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PETITIONER: SANKARAN GOVINDAN

       Vs.

RESPONDENT: LAKSHMI BHARATHI & OTHERS

DATE OF JUDGMENT15/04/1974

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A.

CITATION:  1974 AIR 1764            1975 SCR  (1)  57  1975 SCC  (3) 351

ACT: Private International Law. Domicile--Decision of a foreign Court when would operate  as res judicata. Domicile-A  mixed  question  of  law  and  fact--Tests   for determining   domicile--Distinction  between   mistake   and trickery--Fraud--What constitutes. Minors--Notice  of  proceedings  served  on  minors  through guardians  not appointed ad litem--If opposed to  principles of natural justice. "Contrary to natural justice"--What it means in relation  to foreign Judgments.-- Res Judicata--Determination of domicile if would operate  as res judicata if minors did not submit to the jurisdiction of the Court. Res Judicata--A Judgment on merits involves res judicata  of credibility of witnesses. Judgment in rem--Effect of.

HEADNOTE: K went to England in 1920 for higher studies in medicine and thereafter  he  practiced there.  He died  in  1950  leaving behind house movable properties and moneys.   A  suit for partition was instituted in  India  in respect of the assets of K in India with brother and  sister as  defendants  1 and 2. After the institution of  the  suit proceedings were started in England for obtaining Letters of Administration of the estate of K as there was likelihood of dispute  as respects the domicile of K.  The  Administrators took  out  originating  summons for  deciding  the  question whether K was domiciled in England at the time of his death. By ex. 56 order the High Court of Judicature in England held that K had domiciled in England.  The movable properties  in England were sold and the proceeds together with the  moneys were  handed over to defendants 1 and 2. After ex. 56  order was  passed  by  the High Court in England  the  plaint  was amended with the prayer to divide this amount also which was separately  mentioned  in Schedule C.  The  first  defendant contended that Schedule C amount was not liable to be  divi- ded among the parties to the suit, that as K died  domiciled in England succession to the movable was governed by English Law  and that defendants 1 and 2 alone were entitled to  the

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same  as  next  of kin of the  deceased.   The  trial  court rejected  this  contention  and directed  partition  of  the amount  according to Travancore Ezhva Act.  The  High  Court confirmed  the  finding of the trial court that  K  was  not domiciled  in  England, that ex. 56 order  was  obtained  by fraud  of defendant no. 1; that the proceeding in which  ex. 56  was  obtained was opposed to the principles  of  natural justice  and.  therefore, ex. 56 would not  operate  as  res judicata on the question of domicile of K. On  appeal  to this Court by defendant no. 1  the  questions arose  (1) Whether ex. 56 order operated as res judicata  on the domicile of K and if it did whether there was sufficient evidence  to  show  that K died domiciled  in  England;  (2) whether  the proceedings in which ex. 56 order was  obtained were opposed to natural justice in as much as the notices of the  proceedings  were served on the  minors  through  their natural guardians, who were not appointed guardians ad litem and  (3) Whether ex. 56 order would operate as res  judicata since  the minors did not submit to the jurisdiction of  the court. Allowing the appeal, HELD : Succession to the amount specified in Schedule C must be  governed  by  the English Law and  the  amount  must  be distributed between the first and second defendants in equal shares. 58 (1)(a)  It  is  a  well  established  principle  of  private international law that if a foreign judgment was obtained by fraud  or if the proceedings in which it was  obtained  were opposed  to  natural  justice, if will nut  operate  as  res judicata. Section 13 CPC referred to. (b)  The  High Court was not justified in imputing fraud  to the first defendant in procuring ex. 56 order. It is impossible to say that the High Court of Judicature in England was tricked or misled to grant the declaration  that the deceased was domiciled in England   on the basis of  the affidavits filed by the first defendant. (c)  Domicile is a mixed question of law and fact and  there is  perhaps  no  chapter  in the  law  that  has  from  such extensive discussion received less satisfactory  settlement. This is, no doubt, attributable to the nature of the subject including  as  it does, inquiry into animus of  persons  who have  either died without leaving any clear record of  their intentions,  but allowing them to be collected by  inference from   acts  often  equivocal;  or  who  being   alive   and interested,  have  a natural tendency to give  their  bygone feelings  a  tone  and colour  suggested  by  their  present inclinations. (d)  The traditional statement that, to establish  domicile, there  must  be a present intention of  permanent  residence merely  means that so far as the, mind of the person at  the relevant  time  was concerned, he  possessed  the  requisite intention.  The relevant time varies with the nature of  the inquiry.  It may be past or present.  If the inquiry relates to  the  domicile  of  the  deceased  person,  it  must   be ascertained whether at some period in his life he had formed and retained a fixed and settled intention of residence in a given  country.   One has to consider  the  tastes,  habits, conducts, actions, ambitions, health, hopes and projects  of a  person because they are all considered to be keys to  his intention to make a permanent home in a place. Bell  v.  Kennedy  (1868)  L.R. I  Sc.  &  Div.  307,  322., Cheshire’s  Private  International Law, 8th  ed.  164.,  The Speech  of Lord Atkinson in Winans v. A.G. (1904) A.C.  287,

