad High Court in Lal Singh v. Ghansham Singh (1), but the practice of the  Mysore High  Court was authoritatively established by a Full  Bench decision of that court in Nanjamma v. Lingappa (2).  In view of  the  cursus curiae thus laid down, the  Allahabad  view, even if right, cannot be applied.  In my opinion, the appeal stood properly referred to the Full Bench. (1) (1887) I.L.R. 9 All 625.  (2) (1949) 4 D.L.R.Mysore 118.  139 The  next  contention is that Balakrishniah J., @at  on  the Full  Bench after expressing his view on the merits  of  the appeals in a long and considered judgment.  It was contended that  this deprived the sons of Ramalingam was of  a  proper hearing before a Judge who had not made up his mind already. There  is considerable room for doubt on this point.   There have  been  several cases before, in which Judges  who  have made  a reference to a larger Bench have sat on  the  Bench, even though they had earlier expressed an opinion.  Some  of them  have also changed their views later.  Here again,  the practice  of  the Court must receive  some  attention.   The learned  Attorney-General drew our attention to three  cases of  the  Mysore  High Court in which precedents  are  to  be found.   He also drew our attention to oases from the  other High Courts in India and of some Courts abroad.  In some  of the foreign cases, judges have sat in a Bench hearing  case, after decision by them, in appeal or re-hearing.  Of course, one  need  not go so far as that in our country,  though  in cases  under el. 26 of the Letters Patent of  the  Chartered High  Court,  Judges who have presided over  Sessions  Trial have  sat at re-hearing after the certificate  of  Advocate- General.  Examples of both kinds of cases are to be found in the  Law Reports: See Emperor v. Fatehchand  Agarwalla  (1), Emperor  v. Barendra Kumar Ghose(2).  The learned  Attorney- General  drew our attention to the Encyclopedia of Laws  and precedents (1906) Vol, 23, p. 588 and American Jurisprudence (1958),  Vol. 30A, p. 76, para 187 and William Cramp &  Sons V.  International  Curtis Marine Purbine Co.(,,)and  Rex  v. Lovegrove  (4).  In some of the’ earliar cases the  practice was  quite common due to the smallness of number of  Judges: See,  for example, Rohilkhand & Kumaon Bank v. Row (5),  The Queen Empress v. Saminda Chetti (6), Seshadri (1)  (1917)I.L.R.44Cal.477. (2)  A.I.R. 1924 Cal. 257 . (3)  (1912) 57 L. Ed. 1003. (4)  [1951] 1 All.  E.R. 804. (5)  (1884) 6 All. 469. (6)  (1883).  I.L.R.7 Mad. 274. 140 Ayyangar v. Nataraja Ayyar (1).  There is no law to prohibit this,  and in a small Court with limited number  of  Judges, this may be unavoidable.  It is riot to be expected that  ad hoc  Judges would be appointed every time such  a  situation arises.   But  what  we have to guide ourselves  by  is  the practice obtaining in the Courts with which we are  dealing. If the practice there was common and inveterate no  litigant

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can  be said to apprehend reasonably that he would  not  got justice.   There are no less than four cases of  the  Mysore High  Court  in which a similar procedure was  followed,  in addition to those already cited.  In my opinion, in view  of the  strength. of the Court and the practice in  vogue,  the Judgment  of the Full Bench cannot, on the circumstance,  be described as against the principles. of natural justice. The next contention in support of the plea that the decision of  the Mysore High Court was coram non judice  and  against the principles of natural justice charges the learned  Chief Justice  and Balakrishniah, J., with unjudicial conduct  and prejudice and the former with interest in the executors.  It is  convenient  to take the allegations  against  the  Chief Justice and Balakrishniah, J., separately. As  regards the Chief Justice, it will be recalled  evidence was  allowed. to be led only on the question  of  dissuading Mr. Raju from appearing in the case.  But no direct evidence was led.  What transpired between the Cheif Justice and  Mr. Raju  (If something did transpire) could only be deposed  to by one of them.  None else was present at that meeting,  and neither was examined in the case.  Mr. Raju had by then been imprisoned after trial and conviction for an attempt on  the life   of   Chief  Justice,  and  was  not   available   for examination.  It seems (1) (1898) I L.R 21 Mad. 179. 141 that no serious effort was made to get his testimony, and it is   now  said  that  legal  difficulties’   prevented   his examination.   But  whatever the  difficulties,  the  record shows  that the sons of Ramalingam voluntarily gave up  Raju as a witness, and now it is too late for them to complain of ’legal difficulties.’ Nor can they for that reason make  the worse  appear  the better reason.  The other  also  gave  up Medappa C. J. Indirect evidence was, of course, sought to be led, but it does not help either party, and the party  which must  fail  must  obviously  be the  party  which  made  the allegation.   Here,  the  sons  of  Ramalingam  suffer  from another  disability.  Viswanathan himself wrote  letters  to say  that  the allegations were false, and were  made  under advice referring most probably to Mr. Raju.  No doubt  these admissions  were  sought  to  be  withdrawn  but  only  when confronted  with the letters, though Viswanathan, at  first, denied  their  existence.  The explanation  was  that  these letters  were written under the pressure of Wajid.  In  view of the basic fact that the allegation itself was not  proved by  evidence, it is pointless to decide whether the  letters were  written under undue pressure.  I can only say that  if Wajid’s evidence appeared to be untrue in part,  Viawanathan impressed  me even less.  The fight over the  dissuading  of Mr. Raju thus, at best, ended in a stalemate, if not  wholly against the sons of Ramalingam. Having  failed  to  establish  the  only  issue  which   was specifically  raised,  there was an attempt  to  revive  the allegations  on which evidence was not  allowed.   Reference was  made  in  this connection to certain  passages  in  the cross-examination of Wajid and the evidence of  Viswanathan. This was on the use of a car belonging to the estate by  Mr. Medappa  some years before, when he was the District  Judge. The foundation of 142 this allegation was in affidavits sworn by Viswanathan,  who seems  to have begun each day of bearing with an  affidavit. These  affidavits  were  denied by the  other  side  through Wajid’s  affidavits.  This vehement war of  affidavits  only resulted in the interested testimony of Viswanathan, on  the

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one  side, and Wajid, on the other.  The matter has thus  to be examined carefully.  The evidence was not related to  any specific issue, there being none raised in the caset.   Most of  the  evidence was in affidavits, which do no  appear  to have been ordered and could not, for that reason, be read as evidence, Such evidence as there was, was highly  interested and uncorroborated from any independent source.  The  affair was  extremely old even if true, to establish  an  interest, such as would disqualify a Judge from hearing the case.   In these  circumstances, it is evident that the  case  alleged, cannot be held to have been established. Next was the allegation of friendship between Medappa, C.J., and  A.  Wajid and Manaji Rao.  Manaji Rao faded out  as  an executor,  and  took hardly any interest in  his  duties  as such,  and cannot, therefore, be said to have been a  potent factor  to  interest  Medappa,  C.  J.  In  support  of  his allegation  that  Medappa, C. J., and A.  Wajid  were  great friends, Viswanathan swore a few affidavits.  A fairly  long affidavit (No. 440 of 1950) in the High Court was reproduced in  its  entirety by Ramaswami, J., in his  Judgment.   Some other  affidavits  were  sworn in this  Court  when  certain proceedings for a writ of prohibition were started, and they were  also  read  in the High Court and  were  read  to  us. Making a selection from these affidavits the allegations may be stated briefly as follows : Medappa, C. J., was the Chief Steward  of  the  Bangalore  Race Club  and  A.  Wajid,  his Secretary, that A. Wajid was visiting Medappa, C. J., at the latter’s  house when the probate case was going on and  that they  were  great friends.  It was also alleged  that  Chief Justice 143 Medappa’s  attitude  during the probate case  was  extremely hostile  to  the family, which was later  reflected  in  the judgment  of  that  case,  and  that  Medappa,  C.  J.,  was extremely  worth, when Viswanathan asked him not to  sit  on the  Full Bench and the Chief Justice forced Viswanathan  to disclose  the name of the counsel who had advised  the  move and  said that he would see what to do with him.  All  these allegations  were denied by A. Wajid both in affidavits  and in  his oral testimony.  Balakrishniah, J.,  was  questioned about what happened in the Court and gave evasive replies. The  rule of law about judicial conduct is as strict, as  it is old.  No Judge can be considered to be competent to  hear a case in which he is directly or indirectly interested.   A proved interest in a Judge not disqualifies him but  renders his  judgment  a  nullity.  There is  yet  another  rule  of judicial  conduct which bears upon the hearing of case.   In that,  the  Judge is expected to be serene  and  evenhanded, even though his patience may be sorely tried and the time of the  Court appear to be wasted.  This is based on the  maxim which is often repeated that justice should not only be done but should be seen to be done.  No litigant should leave the Court  feeling  reasonable that his case was  not  heard  or considered  on  its merit.  If he does, then  justice,  even though done in the case. fails in the doing of it. Can  we say that Medappa, C. J., was so interested as to  be disqualified, or that he acted in a manner that his  conduct in Court was a denial of justice ? Apart from the fact  that A.  Wajid denied familiarity, though not  acquaintance  with Medappa,  C. J., there are no instances of undue leaning  in favour  of  the executors.  What happened in  the  case  was engineered  by  Mr.  Raju, as  the  letters  of  Viswanathan himself suggested.  The family which 144 did  not  know  how to get on the right side  of  a  father,