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referred to. In  the  instant  case  the statements  made  by  the  first defendant  in some of the letters written by him,  while  he was  in England, that K would return to India could  not  be taken  as conclusive of the fact that he entertained a  view after  taking  legal  advice from lawyers, that  K  was  not domiciled   in  England  and  the  affidavits  filed   were, therefore, necessarily false. (e)  There  is an essential distinction between mistake  and trickery.  The clear implication of the distinction is  that an  action to set aside a judgment cannot be brought on  the ground that it has been decided wrongly, namely that on  the merits,  the  decision was one which should  not  have  been rendered,  but  that it can be set aside if  the  Court  was imposed upon or tricked into giving the judgment.  It is now firmly  established that a foreign judgment  is  impeachable for fraud in the sense that upon proof of fraud it cannot be enforced by action or operate as res judicata. Abouloff  v.  Oppentheimer, (1882) 10 Q.B.D. 295  Vadala  v. Lawes  (1890) 25 Q.B.D. 310., Sval v. Hevward, (1948) 2  All E.R.  576., Woodruff v. Molennan, (1887) 14 Ont.  A.R.  242, Jacobs  v. Beaver. 17 Ont.  L.R. 496., Hilton v. Guvot,  159 ’U.S. 113, 210. referred to. (f)  It  is  axiomatic that the question of  credibility  of witnesses,  whether they are misleading the court  by  false testimony,  has  to be determined by the tribunal  in  every trial  as  an essential issue, decision of which is  a  Pre- requisite to the decision of the main issue upon the merits. A  judgment on the merits therefore, necessarily involves  a res  judicata of the credibility of witnesses in so  far  as the evidence which was before the tribunal is concerned. (g)  When  an allegation is made that a foreign judgment  is vitiated  because  the  court  was  fraudulently  misled  by perjury, and issue is taken with that allegation and  heard, if  the only evidence available to substantiate it  is  that which was                              59 used  in the foreign Court, the result will be a retrial  on the  merits.   The fraud relied upon must  be  extrinsic  or collateral  and  not  merely fraud  which  is  imputed  from alleged  false statements made at the trial which  were  met with  counter statements and the whole adjudicated  upon  by Court  and  so  passed into the limbo  of  estopped  by  the judgment.   That  estopped cannot be disturbed  except  upon allegation  and proof of new and material facts  which  were not before the former court and from which are to be deduced the new proposition that the former judgment was obtained by fraud. Jacob v. Beaver 17 Ont L.R. 496 referred to. Conflict  of Laws, Foreign Judgment as Defence.  Note  in  8 Canadian Bar Review 231 by Horace E Road, referred to. (h)  It  is  impossible to formulate a rule  specifying  the weight to be given. to particular evidence.  All that can be gathered  from the authorities in this respect is that  more reliance  is  placed upon conduct than upon  declaration  of intention.   It is not by naked assertion but by  deeds  and acts that a domicile is established. The declaration of K in the letters written after 1939  that he  would  return  to Travancore did not  contain  the  real expression  of  his settled intention.   These  declarations cannot  be taken at their face value.  They  are  interested statements designed to extract from his brother the share of his  income.  They seem to. represent nothing more  than  an expectation unlikely to be fulfilled. Mcmullen  v.  Wadsworth (1889) 14 App.  Cas. 631,  at  636.,

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Ross v. Ross [1930] A.C., at v. 6. (i)  "The fraud which vitiates a judgment must generally  be fraud  of  the  party  in  whose  favour  the  judgment   is obtained." It was the administrators who obtained the  order of the High Court and by no stretch of imagination could  it be  said that they practised any fraud by adducing  evidence which  they  knew  was false or induced  by  any  person  or witness to give false evidence or file any false  affidavit. Nor  could it be said that the English Court was  misled  by what  the first defendant said about the domicile of  K,  as persons  who are more competent to speak about his  domicile had  filed  affidavits  and tendered oral  evidence  to  the effect that he died domiciled in England. (2)  The  expression  ’contrary  to  natural  justice’  when applied  to foreign judgments merely relates to the  alleged irregularities  in  procedure adopted  by  the  adjudicating court and has nothing to do with the merits of the case.  If the  proceedings be in accordance with the practice  of  the foreign  court but that practice is not in  accordance  with the  natural  justice, this Court will not allow  it  to  be concluded  by them.  The wholesome maxim audiulteram  partem is   deemed   to  be  universal  not  merely   of   domestic application,  and therefore, the only question  is,  whether the  minors had an opportunity of contesting the  proceeding in  the  English Court.  All that is required  by  rules  of natural   justice  is  that  minors  should  be   given   an opportunity  to  contest through  their  natural  guardians. Even  if  there  was any breach of  the  rule  of  procedure prevailing  in  the  forum where the  proceeding  have  been conducted  that would not be material as what the Court  has to  see  is whether the proceedings have been  conducted  in substantial  compliance with the prevailing notion  of  fair play.   When the natural guardians evinced  their  intention not to contest the proceedings by not putting an  appearance on behalf of the minors, the requirements of natural justice was  satisfied  when the court appointed an officer  of  the court  to  be  guardian  ad  litem  of  the  minors  in  the proceedings. (3)(a)  It  is  a well established  proposition  in  private international   law   that  unless  a  foreign   court   has jurisdiction   in  the  international  sense,   a   judgment delivered   by  that  court  would  not  be  recognized   or enforceable  in India.  The guardians of the minors did  not enter appearance on behalf of the minors and so it cannot be said that the minors through the guardians submitted to  the jurisdiction of the English Court. (b)  A judgment in rem determines the status of a person  or thing  and  such a judgment is conclusive evidence  for  and against all persons whether parties, 60 privies  or  strangers of the matter  actually  decided.   A judgment  in rem determines the "destiny of the res  itself" and  binds all persons claiming an interest in the res.  [78 B-C] So  far  as the major respondents before the High  Court  of Judicature   in  England  were  concerned  the   Court   had jurisdiction  since they submitted to its  jurisdiction  and the  decision  of the court would operate as  res  judicata. But,  so far as the minor respondents to  those  proceedings were concerned on the evidence in this case K had no settled or definite intention to return to Travancore and that as he was  a resident in England and as his acts and conduct  were consistent only with his intention to make it his  permanent home, he died domiciled in England. [79 B-D]