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however obdurate, acted in much the same way with the Court. Their conduct on and from the announcement of the Full Bench was  calculated to exasperate and annoy any Judge, who  held his  own reputation dear.  Of course, the more  Medappa,  C. J.,  showed  irritation, the more Raju and his  clients  got publicity  value,  which  they hoped  to  exploit  with  the Maharajah.   In  My  opinion, the conduct  of  the  sons  of Visbwanathan was studied and designed to further their  move for a different Bench.  If we leave out of consideration the dissuading  of Raju, as to which also there is no  evidence, and the use of the estate car, about which also there is  no evidence,   there  remains  a  vague  allegation   of   deep friendship denied on the otherside and not proved  otherwise by  independent  evidence.   I  say  independent   evidence, because  the  evidence  of  Puttaraja  Urs,  J.,  about  the conversation between him and Medappa, C.J., about this  case cannot  be said to be disinterested because the witness  had his  own grievance against the Chief Justice, which  be  was ventilating  to all and sundry.  He even went to the  length of  reporting  to  the Chief Justice of  India.   I  am  not required  to  pronounce  upon  the  truth  or  otherwise  of Puttaraja Urs, J’s personal aspersions on Medappa, C.J., but is  it obvious that he cannot be regarded as a  witness  who can be trusted to have taken no sides.  That leaves only the fact that Medippa, C. J., had heard and decided the  probate case  against  the  family.  But I do not  think  that  this circumstance was enough to disqualify him from sitting on  a Bench  to hear a case in which more evidence has  been  led. This happens frequently in all Courts. The  same conclusion is also reached, when one examines  the allegations  about  the conduct of Balakrishniah,  J.  There too, the allegations are in, affidavits.  These  allegations are  that Balakrishniah., J., made hostile  remarks  against the case of the sons of Ramalingam, while hearing the appeal with 145 Kandaswami  Pillai, J. If every remark of a Judge made  from the  Bench is to be construed as indicating prejudice, I  am afraid most Judges will fail to pass the exacting test.   In the   course   of  arguments,   Judges   express   opinions, tentatively formed, sometimes even strongly ; but that  does not always mean that the case has been prejudged.  An  argu- ment  in Court can never be effective if the Judges  do  not sometimes  point  out  what appears to be  the  under  lying fallacy in the apparent plausibility thereof, and any lawyer or litigant, who forms an apprehension on that score, cannot be  said to be reasonably doing so.  It has frequently  been noticed  that  the  objection of a Judge breaks  down  on  a closer   examination,   and  often   enough,   some   Judges acknowledge publicly that they were mistaken.  Of course, if the Judge unreasonably obstructs the flow of an argument  or does  not allow it to be raised, it may be said  that  there has been no fair hearing. The remarks of Balakrishniah, J., which have been quoted  in the  case  do not bear that suggestion.  He seemed  to  have formed  opinions as the arguments proceeded, and if  he  had kept  them to himself, there would have been  no  complaint. It  is  because they were expressed that there is  one.   No doubt, he expressed his opinion in the judgment and then sat on the Full Bench.  But I have explained already that due to the retirement of Kanda, swami Pillai, J., the  incompetence of  one other learned Judge who had acted as a  lawyer,  the choice  was between him and Puttaraja Urs, J.  Perhaps  that would  have been equally objected to on the other  side,  as subsequent events disclosed.  In any case, there was to be a

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rehearing, and if the Chief Justice, included Balakrishniah, J.,  following the inveterate practice of his Court,  it  is too  much to say that the judgment was Coram non judice,  or the  principles  of  natural  justice  were  violated.   The further contention that Balakrishniah, J., had 146 rendered  himself a witness because the terms of  compromise were  discussed  before him’ loses all significance  in  the face of the order that the compromise, if any, could not  be recorded in the interest of the estate. On  a review of these allegations, I am not  satisfied  that the  sons  of Ramalingam have made an acceptable  case.   It cannot,  therefore, be said that cls. (a) and (d) of  S.  13 are  applicable,  and that the judgment of the  Mysore  Full Bench is not conclusive.  I should not be taken to hold  the view  that  the hearing was without incident,  or  that  the conduct of these two Judges was always correct.  But all the facts  are  overlaid with exaggeration and perjury,  and  no definite  conclusion can be reached.  I am,  however,  quite clear  that the evidence falls far short of that  degree  of proof which would entitle another Court to say of a  foreign judgment  that it was coram non judice or that it  had  been rendered violating the principles of natural justice. I  shall next consider the competence of the  Mysore  Courts and the extent of the conclusiveness of the judgment of  the Full  Bench under a. 13 of the Code of Civil Procedure.   To decide  them points, it is  necessary to examine  critically the pleas in the cases in the Mysore Courts and the decision on  those pleas.  In so far as the decision is concerned,  I shall confine myself to the judgment of the Full Bench,  for its  is  only the final judgment, which  can  be  considered conclusive. The  suits  were filed on identical pleas.  Two  suits  were necessary,   because  the  property  was  situated  in   the jurisdiction  of two different Courts.  In any  event,  both the  suits were consolidated after the return of  the  Civil and  Military Station to the’ Mysore State.  The suits  were filed for declaration that the properties were joint family                             147 properties,  that Ramalingam had no right to dispose of  the same by a will, and for possession and accounts.  As against this,  the executors had contended that the properties  were self  acquired.   The  basis of the claim  of  the  sons  of Ramalingam was contained in the following paragraph :               "The  said  V. Ramalinga  Mudaliar  came  into               possession of movable and immovable properties               including  some houses in Arunachala  Mudaliar               Road,  Civil and Military Station,  Bangalore,               which had belonged to his father,  Vaidyalinga               Mudaliar.  The said properties were sold of by               Ramalinga Mudaliar and the sale-proceeds  were               invested  in several businesses.  In or  about               the    year   1928   the    first    plaintiff               (Vishwanathan)    joined   his   father    and               actively   assisted   him   in   the   several               businesses of the family.  Apart from the fact               that there was a nucleus of ancestral property               with which the businesses were carried on, the               plaintiff submit that the adult members of the               family, viz., the first plaintiff and late Mr.               V. Ramalinga Mudaliar were actively associated               with  the family businesses and that  all  the               properties were treated by Ramalinga  Mudaliar               as family properties." In dealing with the’ case, the Full Bench gave the following

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findings :               (1)That  Vaidyalinga Mudaliar who was away  In               Shimoga   and  Mysore  working   as   District               Sheristadar   had  nothing  to  do  with   the               contract  business  at the  Kolar  Gold  Field               Mines;               (2)That  Shanmuga  borrowed  Rs.  2000/  on  a               pronote,  in which his father joined,  from  a               Bank and did business with it successfully;               148               (3)   That   this   money  was   returned   by               Shanmuga to his father ;               (4)   That the other brothers, acknowledged in               writing that they had no title or interest  in               the  business of Shanmuga which were his  self               acquisitions ;               (5)That   Ramalingam  joined  Shanmuga  as   a               partner and later brought out his interest;               (6)That   Ramalingam   did   not   come   into               possession  of  any movable  property  of  his               father ;               (7)That  even  if Ramalingam sold  the  houses               left  to  him  by the  father  they  were  his               exclusive  properties  bequeathed  to  him  by               Vaidyalingam whose self-acquisitions they were               (8)That  the claim of the sons  of  Ramalingam               that the properties were acquired with the aid               of  the  joint family nucleus  and  that  were               joint family properties was disproved. In the result, it was that the business and possessions were not  of those of a joint family but the separate  properties of Ramalingam. The  question  whether  these finding or  any  of  them  are conclusive  in the subsequent litigation in Madras has  been raised  in connection with the 18366 shares of  the  Indian Sugars  and Refineries Ltd., by the sons of Ramalingam,  who seek  to  avoid the Mysore judgment and in  respect  of  the immovable property in Madras by the executors who claim  the benefit  of  the  same  under a. 13 of  the  Code  of  Civil Procedure.    Though   the  question  is   mainly   one   of interpretation  of s. 13, the arguments were  reinforced  by reference  to Books on Private International Law  and  cases decided by English Courts.  149 The  law  as contained in s. 13 has been the  result  of  an evolution.  In the Code of Civil Procedure 1887, the subject of foreign judgments was a part of the law of res  judicata. It was enacted in s. 14 that,               "No foreign judgment shall operate as a bar to               a suit in British India-               (a)   if  it has not been given on the  merits               of the case ;               (b)   if  it appears on the face of  the  pro-               ceedings to be founded on an incorrect view of               international  law  or  any law  in  force  in                             British India;               (c)   if  it  is in the opinion  of  the-Court               before  which  it  is  produced  contrary   to               natural justice ;               (d)   if it has been obtained by fraud;               (e)   if  it  sustains a claim  founded  on  a               breach of any law in force in British India." That  the section was to take its colour from the  preceding section  (13) which dealt with res judicata is made  obvious by the Vlth Explanation to the latter section, which read :