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JUDGMENT: CIVIL APPELLATE JURISDICTION  Civil Appeal No.  1887 of 1967 Appeal from the Judgment and Decree dated the 20th December, 1963 of the Kerala High Court at Eranakulam in A. S. No.  54 of 1959. Sarjoo  Prasad  with M/s Sardar Bahadur and  Vishnu  Bahadur Saharaya, for the appellant. Mr. W. S. Barlingay and Mr. D. N. Misra for the respondent.                          ARGUMENTS For  the  appellants : (1) Approach of the Courts  below  is wrong  since they should have first considered  whether  the judgment  of English Court was not binding and  should  have gone  into the question of domicile only if they  held  that the judgment, was not pending. (2)  There  was  no pleading regarding the  judgment  having been obtained by fraud, or being opposed to natural justice. Even in their application no particulars as required by  law were given. (3)  There  is  no  evidence  on record  to  show  that  the appellant  played  any fraud upon the English Court  or  had given wrong information to the Solicitor.    The   appellant gave  information  regarding the assets of the  deceased  in India  and his relatives in India.  All the parties  to  the suit had  been made parties in the suit in England. (4)  All  the parties in the suit had been duly  served  the summons  of the suit and they were represented by their  own solicitor  before  the  English Court.   Since  the  natural guardians  of the minors did not come forward  to  represent the  minors,  the court appointed an official  solicitor  as their guardian for the suit.  There was nothing against  the rules of natural justice. (5)  The documents and evidence on record did not  establish that the deceased was not domiciled in England.  His efforts to  bring him back to India failed and the  deceased  always kept  postponing the date of his to India until he  died  in October,  1950.  Persons in touch with the deceased had  all stated  that they knew that the deceased did not  intend  to return to India and wanted to settle down in England. 61 (6)  In  any  event  there  is  nothing  to  show  that  the appellant   had  been  guilty  of  any  kind  of  fraud   or misrepresentation which could have resulted in the  judgment of the English Court. For the respondent : (1) There is overwhelming evidence  and also concurrent finding by both the trial Court and the High Court  that the deceased had the intention of  returning  to India  and settle down here.  There was no question  of  his changing the original domicile and acquire a new domicile of choice.   Every  one of his letters showed this  and  not  a single  letter  of  his  has been  produced  which  shows  a contrary intention.  The infants who were as many as 17  had not  submitted  to the jurisdiction of  the  English  court. Notices  issued  by  the English Court were  served  on  the fathers of these infants who never appeared on their  behalf in  the English Court and therefore the  official  solicitor was appointed to represent them.  There was no power in  the English  Court to compel the infants or their  guardians  to appear  before  it especially when it was  proceeding  under O.X.I. of the English Supreme Court Rules. (2)  The appointment of the official solicitor to  represent the minors was merely a formal affair.  The real question is whether  a person was appointed as guardian ad litem by  the English  Court, who understood the interests of the  infants

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and was capable of guarding their interests. Not  appointing a  proper  guardian  is  a  matter  of  procedure  and  this procedure  was  not followed.  The judgment of  the  English Court,    therefore,   is   contrary  to   natural   justice according to the, notions of the Indian Courts. (3)  There is a concurrent finding of both the courts  below that  the English judgment was obtained by virtue of  s.  13 CPC which speaks of judgment obtained by fraud.  It does not say at whose instance the fraud is committed. (4), Though formally the administrators were the  plaintiffs in  the  English  Court,  it was  at  the  instance  of  the appellant  that  these  proceedings  were  initiated.    The appellant  know well that the deceased had the intention  to come  back  to India and yet he misguided his  attorneys  in England by giving instructions to them, which were false  to his knowledge. The Judgment of the Court was delivered by MATHIEW,   J.  This  is  an  appeal,  on  the  basis  of   a certificate, by the first defendant, from a decree in a suit for  partition of- the assets of’ one Dr. Krishnan who  died in England on October 18, 1950, according to the  provisions of  the  Travancore Ezhava Act and the dispute  between  the parties now is concerned with the question of succession  to the  sale proceeds of the movable and other moneys  included in Schedule-C to the plaint. Krishnan had two brothers, namely, Padmanabhan and Govindan, the  first  defendant, and a sister, the  second  defendant. Krishnan  went  to  England in 1920 for  higher  studies  in medicine.   For some time his father helped him  with  money but, after the father’s death, 62 his  elder brother, Padmanabhan did not send him  any  money and,  therefore, Krishnan had to find his own resource$  for prosecuting   his   studies.    He   received   considerable encouragement and financial help for carrying on his studies from  an elderly English lady by name Miss  Hepworth.   When Krishnan  became qualified to practise medicine, he  set  up practice  at Sheffield and in course of time he was able  to build  up  a good practice.  He was later employed  in  the, National  Health Scheme.  He purchased a building viz.,  75- Wood  house  Road,  Sheffield,  where  he  carried  on   his profession.  He was living in a rented house at 97-Prince of Wales  Road with Miss Hepworth.  He had, at the time of  his death, a private secretary named Mary Woodliff. The  first defendant-appellant came to England both for  the purpose  of qualifying himself for F.R.C.S, and  for  taking back  Krishnan  to  India.  He  prosecuted  his  studies  in England for which Krishnan helped him with money and, by the end  of  1949,  he  returned  to  India.   Contrary  to  his expectation, Krishnan did not accompany him.  Krishnan  died suddenly  in England on October 18, 1950 intestate.  He  had no wife and children and his assets in England consisted  of the house at 75-Woodhouse Road, Sheffield, valuable  movable properties and moneys. While  Krishnan was away in England, a partition took  place in  his family and a share in the properties of  the  family was  allotted to him.  Padmanabhan, his elder, brother,  was managing  the  properties till his  death.   The  properties included  in  Schedules  A and B to  the  plaint  are  those properties. As  already  stated, the second defendant is the  sister  of Krishnan  and 1st defendant, and plaintiffs 2 to 6  are  the children  of  the first plaintiff, daughter  of  the  second defendant.  Defendants 22 and 23 are Mr. Cyrin Lawlin Arksey and  Miss  Mary Woodliff, the administrators  of  Krishnan’s