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             "Where  a foreign judgment is relied  on,  the               production of the judgment duly  authenticated               is  presumtive evidence that the  Court  which               made it had competent jurisdiction, unless the               contrary  appears  on  the  record  but   such               "’presumption  may be removed by  proving  the               want of’ ’jurisdiction." There  was  one other section (s. 12), which laid  down  the circumstances  for  the application of the doctrine  of  Lis Alibi Pendens, with which we are not concerned. 150 In  the Code of 1882, an Explanation was added to s.  14  by Act VII of 1888 (s. 5) that the Courts in British India must examine,  in  a  suit based on a  foreign  judgment  of  any foreign Court in Asia and Africa excepting a Court of Record established  by  Letters  Patent  of  Her  Majesty  or   any predecessor  of  Her  Majesty or a  Supreme  Consular  Court established  by  an  Order of Her Majesty  in  Council)  the merits  of that judgment when it was pleaded as a bar  in  a suit  before the British Indian Courts.  This was  obviously done to prevent the judgments of the Courts of Indian States to  be  placed on an equal footing with  those  in  European Countries.   The Governor-General in Council  was,  however, given the power to declare which Courts in the Indian States could  have  their decrees executed in British India  as  if they  were decrees passed by a British Indian  Court.   Some Indian  States  were so declared, and it is  interesting  to know that Mysore State was one of them. In  the Code of 1908, with which we are concerned,  the  ban against the judgments of Indian States was removed and s. 14 was  re-enacted  as  a.  13,  and  Explanation  VI  was  re- enacted with slight modifications of language as s. 14.  The change between the old a. 14 which worded in a negative  way and  s.  13,  which  states  affirmatively  that  a  foreign judgment shall be conclusive is significant, and lies in the fact that during this time there was a corresponding advance in  the  theories of Private International law  in  England. But  this much is evident that in dealing with the  question of  foreign judgments in India, we have to be guided by  the law  as  codified  in  our Country.   That  law  attaches  a presumption  (though  rebuttable) of the competency  of  the Court,  which pronounced the foreign judgment.  It makes  it (a)  conclusive  (b)  as  to  any  matter  thereby  directly adjudicated between the same  151 parties  or between parties under whom they or any  of  them claim  litigating  under  the same  title.   The  conditions precedent  are contained in six clauses of which  the  first clause is that it must be pronounced by a Court of competent jurisdiction. It  may be mentioned at this stage that s. 41 of the  Indian Evidence Act provides that a final judgment, order or decree of   a   competent  Court  in  the  exercise   of   probate, matrimonial, admiralty or insolvency jurisdictions shall  be relevant  and  also  conclusive proof as  to  certain  legal character.   The, contention on behalf of the executors  has been  that  s. 41 of the Indian Evidence  Act  provides  the rules for judgments in rem, while s. 13 of the Code of Civil Procedure  provides for judgments in personam and  the  only judgments  in  rem are those mentioned in s.  41.   To  this argument, I shall come later. The first point to decide is whether the Mysore Courts  were competent  to  decide the controversy  which  they  decided. What is meant by competency can be looked at from two points of  view.,  There  is the internal  competency  of  a  court

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depending  upon the procedural rules of the law’  applicable to  that Court in the State to which it belongs.   There  is also  its competency in the eye of international  law.   The competency  in  the international sense  means  jurisdiction over subject-matter of the controversy and jurisdiction over the  parties  as recognised by rules of  international  law. What  is meant by competency in this context was  stated  by Blackburn,  J.,  speaking for-the Judges in  answer  to  the question  referred  by the House of Lords  in  Castrique  v. Imrie  (1).   Relying upon Story is Conflict  of  Laws,  the learned Judge observed:               "We may observe that the words as to an action               being  in rem or in personam, and  the  common               statement that the one its binding on               (i)   (1870) L.R. 4. L. 414.               152               third persona and the other not, are apt to be               used by English lawyers without attaching  any               very  definite meaning to those  phrases.   We               apprehend  the  true  principle  to  be   that               indicated  in the last few words  quoted  from               Story.   We  think  the  inquiry  is,   first,               whether the subject-matter was so situated  as               to  be within the lawful control of the  State               under  the authority of which the Court  sits;               and secondly, whether the sovereign  authority               of  that  State  has conferred  on  the  Court               jurisdiction  to decide as to the  disposition               of  the thing, and the Court has acted  within               its  jurisdiction.   If these  conditions  are               fulfilled,  the  adjudication  is   conclusive               against all the world." Story’s  exact  words are to be found in para.  586  of  his Book, and this is what the learned author said:               "In order however to found a proper ground  of               recognition of any foreign judgment in another               country, it is indispensable to establish that               the  Court pronouncing judgment should have  a               lawful  jurisdiction over the cause, over  the               thing,   and   over  the  parties.    If   the               jurisdiction  fails  as  to  either  it  is...               treated  as a mere nullity, having no  obliga-               tion,  and entitled to no respect  beyond  the               demestic  tribunals.   And  this  is   equally               true,,  whether the proceedings lie in rem  or               in personam or in rem and also in personam". The  opinion expressed by Story here is, in its turn,  based on that of Boullernois in his Traite, et de la  Personnalite et  de la Realite des Lois Coutumes ou Status,  (1766)  Vol. I, pp. 618-620. The  law  stated  by Blackburn,  J.,  has  been  universally accepted by all the Courts in the English speaking countries and it was quoted with 153 approval recently by the Privy Council in Ingenohl v.  Wingh On & Co. (1)  No distinction in approach to the question  of competence  ’is made between cases in rem and  in  personam. In Pemberton v. Hughes (2).  Lindley, M. R., stated the  law relating to competency to be this:               "Where  no substantial justice,  according  to               English  notions,  is offended, all  that  the               English courts look to is the finality of  the               judgment and the jurisdiction of the court, in               this  sense  and to  this  extent-namely,  its               competence  to  entertain the  sort  of  case-

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             which it did deal with, and its competence, to               require the defendant to appear before it.  If               the  court had jurisdiction in this sense  and               to  this  extent, the courts of  this  country               never  enquire  whether the  jurisdiction  has               been   properly   or   improperly   exercised,               provided always that no substantial injustice,               according   to  English  notions,   has   been               committed.               There  is  no doubt that the  courts  of  this               country  will  not enforce the,  decisions  of               foreign  courts which have no jurisdiction  in               the  sense.  above  explained-i.e.,  over  the               subject-matter  or  over the  persons  brought               before  them:  Schibsby  v.  Westenholz   (3):               Rousillon   v.   Rousillon  (4);   "Price   v.               Dewhurst(5)  Buchanan  v.  Rucher  (6)  Sirdar               Gurdyal Singh v. Rajah of Faridkote (7).   But               the  jurisdiction which aline is important  in               these  matters is the competence of the  Court               in    an   inter-national   sense-i.e.,    its               territorial competence over the subject-matter               and  over  the defendant.  Its  Competence  or               jurisdiction   in  any  other  sense  is   not               regarded as material by the courts of               (1)   A.I.R. 1928 P.C. 83.               (2)   (1899)1 Ch. 781.               (3)   (1870) L R 6 Q.B. 155.               (5) (1838) 4 My.  Cr. 76.               (4)   1883) 4 Ch.  D. 351.               (6)   (1808) 9 Est. 192.               (7) [1894] A.C.670.               154               this  country.   This is pointed  out  by  Mr.               Westlake  (International Law, 3rd ed. s.  328)               and  by  Foote (Private  International  Juris-               prudence, 2nd ed. p. 547), and is  illustrated               by Vancuelin v. Bouard (1)...               It may be safely said that, in the opinion  of               writers   on   international   purposes,   the               jurisdiction or the competency of a Court does               not  depend upon the exact observance  of  its               own rules of procedure...               A   judgment  of  a foreign   court   having               jurisdiction  over  the  parties  and  subject               matter-i.e.,  having  jurisdiction  to  summon               defendant before it and to decide such matters               as it has decided-cannot be impeached in  this               country on its merits: Castrique v. Imprie (2)               (in  rem); Godard v. Gray (3)  (in  personam);               Messine  v. Petrococchino (4)  (in  personam).               It is quite inconsistent with those cases  and               also with Vanquelin v. Bouard (1) to hold that               such  a judgment can be impeached here  for  a               mere error in procedure.  And in Castrique  v.               Imprie (2) Lord Colonsay said that no  inquiry               on such a matter should be made." The dictum of Lindley, M. R., goes a bit too far in reducing internal  want of jurisdiction to nothing.  It may  be  that the  judgment of the foreign Court may be a nullity, and  it would be too much to say that full faith should be given  to such  a judgment.  Indeed, in England,: this part of  dictum was  not  applied; Papdopoulos v.  Papadopoulas  (5).   That apart,  in my opinion, the above passage’ admirably sums  up the law connected with the competency of the foreign  Court.