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estate, appointed by the High Court of Judicature in England and they were impleaded in the suit some time in 1953,  well nigh two years’ after the original plaint was filed. In  the suit, as originally framed, the  plaintiffs  claimed partition  ,of the items mentioned in Schedules A and  B  of the plaint.  After the institution of the suit,  proceedings were  started in England by Arksey and Mary Woodliff on  the basis  of a power of attorney executed by the appellant  for obtaining  letters  of  administration  of  the  estate   of Krishnan.   Letters of administration were issued  in  their favour.  As there, was likelihood of dispute as respects the domicile   of   Krishnan,  the   administrators   took   out originating  summons  in  the High Court  of  Judicature  in England  for  deciding  the question  whether  Krishnan  was domiciled  in  England at the time of his death, By  ex.  56 order,  the High Court held that Krishnan died domiciled  in England.  The house and the movable in England were sold and the  proceeds together with the moneys were handed  over  to defendants  1  and  2  after taking  from  them  a  bond  of indemnity. 63 After ex. 56 order was passed by the High Court in  England, the  plaint was amended with a prayer to divide this  amount also which was separately mentioned as Schedule-C. The  first defendant contended that the amount specified  in Schedule-C was not liable to be divided among the parties to the  suit,  that  as Krishnan  died  domiciled  in  England, succession  to the assets in Schedule-C was governed by  the English  Law  and  that  he  and  his  sister,  the   second defendant, were alone entitled to the same as next of kin of the deceased. The  trial  court  overruled the  contention  of  the  first defendant  and  held  that Krishnan  was  not  domiciled  in England  at  the time of his death, that ex.  56  order  was obtained by fraud, that the proceedings which culminated  in ex.  56 order were opposed to natural justice and so ex.  56 order  did,  not  operate as res  judicata  and  directed  a partition  of  the  amount  specified  in  Schedule-C   also according to the provisions of the Ezhava Act. It was against this decree that the appeal was preferred  to the High Court by the first defendant. Before the High Court, the appellant contended, among  other things,  that ex. 56 order operated as’ res judicata on  the question  of domicile of Krishnan and that as Krishnan  died domiciled  in England,  succession to his movable  including moneys  would  be governed by English law and that,  in  any event, succession to the immovable property in England would be determined by the lax situs. The High Court confirmed the finding of the trial court that Krishnan was not domiciled in England, that ex. 56 order was obtained by fraud of the appellant, that the proceedings  in which  ex.  56  order  was  obtained  were  opposed  to  the principles  of natural justice and therefore, ex.  56  order would  not  operate  as  res judicata  on  the  question  of domicile of deceased Krishnan.  The Court further found that Krishnan did not acquire a domicile of choice in England and so,  succession  to movables including the  moneys  left  by Krishnan  was  not governed by English law but ought  to  be distributed  among the parties according to  the  provisions ’of the Ezhava Act.  The Court also held that succession  to the  house in Sheffield is governed by the law of situs  and that  the  next of kin of Krishnan are his  legal  heirs  in respect  of  the sale proceeds of that property.   The  High Court, there fore, confirmed the decree of, the trial  court with  the  modification  that  the  proceeds  of  the  house