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Mere   irregularities  of  procedure  in  the  exercise   of jurisdiction by (1)  (1863) 15 C.B. (N.S.) 341. (2)  (1870) L.R. 4 H.L. 414. (3)  (1870) L.R.6 Q. B. 139. (4)  (1872) L.R. 4 P.C. 144. (5)  [1930] P. 55. 155 the foreign Court are not enough: See Ashbury v. Ellis  (1); but  a  total want of internal jurisdiction may have  to  be noticed if pleaded in answer to the foreign judgment.  There is  no real difference in so far as competency goes  between actions in rem and actions in personam.  In some actions  in personam, the necessity of jurisdiction over any  particular thing  may  not  arise.   This  is  always  necessary   inri judgments  in rem relating to immovable  property.   Besides this a judgment in personam binds only the parties, while  a judgment  in  rem  seeks to bind  others  also.   Thus,  the objection  to  the jurisdiction of the Court  in  a  foreign country on other than international considerations, must  be raised  in  that country.  This is settled in  Vanquelin  v. Bouard (2).  Objections to it internationally can be  raised in the Court in which the judgment is produced.  But even if the  objection  to the jurisdiction be raised in  the  Court where the judgment is produced, that Court will consider  in actions  in rem whether the foreign Court  had  jurisdiction over  the  subject-matter  and the  defendant  and  also  in actions in personam, whether the jurisdiction was  possessed over  the subject-matter and the parties.  In  the  approach there is no difference.  In the latter class, of cases,  the English Courts consider the defendant bound where: -               (1)   he is the subject of the foreign country               in which the judgment has been obtained:               (2)   he  was resident in the foreign  country               when the action began;               (3)   he, in the character of’ plaintiff,  has               selected  the forum in which he is  afterwards               sued;               (1)  [1893] A.C. 319, 344.  (2) (1863) 15  C.B               (N.S.) 341.               156               (4)   he has voluntarily appeared ;               (5)   he  has contracted to submit himself  to               the forum in which the judgment was obtained. I  leave out the sixth ground added by Becquet v.  MacCarthy (1),  as it has not been universally endorsed and  has  been said to go to the verge of the law. In   addition  to  these,  the  English  Courts  take   into consideration the conduct of the party raising the objection against the foreign judgment.  If he, has plaintiff, invoked the jurisdiction of the foreign Court, he cannot be  allowed to   complain  against  the  judgment  on  the   ground   of competence.   This  was  laid down in very  clear  terms  by Blackburn, J., in Schisby v. Westenholz (2) as follows :               "Again we think it clear, upon principle, that               if  a person selected, as plaintiff, the  tri-               bunal of a foreign country as the one in which               he would sue, he could not afterwards say that               the judgment of that tribunal was not  binding               upon him." The  contrary  case  is  General  Steam  Navigation  Co.  v. Guillon(3), where the conduct of the defendant was not  held binding.   Recently,  in Harris v. Tayalor  (4),  appearance conditionally by a defendant in a foreign Court to object to jurisdiction was considered not to be the sort of conduct to

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bind him, but in Travers v. Holky(5), Donning, L, J. (as  he then was), has made certain obiter remarks against the  last case.   Since  I  am not concerned with  the  conduct  of  a defendant before a foreign Court but’ that of a plaintiff, I need not refer to these cases in detail. (1) (1831) 2B. & Ad.951.      (2) (1870) L. R. 6 Q. B 155, (3) (1843) 11 M. & W. 877. 894. (4) [1915] 2 K.B. 580. (5)  [1953] P. 246. 157 Applying  these tests to find out if the Mysore Courts  were competent  to  deal  with  the  case  both  internally   and internationally,  it is clear that they were.The subject  of the controversy was the status     of Ramalingam, a  subject and resident of Mysore   State.   His  will  made  in   that jurisdiction  was admitted to probate there.  His  sons  and other  relatives who figured as parties and those  in  poss- ession  of  the property were in that State.   The  property which  was the subject of dispute, including the Kolar  Gold Fields business situated in Mysore State, but excluding  the shares in the Indian Sugars and Refineries Ltd., (Which  are disputed as to their situs) was also in Mysore.  The sons of Ramalingam  themselves commenced the two suits  and  invoked the  jurisdiction of the Mysore Courts.  They  claimed  that the  Kolar Gold Fields business belonged to a  joint  family and  not  to Ramalingam alone.  They in fact,  succeeded  at first, but lost on appeal.  In view of these  considerations and applying the dicta of Blackburn, J., and Lindley, M. R., the  conclusion is inescapable that the Mysore  Courts  were competent internally as well as inter. nationally to  decide about  the status of Ramalingam and the rights to or in  the Kolar  Gold Fields business between these very parties.   It may be mentioned here that the competence is to be judged in relation  to the subject matter of the suit in  the  foreign Court and not in relation to the subject matter of the  suit in  another  country  where the judgment  is  produced.   Ex facie, the Mysore Court exercised no jurisdiction in respect of  the properties in Madras.  They were never the  subject- matter of the Mysore suits and that subject-matter is wholly irrelevant  when  considering the competency of  the  Mysore Court.   What  has  to be considered is the  effect  of  the Mysore judgment upon the litigation in Madras in view of  s. 13  of the (.’)ode. If, then, the Mysore Courts were  Courts of competent jurisdiction, the Question, is how far are the 158 judgments  conclusive.   The properties, with which  we  are concerned,  are the 16,000 odd shares of the  Indian  Sugars and Refineries Ltd., and the immovable properties in Madras. The executors claim that it) respect of the shares there  is a decision between the parties and in respect of the  immov- able  property, no question of status of Ramalingam  or  the ownership   of  the  Kolar  Gold  Fields  business  can   be reconsidered in view of the Mysore judgment while the  other side seeks to avoid the judgment altogether. Numerous  cases from English Law Reports and  some  standard text-books  on the subject of Private International Law  or, as  it is sometimes called, the Conflict of law, were  cited in  support by the rival parties.  It may. however, be  said at the start that the treatment’ of the subject in India  is somewhat  different from that in England.  In  our  country, the binding force of a judgment arises partly from adjective law and partly from the law of evidence.  The Subject of res judicata,  which  is based upon a rule of public  policy  as expressed  in Coke on Littleton as interest rei publicae  ut sit finis litium is mainly to be found in the Code of  Civil Procedure, while the evidentiary value of Judgments is dealt

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with in the Indian Evidence Act.  In England, the subject of res  judicata  is mainly dealt with as part of  the  law  of evidence,  and  a  former  judgment is  said  to  create  an estoppel  by record.  The subject of the  conclusiveness  of foreign  judgments  is  dealt with in India in  the  law  of procedure,  while in England it is dealt with as a  part  of Private International Law.  This law is not to be taken as a kind of law binding upon the States of the world arising out of  a  communis comsensus of the States.  There is  no  such consensus,  though  reciprocal  laws  exist.   Each  Country decides  for  itself how far the foreign judgments  will  be received.  A foreign  159 judgment receives different treatment in different parts  of the   world.   Apart  from  reciprocity  between   different Countries which have agreed to be Mutually bound, there  are numerous  approaches  to the problem.   In  some  Countries, direct  enforcement of such judgments, if registered in  the Country of origin, is permitted in the same way as in ss’ 44 and  44A  of our Code of Civil Procedure.   In  others,  the judgments (unless reciprocal agreements exist) must be  sued upon.   There too, the question arises whether the  original cause  of  action  merges in the  judgment-transitu  in  rem judicature, or survives.  In some Countries like France, the judgment of a foreign Court is subjected to scrutiny,  while in some of the Nordic Countries, the judgment has no  value. In Tallack v. Tallack (1) jurisdiction was refused,  because the  judgment of the English Court would not have bound  the parties  in the foreign Country.  Numerous rules  have  been evolved  in  England  and the  English  speaking  Countries, mainly by Judges, which show the extent to and the  conditi- ons under which the judgments is received.  In America,  the Restatement has done much to simplify the subject, but  even so, it has proved inadequate.  The subject has been made  so complicated  that  one learned author has been  provoked  to say.               "In one respect the law of Conflict of Laws is               nothing  but an unmitigated nuisance,  serving               no useful purpose whatever." (Leflar The  Law               of   Conflict  of  Laws  (1959)  para   8   of               Introduction). The  salient  point  of English law on the  subject  may  be stated  to be that all judgments are divided into two  broad categories-judgments in rem and, judgments in personam.  The best defin- (1)  (1927) P. 211. 160 defitions of these terms tire to be found in Halsbury’s Laws of England, Vol. 22, p. 742, para 1605, which reads: .lm15      "A judgment in rem may be defined as    the judgment of a court of competent jurisdiction determining the status  of a  person  or  thing,  or the disposition  of  a  thing,  as distinct  from the particular interest in it of a  party  to the  litigation.   A  judgment in  personam  determines  the rights  of the parties inter se to or in the subject  matter in  dispute,  whether it be corporeal property of  any  kind whatever,  or a liquidated or unliquidated demand, but  does not  affect the status of either persons or things, or  make any  disposition  of property, or declare or  determine  any interest  in  it except as between  the  parties  litigants. Judgments  in personam include all judgments which  are  not judgments in rem but, as many judgments in the latter  class deal  with  the  status of persons and not  of  things,  the description  ’judgments  inter  partes’  is  preferable   to