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property  will be divided between the first and  the  second defendant alone. There  is  no  dispute between the  parties  that  the  sale proceeds  of  the immovable property, namely, the  house  in Sheffield,  should be distributed among the next of  kin  of Krishnan,  as succession to them should be governed  by  the English law whether or not Krishnan had acquired domicile in England.  Therefore, the only question for consideration  in this appeal is as regards the law which governs the  succes- sion to movable properties and the moneys left by  Krishnan. if 64 Krishnan had acquired a domicile of choice in England, there cane  be  no  doubt  that  England  law  would  govern   the succession to them. To answer the question, we have to decide : (1) whether  ex. 56  order  operates as res judicata on the question  of  the domicile of Krishnan, and, if it does not, (2) whether there was sufficient evidence to show that Krishnan died domiciled in England. We will take up the first question.  As already stated,  the High Court was of the view that ex. 56 order was obtained by fraud practised by the first defendant upon the court  which pronounced it and that, the proceedings which culminated  in ex. 56 order were opposed to natural justice and, therefore, it did not operate as res judicata. It is a well established principle of private  international law that if a foreign judgment was obtained by fraud, or  if the  proceedings  in which it was obtained were  opposed  to natural justice, it will not operate as res judicata(1). After the death of Krishnan, the first defendant addressed a letter  to the High Commissioner for India, London  (ex.  22 dated October 23, 1950) as to the course to be adopted  with regard  to  the  assets left by  Krishnan  in  England.   On November 10, 1950, Miss Hepworth wrote a letter to the first defendant stating that Krishnan had left movable  properties worth considerable amount in England and that his  intention was to settle down in England and that he had expressed that intention  to  her (ex. 12).  On November 27,  1950,  Arksey wrote a letter to the, first defendant stating that he  knew that Krishnan was domiciled in England and asking the  first defendant about the assets which Krishnan had in India  (ex. 44).   On  September  25,  1951, Arksey  sent  a  letter  to Damodaran,.  the husband of the first daughter of  defendant No. 2 (ex.  H) indicating the assets of Krishnan in  England and  that  letters of administration were obtained  in  good faith  on  the  basis that Krishnan had  died  domiciled  in England  and  that  he  was instructed  by  M/s.   King  and Partridge  that  a  doing  to  the  Constitution  of  India, Krishnan  would be deemed to have died domiciled in  England and  that the, first defendant and his sister would  be  the legal heirs of Krishnan if he had died domiciled in England. After  having  obtained the letters of  administration,  the administrators, namely Arksey and Mary Woodliff, found  that there  was dispute among the parties to the suit  about  the domicile  of  Krishnan  at  the  time  of  his  death.   The administrators wanted to be sure of their position.  So they applied  by  originating summons before the  High  Court  of Judicature  in  England for determination ’of  the  question whether Krishnan died domiciled in England.  The application was made under Order 11 of the Rules of the Supreme Court of England and notices of the proceedings were served upon  all the  parties to the present suit, the notices to the  minors being  served  on  their  natural  guardians.   The  parties appeared  before the High Court of Judicature in England  in

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the   proceedings   through   their   attorneys.    In   the proceedings,    two   affidavits   were   filed    by    the administrators, two by the first defendant and one (1) See s. 13 of the Civil Procedure Code. 65 each by Miss Hepworth, R, P. Nair (DW-3), T. C. George  (DW- 4),   Toleti  Kanakaraju  (DW-5),  S.  S.  Pillai,   N.   G. Gangadharan and P. K. P. Lakshmanan.  Miss Hepworth was also orally  examined  in court.  It was on the strength  of  the affidavits and the oral evidence that the court came to  the conclusion  that  Krishnan died domiciled in  England.   The question is, whether there are any circumstances in the case to  show that ex. 56 order was obtained by trickery  or  the court was misled in any way by the administrators either  by knowingly educing false evidence or procuring evidence which to their knowledge was false. Arksey  and  Mary Woodliff were firmly of the  opinion  that Krishnan  was domiciled in England.  There is no  reason  to think  that this opinion was formed under the  influence  of the first defendant.  They had the best opportunity to  know the  mind.  of  Krishnan and they were  the  most  competent persons to ’ say whether Krishnan died domiciled in England. There is not even a faint suggestion that they had  anything to  gain  by  making out that  Krishnan  died  domiciled  in England.   They  could  not  be said  to  have  adduced  any evidence  which  to their knowledge was  untrue.   There  is nothing  in the case to show that they did not make  a  true and full disclosure of all the material facts known to  them concerning  the domicile. of Krishnan when they  applied  by way of originating summons as required.  From the letter  of Arksey  it is clear that his opinion was that Krishnan  died domiciled   in  England.   Mary  Woodliff  as  the   private secretary  of Krishnan had the closest association with  him and  was in a better position than anybody else to  form  an opinion from the habits, tastes, actions, ambitions, health, hopes and. projects of Krishnan whether he was domiciled  in England.  Krishnan was living with Miss Hepworth.  We do not think  there was any one more intimate with  Krishnan,  than Miss  Hepworth.   It was not a matter of any moment  to  her whether Krishnan died domiciled in England or not.  She  did not  stand  to  gain  in any  manner  by  establishing  that Krishnan was domiciled’: in England.  She not only filed  an affidavit  in the proceedings but also was orally  examined. Can anybody characterize her evidence as procured or false ?      Domicile is a mixed question of law and fact and  there is  perhaps  no  chapter  in the  law  that  has  from  such extensive discussion received less satisfactory  settlement. This is no doubt attributable to the nature of the  subject, including as it does, inquiry into the animus it of  persons who  have  either died without leaving any clear  record  of their  intentions,  but  allowing them to  be  collected  by inference from acts often equivocal; or who, being alive and interested,  have  a natural tendency to give  their  bygone feelings  a  tone  and colour  suggested  by  their  present inclinations(1).  The traditional statement that, to  estab- lish  domicile,  there  must  be  a  present  intention   of permanent residence merely means that so far as the mind  of the person at the relevant time was concerned, he  possessed the requisite intention.  The relevant time varies with  the nature  of the inquiry.  It may be past or present.  If  the inquiry  relates to the domicile of the deceased person,  it must  be ascertained whether at some period in his  life  he had  formed  and retained a fixed and settled  intention  of residence in a given country. (1) One (1)  See Bell v. Kennedy, (1868) L.R. I Sc. & Div. 307, 322,

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66 has  to  consider  the tastes’.  habits,  conduct,  actions, ambitions,  health, hopes and projects of a  person  because they are all considered to be keys to his intention to  make a permanent home in a place(") If, therefore, Govindan,  the first  defendant,  despite  his statement  in  some  of  his letters that Krishnan had the intention to return to  India, made  the assertion that Krishnan died domiciled in  England after   taking  legal  advice  from  competent  lawyers   in Travancore,  it cannot be said straightaway that  the  first defendant  was  guilty  of any fraud.  We do  not  know  the contents  of the affidavits filed by the first defendant  in the  proceedings which culminated in ex. 56 order.   We  are left  to  conjecture  their contents.   The  copies  of  the affidavits  were not produced in this case.  Be that  as  it may,  we  think  that  the  statements  made  by  the  first defendant  in some of the letters written by, him  while  he was in England that Krishnan would return to India cannot be taken as conclusive of the fact that he entertained the view after taking legal advice from his lawyers that Krishnan was not  domiciled  in England and the  affidavits  filed  were, therefore, necessarily false.  At any rate, it is impossible to  say  that the High Court of Judicature  in  England  was tricked or misled to grant the declaration that Krishnan was domiciled  in England on the basis of the, affidavits  filed by  the  first  defendant.  There is nothing  on  record  to indicate  that it was the affidavits of the first  defendant which weighed with the High Court to grant the  declaration. In  these  circumstances  we think the High  Court  was  not justified  in  imputing  fraud to  the  first  defendant  in procuring ex. 56  order.  It was argued that the evidence adduced in this case  would show that Krishnan was not domiciled in England, that he did not renounce his domicile of origin and acquired a  domicile of choice and therefore, this Court should hold that ex.  56 order was obtained by fraud. The nature of fraud which vitiates a judgment was  explained by  De Grey, C. J. in The Duchess of Kingston’s Case(3).  He said  that though a judgment would be res judicata  and  not impeachable  from  within,  it  might  be  impeachable  from without. In other words, though it is not remissible to show that  the court was mistaken, it might be shown that it  was misled.  There is an essential distinction  between  mistake and  trickery. The clear implication of the  distinction  is that an action to set aside a judgment cannot be brought  on the ground that it has been decided wrongly, namely that  on the merits, the decision was one which should not have  been rendered,  but  that it can be set aside if  the  Court  was imposed upon or tricked into giving the judgment.      We  make it clear at the outset that we do not  propose to discuss the circumstances under which a domestic judgment can  be set aside or shown to be bad on the ground of  fraud or  to indicate the nature of grounds or facts necessary  to constitute fraud for that purpose.      it is now firmly established that a foreign judgment is impeachable for fraud in the sense that upon proof of  fraud it cannot be enforced (1)  See Cheshire’s Private International Law, 8th Ed., 164. (2)  See  the  Speech of Lord Atkinson in Winens  v.  A.  G. [1904 A.C. 287] (3)  Smith’s Leading Cases, 13th ed., 88, 641 at 651.                              67 by  action or operate as res judicata.  The leading case  on the subject in England is Abouloff v. Oppenheimer(1).   This was  an action brought on a Russian judgment  which  ordered

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the  return  of  certain goods unlawfully  detained  by  the defendant,  or  alternatively, the payment of  their  value. One defence was that the judgment had been obtained by fraud in that the plaintiff had falsely represented to the Russian Court that the defendant was in possession of the goods  the truth   being  that  the  plaintiff  himself  continued   in possession  of them throughout.  It was demurred  that  this was  an insufficient answer in point of law, since the  plea was  one which the Russian Court could, as a matter of  fact did, consider, and that to examine it again would mean a new trial  on  merits.  Lord Coleridge, C.J. said  that  English Court will have to decide whether the foreign court has been misled  by  the  fraud of the, plaintiff  as  the.  question whether  it was misled. could never have been  submitted  to it,  and never could have been in issue between the  parties and never could have been decided by it and, therefore,  the English Court was not retrying any issue which was or  could have  been  submitted to the determination  of  the  Russian Court.  The learned Chief Justice also said that "the  fraud of  the  person who has obtained the foreign  judgment,’  is none  the  less capable of being pleaded and  proved  as  an answer to an action on the foreign judgment in a  proceeding in  this country, because the facts. necessary to be  proved in  the English Courts were suppressed in the foreign  court by the fraud on the part of the person who seeks to  enforce the  judgment  which the foreign court was  by  that  person misled  so  as  to  pronounce.   Where  a  fraud  has   been successfully  perpetrated for the purpose of  obtaining  the judgment of a Court, it seems to me fallacious to say,  that because the foreign court believes what at the moment it has no  means of knowing to be false, the court is mistaken  and not  misled; it is plain that if it had been  proved  before the  foreign court that fraud had been perpetrated with  the view of obtaining its decision. the judgment would have been different from what it was". In  Vadala  v. Lawes 2 the plaintiff sued the  defendant  in Italy for the non-payment of certain bills of exchange which had  been accepted by the defendants’ agent acting  under  a power  of  attorney.  The principal defence  raised  in  the action  was that the bills, which purported to  be  ordinary commercial   bills,  were  given  in  respect  of   gambling transactions without the defendant’s authority.  The defence was  tried on its merits by the Italian court,  but  failed, and  judgment was entered for the plaintiff.  The  plaintiff then  brought an action in England on the judgment.   Again, no new evidence was adduced.  Lindley, L.J. said that if the fraud  upon the foreign court consists in the fact that  the plaintiff has induced that court by fraud to come to a wrong conclusion,  the  whole case can be  reopened  although  the court  in England will have to go into the very facts  which were  investigated, and which were in issue in  the  foreign court and that the fraud practised on the court, or  alleged to  have been practised on the court, was misleading of  the court  by evidence known by the plaintiff to be false.   The learned judge also said that there are two rules relating to these (1)  [1882] 10 Q.B.D. 295. (2) [1890] 25 Q.B.D. 310. 68 matters  which  have  to be borne in  mind,  and  the  joint operation of which gives rise to the, difficulty.  First  of all, there is the general rule that a party to an action can impeach  the  judgment for fraud and second,  there  is  the general  proposition which is perfectly well  settled,  that when  an  action  is brought  a foreign  judgment,  a  court cannot  go  into  the merits which have been  tried  in  the