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’judgment in personam’. The  definition  of Halsbury is merely a  restatement  of  a definition  given  by Bowers, and it has been  accepted  and applied  by  Evershed, M. R., in Lazarus-Barlow  v.  Regents Estates  Co.  Ltd.  (1).  Such judgments,  says  Phipson  on Evidence,  8th  Edn., p.401, are conclusive in the  case  of judgments in rem against parties or their privies or  stran- gers, and in the case of judgments in personam, against  the parties  and their privies only.  In the matter  of  foreign judgments, the rule about judgments in rem has been somewhat reduced  in  its  extent in one direction  and  extended  in another in recent years in England.  In the matter of (1)  (1949) 2 K.B. 465, 475. 161 status’ it has been extended to give more and more faith  to foreign  decrees  but in the other direction,  it  has  been curtailed.   In  respect  of things  and  determinations  of rights  or title to things (excluding immovable property  as to  which I shall say something later) judgments in rem  are now  confined  to Admiralty actions.  There is,  however,  a remnant in respect of movables, which is represented in  the three rules of Westlake (a. 149) which are:               (a)   judgments  which  immediately  vest  the               property  in a certain person as  against  the               whole world;               (b)   judgments  which  decree the sale  of  a               thing  in satisfaction of a claim against  the               thing itself; and               (c)   judgments  which  order movables  to  be               sold by way of administration. This distinction is summed up by Holmes, C. J., in Tyler  v. Judges of the Court of Registration as follows:                "  If the technical object of the suit is  to               establish  a  claim  against  Some  particular               person,  with  a judgment which  generally  in               theory,  at  least binds his body, or  to  bar               some  individual claim or objection,  so  that               only certain persons are entitled to be  heard               in  defence,  the  action  is  in   personam.,               although  it  may  concern the  right  to,  or               possession of a tangible thing......... If  on               the   other   hand  the  object  is   to   bar               indifferently all who might be minded to  make               an  objection  of any sort against  the  right               sought to be established and if any one in the               world has a right to be heard on the  strength               of  alleging  facts  which, if  true  show  an               inconsistent interest, the               (1)   (1900) 175Mass.71.               162               proceeding    is   in   rem............    All               proceedings,  like  all  rights,  are   really               against persons.  Whether they are proceedings               or  rights  in rem depends on  the  number  of               persons   affected."  (   Cheatham-Cases   and               Materials on Conflict of Laws, p. 168). This classic exposition, which has evoked. the admiration of every  text-book  writer  and  also  the  Privy  Council  in Ingenohl v. Wing On & Co. (1) sums up in an admirable manner the distinction between the two kinds of judgments. I  shall now follow up and analyse the application of  these principles  in England and America where the law  is  almost the same, and then show how the subject has been treated  in the  India Statutes.  In dealing with this subject, I  shall not  enter  upon  two subjects.   They  are  the  reciprocal

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arrangements  and  Arbitral awards, which  are  two  classes apart.   The  first condition of recognition  of  a  foreign judgment  is, of course, the competency of a foreign  Court, about which I have said much already.  The next condition is the  absence  of  fraud of collusion.   Further  still,  the judgment  which  is propounded must not  offend  the  public policy  of  English  law, or must not  be  contrary  to  the principles of natural justice.  Barring these, the judgments of foreign Courts are received in actions based on them  and given  effect  to  under  certain  conditions  arising  from whether  they  are  in rem or in  personam.   I  have  shown already  that the judgments in rem are concerned  with  res. But  the  word "res" is given a very  large  meaning.   Lord Dunedin  in Salvesan v. Administrator of  Austrian  Property (2) observed :               "The other point on which I want to say a  few               words is the question of what is a judg-               (1) A.I.R. 1928 P.C. 83.               (2) (1927) A.C. 641, 662.               163               ment  in rem.  All are agreed that a  judgment               of divorce is a judgment in rem, but the whole               argument  of  the  judges  in  the  Court   of               Sessions  turns  on  the  distinction  between               divorce  and nullity.  The first remark to  be               made  is that neither marriage nor the  status               of  marriage  is, in the strict sense  of  the               word,  a  res, as that word is  used  when  we               speak  of  a judg, ment in rem.  A  res  is  a               tangible thing within the jurisdiction of  the               Court,  such  as a ship or other  chattel.   A               metaphysical idea, which is what the status of               marriage  is,  not strictly a res, but it,  to               borrow a phrase, savors of a res, and has  all               along been treated as such.  Now, the  learned               Judges  make this distinction.  They say  that               in an action of divorce you have to do with  a               res, to wit, the status of marriage, but  that               in an action of nullity there is no status  of               marriage  to be dealt with, and  therefore  Do               res.  Now it seems to me that celibacy is just               as much as status as marriage." See also the observations of Lord Haldane at pp. 652-653.               Commenting upon that case, Cheshire (op.  Cit.               8UP) says at p. 657:               "Thus  the  word res as used in  this  context               includes  those human relationships,  such  as               marriage,  which  do not originate  merely  in               contract,  but  which constitute what  may  be               called institutions recognised by the State." In  the same way, adoptions in foreign Countries which  were not  recognised  in  England  at  one  time  are  now  being recognised.  See Dicey’s Conflict of Laws, 7th Edn., p. 460, particularly p. 461, where Dicey’s Original view is shown to be obsolete.  The subject of adoption is being treated 164 as  in  pari materia with  legitimation.   Cheshire’s  views expressed in his book (pp. 442-443) show that on the analogy of  a  case like In re Goodman’s Trusts (1) they  are  being equated.  Cheshire then observes in forceful language:               "The  genius and expansion of the  common  law               would  indeed wither away if  the  traditional               practice were to be abandoned of applying  the               principles already established for one type of               case to another type substantially similar  in

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             nature." He then concludes; that the existence of Y’s status as fixed by  the  law of the domicile common to him and  his  adopter must  on  principle be recognised in England.   In  England, judgments in personam which are ancillary to such  judgments in rem were considered binding at one time, see Phillips  v. Batho (2 ); but the view has since changed somewhat. As   regards  the  extent  of  conclusiveness   of   foreign judgments,  the subject again gets divided into two  parts. Judgments   in   rem,   according  to   Foote   on   Private International Law, 5th Edn., p. 625, are received in respect of any matter decided by them.  The following passage  gives his views:               "Accepting   then,  as  incontrovertible   the               principle  that a foreign judgment in  rem  is               conclusive  in  all  Courts  and  against  ail               parties,  it remains to consider to  what  its               conclusiveness has been held to extend.  As to               the  fact directly adjudicated upon there  can               be no doubt; but there is often difficulty  in               applying the principle to facts  inferentially               decided, as well as to the grounds,  expressed               or  implied,  of the  foreign  decision.   The               safest  expression of the English law  on  the               subject appears to be that the truth of  every               fact,               (1) (1881) 17 C.H.D. 266.               (2) (1913) 3 K.B. 992.               165               which  the foreign Court has found, either  as               part of its, actual adjudication or as one  of               the  stated grounds of that decision, must  be               taken to be conclusively established." He,  however, adds that the foreign Court will not be  taken as  having established any fact which it has  not  expressly found  as  laid down in the judgment relied  on.   Short  of this, not only the actual decree but every adjudicative fact is treated as conclusively decided.  Rattigan in his Private International, Law at p. 268 observes:               "This  conclusiveness  extends to  every  fact               which  the foreign Court has found, either  as               part  of its actual adjudication or as one  of               the stated grounds of its decision." Dicey  in his Conflict of Law, 7th Edn. (Rule  183)  ,states the law in concise form:               "A  foreign judgments is conclusive as to  any               matter thereby adjudicated upon and cannot  be               impeached for any error either.               (1)of fact               (2)or of law". In so far asjudgment  in. personam are concerned, any  of the matters decided inter partes are binding on the  parties and privies, though not on strangers.  This follows from the rule  now  firmly grounded that a foreign judgment  well  be examined from the point of view of competence but not of its errors,  subject,  of  course,  to  there  being  no  fraud, collusion,  breach of the principles of, natural justice  or of  public policy of England or a wrong apprehension of  the law  of  England,  if  that  law  be  involved.   From   the conclusiveness ’of foreign decrees, it. may be said 166 here  that  the penal laws of another Country  or  judgments involving  a penal decree are excluded.  It is customary  to quote Chief Justice Marshall’s famous dictum in the Antelope (1):  ’,The Courts of no country execute the penal  laws  of