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foreign  court and that one has to combine these  two  rules and apply them in the case.  He then said :               "The fraud practised on the Court, or  alleged               to  have been practised on the Court, was  the               misleading  of the Court by evidence known  by               the plaintiff to be false.  That was the whole               fraud.  The question of fact, whether what the               plaintiff had said in the Court below- was  or               was  not false, was the very question of  fact               that  had, been adjudicated on in the  foreign               court; and, notwithstanding that was so,  when               the Court came to consider how the two  rules,               to  which  I  have alluded,  could  be  worked               together,  they said: "Well, if  that  foreign               judgment was obtained fraudulently, and if  it               is necessary, in order to prove the fraud,  to               retry  the merits, you are entitled to  do  so               according  to  the law of  this  country".   I               cannot read that case (Abouloff’s case) in any               other way.  Lord Coleridge uses language which               I   do   not  think  is   capable   of   being               misunderstood."               The latest decision in England perhaps is that               of  the  Court Appeal in Syal  v.  Heyward(1).               The facts of the case were :               "On February 12, 1947, the plaintiff  obtained               against the defendants in India a judgment  on               a plaint in which he alleged that he had  lent               the  defendants rupees 20,000/-.  On  November               28, 1947, by order of a master, that  judgment               was  registered  as a judgment in  the  King’s               Bench  Division under s. 2(1) of  the  Foreign               Judgments (Reciprocal Enforcement) Act,  1933.               The  defendants applied for an order that  the               registration  of  the judgment  be  set  aside               pursuant to s. 4 ( 1 ) (a) (iv) of the Act  on               the ground that it had been obtained by fraud.               They  alleged that the plaintiff had  deceived               the court in India in that the amount lent  to               them by the plaintiff was rupees 10,800/-  and               not,  as  the  plaintiff  had  stated,  rupees               20,000/-  the  difference  being  made  up  by               commission  and interest paid in advance,  and               that thereby the plaintiff had concealed  from               the  Indian  court the  possibility  that  the               defendants  might  have a  defence  under  the               Indian usury laws."               Lord Cohen who delivered the judgment said  in               answer  to the proposition of counsel  to  the               effect  that where a judgment is sought to  be               set  aside on the ground of fraud,  the  fraud               must  have  been discovered by  the  applicant               since the date of the foreign judgment               (1)   [1948] 2 All E.R. 576.               69               "Be that as it may, counsel’s real  difficulty               is  in  his  fourth proposition.   For  it  he               relied  on Boswell v. Coaks (1884) 27 Ch.   D.               424   ;  subsequent  proceedings,  sub   nom.,               Boswell v. Coaks No. 2 (1894), 86 L.T. 365,  a               decision  of  the House of  Lords  applied  in               Birch v. Birch (86 L.T. 364).  These cases  no               doubt,  establish that in proceedings  to  set               aside  an  English  judgment  the   defendants               cannot ask for a retrial of the issue of fraud