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another."  The same is the position of decrees, orders  or judgments in matters of taxation and penalties under  taxing laws.  The American Courts follow in these respects the  law in  England,  and Goodrich in his Conflict of Law,  p.  603, sums up the American approach in one pithy sentence : "A  valid foreign judgments should be recognized  and  given effect  in another State as a’ conclusive  determination  of the  rights  and obligations of the parties.   This  is  the modern doctrine." He adds further: "On  principle, the foreign judgment should  be  conclusive. The judgment has determined that, under the law of the State where it was rendered, the plaintiff has or has not  certain rights,  and that the defendant is or is not  under  certain corresponding   legal   obligations.    Those   rights   and obligations  exist  in  the State  where  the  judgment  was rendered  so  long as the judgment remains in  force.   When such a judgment is presented for recognition and enforcement in  another State, it ought to be treated no less  favorably than any suit founded upon foreign operative facts." Indeed,  there  is  now a liberal  approach  in  respect  of immovable  property  outside the jurisdiction.  At  p.  217, Goodrich  has  cited  instances of  recognition  of  foreign judgments  in respect of matters which, normally, would  not come within the jurisdiction of the Court.  He says : (1)  (18225) 10 MI eat If, 123. 6 L. Ed. 268.  167               Plaintiff  asks defendant, who is  before  the               Court, be compelled to execute in  plaintiff’s               favour a conveyance of land which lies outside               the   State.    Is   there   any   defect   in               ’jurisdiction  because the land is in  another               State?   It is clear that the Court could  not               make its decree operate directly to convey the               land  nor  could it  effectively  authorize  a               master  appointed  by the Court  to  make  the               decree if the defendant were unable or unwill-               ing  to do it.  "But if, at the situs  of  the               land   a  deed  executed  elsewhere   will   be               recognized  as effective, the Court may  order               defendant, who is before it, to execute a deed               conveying  the  land.   This  power  has  been               exercised by the Court even since the time  of               the   historic  litigation  between  Penn   v.               Baltimore   (1),   and   is   recognized    in               innumerable decisions." The  same views have been expressed by Stumberg in  Conflict of  Laws  (2nd Edn.), p. 69, Nussbaum in his  Principles  of International Law (1943), op. 299, 235 and others. In  India,  the  law as to conclusiveness  of  judgments  is contained in ss. 40-44 of the India Evidence Act and ss, 11- 14 of the Code of Civil Procedure.  Section 41 of the former makes  certain special kinds of judgments conclusive,  while s.  11  makes judgments in India and s.  13  makes  foreign judgments  conclusive  under certain  conditions.   I  shall first  analyse  the  sections in the  Indian  Evidence  Act. Section  40 makes the existence of a judgment ete. which  by law prevents any Court from taking cognisances of a suit  or holding  a  trial,  a relevant fact when  the  question  is. whether such Court ought to take cognisance of such suit  or hold  such  trial.  This enables a judgment, order  or  dec- ree, whether of a Court in India or a foreign Court, (1)  (1750) 1 Ves Sen. 444. 168 to  be  propounded  for the  particular  purpose  mentioned.

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Section  42  next mentions that judgments  etc.  other  than those  mentioned  in a. 41, are relevant if  they  relate  a matters  of public nature relevant to the enquiry, but  such judgments,  etc.,  are  not conclusive proof  of  what  they state.  The illustration shows what is meant by matters of a public  nature.   Section 43 then lays down  that  judgments etc.,  other than those mentioned in as. 40, 41 and 42,  are irrelevant unless the existence of such judgments etc., is a fact  in issue or is relevant under some other provision  of the Evidence Act.  Section 44 says lastly that any party  to a suit or other proceeding may show that any judgment  etc., which is relevant under as. 40, 41 or 42 and which has  been proved  by  the adverse party was delivered by a  Court  not competent  to  deliver  it  or  was  obtained  by  fraud  or collusion.   Section  41  which I  left  out,  provides  for relevancy  of  certain  kinds  of  judgment  and  for  their conclusiveness.  It reads :               "A  final  judgment,  order  or  decree  of  a               competent  Court, in the exercise of  probate,               matrimonial,  admiralty or  insolvency  juris-               diction, which confers upon or takes away from               any  person  any  legal  character,  or  which               declares any person to be entitled to any such               character,  or to be entitled to any  specific               thing, not as against any specified person but               absolutely, is relevant when the existence  of               any such legal character, or the title of  any               such  person  to any such thing  is  relevant.               Such  judgment, order or decree is  conclusive                             proof-               that  any  legal character which  it  confers,               accrued at the time when such judgment,  order               or decree came into operation :               that any legal character to which, it declares               any such person to be entitled, accrued to                169               that  person at the time when  such  judgment,               order or decree declares it to have accrued to               that person:               that  any legal character which it  takes  way               from  any such person ceased at the time  from               which such judgment, order or decree  declared               that it had ceased or should cease;               and  that  anything to which it  declares  any               person  to be so entitled was the property  of               that  person  at  the  time  from  which  such               judgment, order or decree declares that it had               been or should be his property." The judgments mentioned in this section are called judgments in   rem.   As  far  back  as  Yarakalamma  v.  Ankala   (1) distinction ’was made between judgments which bound only the parties to it and judgments which bound also strangers.  The terms  of  Roman  Law which divided law  into  quod  ad  res pertinet  and quod ad personas pertinet furnished the  root, and   this  classic  distinction  has  been  taken  as   the foundation.  In Kanhya Lal v. Radha Charan(2) Peacock, C.J., gave  a  list of judgments in rem, and that  list  has  been followed in framing s.41. The list of such judgments is much longer  in Taylor on evidence, and the present  day  Private International Law includes all question of status within it. Sir James Stephen is reported to have said that he  included only those judgments to which conclusiveness could be  given from  the  point  of view of the law  of  evidence  and  the conclusiveness  attaches  as  to  a  given  matter  of  fact relevant  to  the  issue,  which  may  be  proved  from  the

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judgment.  That there may be other provisions, of some other law  which may also attach conclusiveness to judgment  etc., of  some other kinds goes without saying.  Section  41  does not prohibit the making of other laws.  The (1) 2 M H.C.R. 276. (2) (1667) 7 W.R. 338. 170 provisions  of  El. 11 of the Code of Civil  Procedure,  for example,  go much farther than s. 40 or s. 41 of the  Indian Evidence Act.  Section 40 touches only the fringe of the law of  resjudicata ; but provision for that has been made  more exhaustively  in s. 11 of the Code of Civil Procedure.   The difference between provisions in the law of evidence and the law  of  procedure is that one deals with  the  question  of proof  and the other, with a bar of suit.  A fact which  can be  proved from a judgment made conclusive for that  purpose need  not  be proved afresh.  The proof of the  judgment  is enough.   But  a  second  suit can only  be  barred  on  the principle  of resjudicata if the law says so ; and this  bar is  regarding  the  adjudication of  a  controversy  decided before.   It is not possible to add to the list of  subjects mentioned  in  s. 41 of the Indian Evidence Act,  except  by legislation.   Conclusiveness  there attaches  only  to  the subjects  mentioned  therein, and a fact  established  by  a judgment  of  a competent Court on any of  the  subjects  is taken  to  be  proved, and  established  in  all  subsequent proceedings  and does not require to be proved  again.   The Judicial  Committee in Appa Trimbak v. Waman Govind (1)  did not extend the Principle of s. 41 to a case of adoption  and a former judgment on the question of adoption was considered under  s.  1 of the code and not under P. 41 of  the  Indian Evidence Act.  The former judgment was not accepted under s. 11 of the Code as it did not come within its terms, and  the fact was allowed to be proved de novo.  The reason given for the nonapplicability of s. 41 was said to be that the  deci- sions  on  adoption were excluded by Sir  Barne  Peacock  in Kanhya /,at v. Radha Charan (2) and also in s. 41. From  the above, it follows that conclusi. veness, from  the point of view of the law of (1) A.I.R. 1941 P C. 85. (2) (1867) 7 W.R. 338.  171 evidence,  will attach to a judgment, order or decree,  only if it falls within the categories mentioned in s. 41.   Once a judgment etc. falls within it, the law dispenses with  the proof of the fact and the conclusion of the former  judgment etc.,  about  the  legal  character  which  it  confers   or declares, together with the declarations of property arising from  that  legal character, is final.  In my  opinion,  the conclusiveness under s. 41 of the Indian Evidence Act cannot be  claimed in this case for the Mysore judgment in view  of the  enumeration  of certain jurisdictions in  the  section, bacause the status of being joint or separate in relation to a  Hindu  coparcenery  property  is not  one  of  the  legal characters mentioned in it. The  question thus to consider is whether s. 13 of the  Code of Civil Procedure is confined to those judgments, which  do not  fall within s. 41, or in other words, to  judgments  in personam  as  contended  by the  learned  Attorney  General. There  is nothing in the language of s. 13 to suggest  this, as  the section provides a general rule about foreign  judg- ments and makes them conclusive between the same parties  or between  parties under whom or any of them claim  litigating under the same title. .From the mention of parties and their privies,  it  does appear as if the section is  confined  to

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judgments inter partes, to borrow the language of  Halsbury. But  a comparison of the terms of the section with those  of ss.  40-44 of the Indian Evidence Act discloses a  different meaning.  Section 41 speaks of a competent Court, and s.  44 allows  the question to be raised whether the  judgment  was obtained by fraud or collusion.  But ss. 40-44 of the Indian Evidence  Act  do not contain certain provisions  which  are contained,   in  s.  13  as  conditions  precedent  to   the conclusiveness  of  foreign judgment.  It  is  inconceivable that a foreign judgment in rem of 172 the class mentioned in s. 41 of the Indian Evidence Act  was intended  to  operate,  as conclusive, even  though  it  was opposed  to the principles of natural justice or  though  it was not given on the merits of the case or if it was founded on  an  incorrect view of international law or  the  law  of India,  or was in breach of any law in force in India.   The existence of such prior conditions in s. 13 of the Code  and their  absence in the Evidence Act compel one to  hold  that both  judgments  in  rem  and  judgments  in  personam   are contemplated  by s. 13 of the Code.  The only difference  is that while the Code makes foreign judgments conclusive inter partes,  s. 41 makes certain determinations described  there as  conclusive  proof  even  against  strangers.   But  such determinations,  if  found to foreign judgments,  must  also comply  with  the  conditions  stated  in  a.  13  to  merit conclusiveness,  and a foreign judgment will fail to  bar  a suit if those conditions are not also fulfilled.  It is from this  standpoint  that  I  shall  consider  these   appeals, because, in my opinion, no other approach is admissible. The  judgment  of the Mysore High Court  cannot  be  brought within the terms of s. 41 of the Indian Evidence Act  except in  so far as it would have, if the probate granted  by  the Mysore  Court had been cancelled.  Such an  eventuality  has not  taken place, and I need not consider it,  because  even there,  some difficulties are possible.  Here, the  judgment of  the  Mysore High Court was given between  the  self-same parties, who are litigating under the same title in  Madras. The executors rely here, as they did in Mysore, on the  will of.   Ramalingam,  and the sons of Ramalingam  rely  on  his being  a  member of coparcenery.  The will is  effective  or ineffective  if  it  disposes of the  separate  property  of Ramalingam or the property of a 173 coparcenery.   These titles were finally decided in  respect of  the  properties  in Mysore  including  the  business  of Ramalingam  and  the properties, movable and  immovable,  in Mysore  State.   No  decision was given in  respect  of  the property   in   Madras.   The  matter  relating   to   Hindu coparcenery  and  the  position of  Ramalingam  were  really questions of status, and why this is so I shall now explain. Ordinarily,  a  judgment upon status is considered to  be  a judgment in rem; see the classic definition of a judgment in rem  in  Smith’s  Leading Cases which  has  stood  unchanged through  the many editions.  There is, however,  no  settled definition  of ’status’.  Paton in his jurisprudence  (1946) at  p. 256 quoting the analysis of Dr. Allen (Legal  Duties) says:-                "Status  may  be  described as  the  fact  or               condition  of membership of a ground of  which               the  powers  are determined  extrinsically  by               law,   status   affecting   not   merely   one                             particular relationship, but being a condition               affecting generally though in varying degree a               member’s claims and powers."

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             Dr. Allen calls it.               "the  condition of belonging to  a  particular               class  of  persons  to  whom  the  law  assign               certain    peculiar   legal   capacities    or               incapacities or both."               Dr. Allen also adds:-                "We  must-distinguish  three  quite  separate               things  Status the condition which gives  rise               to certain capacities or incapacities or both;               Capacity  the  power to acquire  and  exercise               rights.  and the rights themselves  which  are               acquired by the exercise of capacity."               174 Thus status leads to capacity, and capacity to rights and to rights  can be said to be embedded in status and  to  spring from it.  Scrutton, L. J., in In re Luck’s Settlement Trusts (1)  said:  "Status  is  in  every  case  the  creature   of substantive law." According  to  Salmond, the aggregate of  man’s  proprietary rights  constitutes his estate his assets or property.   The sum  total  of  his  personal rights,  on  the  other  hand, constitutes his status.  According to him, substantive Civil Law is thus divided:-    Substantive Civil Law                           |        -----------------------------------------        |                  |                     |      property         Obligations             Status                     Domestic                     |                                     -------------------                                     |                  |                                  Status       Extra-domestic                                                     status Domestic  status, as he explains in an appendix to his  Book is-               "the  Law of family relations, and deals  with               the  nature acquisition and loss of all  these               personal   rights,  duties,  liabilities   and               disabilities  which are involved  in  domestic               relations." The conflict of law ordinarily recognises status created  by the  law  of another country.  See In re  Luck’s  Settlement Trusts(1)  at  p.  891  and  Salvesan  v.  Administrator  of Austrian  Property(2).   In the. domain of  Domestic  Status (barring  marriage)  there is no element  of  contract,  and Maine  says  in Ancient Law ,,the  movement  of  progressive secirties  has  hitherto  been a  movement  from  status  to contract"  Hollond in (1) (1940) 1 Ch. 864, 890. (2) [1927] A.C. 641, 662. 175 his  Jurisprudence  gives sixteen instances  of  status  and includes  in them ’patria potestas’ which brings the  matter very near a Karta of a joint Hindu family. All  the above definitions have been judicially noticed  and applied by the Australian High Court in the exposition of s. 35 of the Judiciary Act, 1903, which allows an appeal to  be brought without leave from any judgment of the Supreme Court of  a  State which "affects the status of any  porson".   In Daniel v. Daniel(1) Griffith, C. J. defined status to be:-               "a condition attached by law to a person which               confers or affects or limits a legal  capacity               of  exercising  some power  that  under  other               circumstances  he could not or could  exercise               without restriction".

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    In Shanks v. Shanksthis definition was accepted  and in Ford v. Fordall the definitions considered     by me were referredto among others and the analysis of Dr. Allen was approved. It must therefore follow that where the source of rights  is birth and the domestic relationship leads to rights but  not to proprietorship of property the rights can only be said to arise  from  status.  A coparcener in  a  Hindu  coparcenery cannot  be admitted by contract.  The right, is obtained  by birth.   Even an infant "en ventre sa mere" is in Hindu  Law relating  to  a  coparcenery born for  many  purposes.   His rights  are thus determined by status.  In early law&  there is  always  an  emphasis on rights following  on  birth  and writers  of  Jurisprudence  have  commented  that  in   such societies there is always difficulty in rising above’ birth. No doubt the words status and estate had a common origin but in  course  of  time  they  have  acquired  different  legal meanings.  See Pollock and Maitland History of English  Law, Vol.  II, 1st Edn. (1) (1906) 4 C.L.R. 563, 566.  (2) (1942) 65 C.L.R. 334.                  (3) (1947) 73 C.L.R. 524, 176 pp. IO and 78.  In the law of Hindu Coparcenery, there is no ownership  of  property apart from the coparcenery  and  the rights in the property are such as are determined by status. Where  domestic relationship determines the status  and  the status, the rights all disputes and claims can only be based on  status  and  not on  proprietorship.   Inheritance  thus depends on domestic status, and in the same way survivorship the right to share partition and maintenance are the aspects of domestic status.  In this sense, a coparcenery is nothing more  than a kind of corporation not arising  from  contract but status and any matter relating to coparcenery is first a question  of status and only when the status is  established that a source of material rights comes into being. If  the  matter had rested with the  application  of  modern theories  of  Private International Law I  would  have  been tempted  to  characterise the decision of  the  Mysore  High Court as partly in rem and partly in personam, that  dealing with  the question of joint or separate acquisition  of  the Kolar  Gold  Fields  business  by  Ramalingam  as  involving decision  arising  out  of status and  thus  in  rem.   Such composite  actions are not unknown.  Story has  adverted  to them  in  a passage I have cited earlier and  the  Court  of Appeal  in England in In re Trepca Mines Ltd. (1) found  the action  to  be partly in rem and partly  in  personam.   The decision  of  the Mysore High Court was one  on  status  and savoured  of  a decision in rem.  Limited  as  the  Judicial approach is by the existence of a. 41 of the Indian Evidence Act and the Judicial Committee in Appa Trimback’s case  (2), I  venture to express this opinion.   Private  International Law  today  is developing by reciprocity and more  and  more kinds  of judgments are being received as conclusive,  which twenty years ago were not consi- (1) (1960) 1. W. L. R. 1273.  (2) A.I.R. 1941 P.C. 524.  177 dered  as  conclusive.  If we do not give faith  to  foreign judgments  on  the  subject of adoption  family  status  and questions  arising  from  such  domestic  relations,   other Countries  will  also follow suit about our  judgments.   It will  be quite amazing if a judgment on adoption  in  Ceylon (for example) is not considered binding in this Country  and vice  versa.  Adoption is not one of the subjects  mentioned in s. 41, and if treated as a decision on status and thus in rem  will be conclusive between the same parties  and  their

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privies under s. 13.  The same must be said of judgments  on joint family status or the position of any particular member vis  a  vis the family.  To treat judgments in  this  manner accords with the modern notions of Conflict of Laws. Even  if the subject be viewed from the angle of a  judgment in personam, it is obvious that "the matter" decided be  the Mysore  High Court was whether Ramalingam was a member of  a coparcenory and acquired the Gold Kolar Fields business  and other properties as such member.  That was the res  decided, the  destination of the properties being ancillary  to  this main decision. It  was  argued  on  the basis of  ruling  of  the  Judicial Committee  in  Brijlal  Ramjidas  v.  Govindram   Gordhandas Seksaria(1) that the words "judgment" in. s. 13 of the  Code means "an adjudication by the foreign, Court upon the matter before  it" and not the reasons for judgment.  The-words  of the  section  are "directly adjudicated thereby."  What  was meant by the Privy Council was that the adjudicative part of the judgment is conclusive and this part ’of the Mysore High Court  judgment is that Ramalingam was not carrying on  the, Kolar   Gold   Fields   business   as   a   coparcener   but independently.   If was not the adjudicative part there  was very (1)  (1947) L. R. 74 I.A. 203, 210. 178 little  else.   The  language of a. 13  speaks  not  of  the judgment but "’matter thereby directly adjudicated upon" and the  word ’,,any" shows that all the adjudicative  parts  of the  judgment are equally conclusive in the sense  in  which Foote and Rattigan and other have described them. It was argued that the subject-matter of the suit in  Madras was  immovable property over which the Mysore Court did  not and could not exercise jurisdiction.  Reference was made  to Decey’s Conflict of Laws and Castrique v. Imrie (1) to  show that only the Courts of the Country where immovable property is   situated   have  jurisdiction  and  the   lexsitus   is applicable.   In Cartrique v. Imrie (1) the question  really was whether the sale of chattal (a ship) in satisfaction  of a  claim against the chattal itself was binding  on  certain parties  who  had not submitted to the jurisdiction  of  the French Courts and it was held that a judgment ordering  such sale  was a judgment in rem if the chattal at that time  was in the territory of the foreign State.  The ship in question had taken provision on board for which payment was  demanded and the action in the French Tribunals was taken against the Commander Benson who was required to pay ’par privilege  sur ce  Navire.  Of  course the owner Clause  or  Castrique  the purchaser  did  not appear before the  French  Tribunal  but jurisdiction  of  the French Tribunals was  founded  on  the presence  of  the  ship in French  waters  at  Havre.   Such question  can hardly arise in respect of immovable  property because  the  courts  of the Country  where  immovables  are situated  can  alone have the jurisdiction  and  no  foreign Court can decide the dispute or enforce it effectively. Apart  from  the fact that even in England  the  distinction between  real and personal property has not been adhered  to when the English Courts (1)  (1870) L.R. 4 H.L. 414. 179 specify   immovable   property  for  purposes   of   Private International  Law it is obvious that the  distinction  does not come within s. 13 of the Code.  If the Mysore High Court purported  to decide about immovable property in  Madras  or the law applicable to the family was different I would  have at once agreed with the argument.  But the argument confuses

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the  jurisdiction  and the law, on the one  hand  with  "the matter  decided"  on the other.  The rule in  British  South Africa Company v. Companhia De Mocambique (1) that court can entertain  actions  in  respect  of  immovables  which   are situated  in  a foreign country does not  prevent  in  India under  a. 13, the conclusiveness inter partes of a  judgment as  to  any  matter adjudicated thereby.  That  is  quite  a different affair if the adjudication is about proprietorship based on status.  The rule in the above case would have made the decree of the Mysore High Court a nullity if the  Mysore High Court had decided as issue about immovable property  in Madras.   But the Mysore High Court did not decide any  such question.  It decided a question of the status of Ramalingam and  the  ownership of the Kolar Gold Fields  business  with complete  jurisdiction between the same  parties  litigating under  the same title.  That decision must be viewed in  the Madras suit as a conclusive adjudication.  The Madras  Court could not decide the question of the ownership of the  Kolar Gold  Fields  business  de novo and  as  ancillary  to  that decision determine the right to the property in Madras.   Of course the Madras Court was free to try other questions  and consider  other defenses such as why the judgment of  Mysore High Court was not applicable to the properties before it  ; but the fundamental question of ownership of the Kolar  Gold Fields  business,  it  could  not try  over  again.   In  my opinion, even the evidence led (1)  [1893] A.C. 602. 180 in the Madras suit to reopen that question was  inadmissible though  evidence to prove bias interest etc. on the part  of the  learned Judges was properly allowed to be led.  It  was not  open to the- Madras High Court, to try the question  of Ramalingam’s  status de novo and that part of  the  decision must be treated as without jurisdiction.  I am therefore not entering into that question nor considering the evidence. Before  I consider the question of the shares of the  Indian Sugar and Refineries Ltd., Madras I wish to refer to a  case of  the  Privy  Council on which  great  reliance  has  been placed.   That  case is reported as Maqbul  Fatima  v.  Amir Hasan(1).   The  judgment that is printed in the  All  India Reporter is of the Allahabad High Court which the head  note says was "confirmed by" the Privy Council.  I shall  content myself with citing the headnote :               "A obtained judgment in the sub Court Bareilly               (British Indian Court) declaring his title  to               the properties of the deceased situate  within               the jurisdiction of that Court.   Subsequently               B  instituted  a suit against A in  Rampur,  a               Native State for recovery of possession of the               properties of the deceased situate within  the               Native State.  Thereupon A filed the  ’present               suit  for a declaration that the  Judgment  of               the  Bareilly  Court  would  operate  as   res               judicata  in  the  Rampur  Court  and  for   a               perpetual   injunction  restraining   B   from               proceeding with the suit therein.  The High                       X       X               Court held that as the Court in British  India               were  not competent to try suits with  respect               to  property  situate  in  Native  State   the               judgment  of  the  Bareilly  Court  would  not               operate as res judicata.               (1)   A.I.R. 1916 P.C. 136.               181               It being urged that under s. 13 Civil P.C. the

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             rule  contained in which was alleged to  apply               in  Rampur the Judgment of the Bareilly  Court               was  conclusive between the parties  the  High               Court hold that it was only in proceedings  on               foreign  Judgment  that the  question  of  the               effect  of  foreign  Judgment  could  properly               arise." The  second  reason  given  by the  High  Court  was  quite sufficient  and-  valid.  There was no need  to  decide  the first point which was for the Rampur Courts to decide.   The High  Court however, went further and decided whether  their judgment  would be res judicata under s. 13 of the  Code  of Civil  Procedure (as applied in Rampur which the High  Court presumed  was the same as in British India) in Rampur  State and   came  to  the  conclusion  that   the   words"directly adjudicated thereby" meant the actual decretal part of their judgment.   This  question  was not for the  High  Court  to decide but for the Rampur Court. I  may  men,  ion  here this suit which  was  filed  for  an injunction was one of a kind resorted to in the  seventeenth Century  of which the Reports do not exist apart  from  Lord Nottingham’s   manuscripts  to  be  found  in   3   Swanston 603607(46) which seems to have long ago fallen in desuetude. No wonder the Privy Council judgment was :               "Their  Lordships  do  not see  their  way  to               reverse  the decision appealed from  and  will               humbly  advise  His  Majesty  to  dismiss  the               appeal.  As the respondents have not  appeared               there will-be no order is to costs." it only remains to consider the argument in relation to  the shares  of the Indian Sugars and Re. fineries Ltd.   It  was contended that the, shares must 182 be  deemed  to be situated where they could  be  effectively dealt with and that was Madras, where the Head Office of the Company  was  situated.  Learned counsel  relied  upon  some English  cases  in  support of his contention.   It  is  not necessary  to  refer to those cases.  The  suits  of  shares between  the Company and the shareholders is undoubtedly  in the  Country  where  the business is  situated.   But  in  a dispute between rival claimants both within the jurisdiction of  a Court over shares the Court has jurisdiction over  the parties  and the share scripts which are before  the  Court. The  Mysore Court was in this position.  Between  the  rival claimants the Mysore High Court could order the share scrips to  be handed over to the successful party and if  necessary could order transfer of the shares between them and enforce that order by the coercive process of the law.  It would  be a  different matter if the Company refused to, register  the transfer  and a different question might then  have  arisen; but we are told that the Company has obeyed the decision and accepted the executors as the shareholders.  The judgment of the Mysore Court on the ownership of the shares is ancillary to the main decision.  It is therefore not necessary for  me to  consider  the argument of Mr.  Desai  that  jurisdiction attaches  on  the principle of effectiveness  propounded  by Dicey, but which has been criticised by the present  editors of   his  book  and  by  Cheshire.   In  my  opinion,   this controversy  does  not  arise in this case,  which  must  be decided  on  the plain words of s. 13 of the Code  of  Civil Procedure. For  the reasons above given I would dismiss the  appeal  of the  sons of Ramalingam (Civil Appeal No. 277 of  1958)  and allow  that of the executors (Civil Appeal No 278 of  1958), dismissing C. S. No. 214 of 1944 with costs throughout.   In

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the light of what I have decided I would have considered the  183 remaining appeals and passed appropriate orders therein; but this is unnecessary as my brethren take a different view  in the two main appeals. By  COURT: In view of the majority Judgment, there  will  be decree in terms as stated in the Judgment of the majority.