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             as  between  them and the plaintiff  on  facts               known  to  them  at the date  of  the  earlier               judgment,,  but  in  cases  under  s.  4,  the               question is not one of fraud on the plaintiff,               but of fraud on the court, and it seems to  us               to be clearly established by authority binding               on  us  that, if the defendant shows  a  prima               facie case that the court was deceived, he  is               entitled to have that issue tried even though,               in  trying it, the court may have to go,  into               defences  which could have been raised at  the               first trial."               It would appear that the Court of Appeal  gave               the  widest scope to the doctrine of  Abouloff               v.  Oppenheimer  (supra) and Vadala  v.  Lawes               (supra).   It  would follow that  a  situation               like this may arise :               "A  sues  B in a foreign court in  respect  of               some  transaction  between  them.   B  has   a               defence,  but the disclosure of it may  expose               him to some criminal proceeding in the foreign               jurisdiction.   Accordingly he does not  raise               it,  and judgment is given for the  plaintiff.               If  A  subsequently  bring  sanction  on   the               foreign judgment in England, it is  presumably               open  to B to plead the defence which  he  did               not plead in the foreign court in support  of,               a  defence that judgment in the foreign  court               was obtained by fraud (e.g., by A’s  perjury).               It  is  submitted  that this, is  not  a  very               desirable result, although it seems to  follow               logically  from Syal v. Hevward.  It  is  sub-               mitted, with respect, that the Court of Appeal               Might have taken a narrower view of  Abouloff.               v.  Oppenheimer  and vadala. v.   Lawas,  and,               might,  have held, that the defence of   fraud               is  available to the defendant. where  he  has                             raised the issue in the foreign procee dings, in               which if has been tried on its merits, and  is               also   available   where  the,   facts   which               constitute  the fraud came to the  notice,  of               the defendant after the date of the  original’               proceedings.  However. the decision in Syal v.               Hevward goes far beyond this.(1) The courts in Canada take a different view.  In Woodruff  v. McLennan(2)  which  was an action brought in  Ontario  on  a Michigan judgment, the Supreme Court of Ontario held that it was not open ’to the defendant to: plead that the  plaintiff had  misled the Michigan court by. perjury, where the  proof of this allegation consisted substantially in tendering. the same evidence which had been before the Michigan court. This had  been followed by the Ontario Supreme Court and by  ,he, Supreme  Court  of Nova Scotia.. In Jacobs,  v..  Beaver(3), Garrow.  J.  distinguished the case where the  facts  which’ were tendered in (1)  65 Law quarterly Rev., 82, 84. (2)  (1887) 14 Ont.  A.R. 242. (3)  17 ont. L.  R. 496. 70 support  of  the  plea of fraud were  discovered  after  the hearing  of the original action.  In such a case they  could be property introduced in defence to a subsequent action  on the foreign judgment. So far as the American decisions are concerned, while it  is

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clean that a foreign judgment may be attacked on the  ground of  fraud in its procurement, it is not clear how  far  this doctrine  goes.  Abouloff v. Oppenheimer (supra) and  Vadala v.  Lawes (supra) were referred to by the Supreme  Court  of the United States in Hilton v. Guvot (1) where Gray J.  said :  "Whether  those decisions can be followed  in  regard  to foreign judgments, consistently with our own decision as  to impeaching  domestic judgments for fraud, it is  unnecessary in  this  case to determine".  The matter  is  open,  though Goodrich points out that there is no American case, in which the  plea of fraud has permitted reexamination of  the  very matters determined in the original Suit(2). According  to  Cheshire,  the effect  of  the  judgments  in Abouloff v. Oppenheimer, Vadala v. Lawes and Syal v. Hevward (supra)  is  that the doctrine as to the  conclusiveness  of foreign   judgments  is  materially  and  most   illogically prejudiced(1). Although  there  is general acceptance of the  rule  that  a foreign  judgement can be impeached for fraud, there  is  no such  accord  as  to what kind of  fraud  is  sufficient  to vitiate a foreign judgment.  Must it be only fraud which has not  been  in issue or adjudicated upon by the  court  which gave the judgment ? Must the court in the subsequent  action where fraudulent ’Misleading of the foreign court is alleged refrain from going so far in its search for such fraud as to retry  the  merits  of  the  original  action  ?  The   wide generality of the observations of Coleridge’ C.J in Abouloff v. Oppenheimer and of Lindley, J. in Vadala v. Lawes (supra) in  favour  of the vitiating effect of fraud  to  the  utter disregard  of the, res judicata doctrine  certainly  departs from  the usual caution with which the courts  proceed  when dealing  with  a subject, the law of which is still  in  the making.   We  have already referred to what  Coleridge  C.J. said  in Abouloff v.  Oppenheimer namely, that the  question whether the foreign court was misled in pronouncing judgment never could have been submitted to it, never could have been in  issue  before it and, therefore, never could  have  been decided  by it.  This is, generally speaking, true.  But  it is  also  axiomatic  that the  question  of  credibility  of witnesses,  whether they are misleading the court  by  false testimony  has  to be determined by the  tribunal  in  every trial  as  an  essential  issue  decision  of  which  is   a prerequisite  to  the decision of the main  issue  upon  the merits.   A judgment on the merits,  therefore,  necessarily involves  a  res judicata of the  credibility  of  witnesses insofar  as  the evidence which was before the  tribunal  is concerned.  Thus, when an allegation is made that a  foreign judgment  is  vitiated because the  court  was  fraudulently misled  by perjury, and issue is taken with that  allegation and heard, if the only evidence available to substantiate it is that which was used in the foreign court, the result will be  a retrial of the merits.  It is hard to believe that  by his  dictum  Lord  Coleridge  ever  intended,  despite   the abhorrence with which the Common Law regards fraud, to (1)  159 U.S. 113, 210. (2)  65 Law Quarterly Rev. 82, 85. (3)  see "Private International Law," 8th Ed.  P. 654. 71 revert  to the discredited doctrine that a foreign  judgment is  only  prima  facie evidence of a debt  and  may  be  re- examined  on  the merits, to the absolute disregard  of  any limitation that might reasonably be imposed by the customary adherence  to the res judicata doctrine(1).  Duff, J.   with his  usual  felicity  put the point  thus  in  Macdonald  v. Pier(2) :

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             "One is constrained to the conclusion upon  an               examination  of the authorities that there  is               jurisdiction  in  the court  to  entertain  an               action  to set aside a judgment on the  ground               that  it  has been obtained  through  perjury.               The  principle  I conceive to be this  :  such               jurisdiction exists but in the exercise of  it               the  court will not permit its process  to  be               made  use of and will exert the  utmost  care.               and caution to prevent its process being  used               for  the purpose of obtaining a retrial of  an               issue  already determined, of an  issue  which               transport  in rem judicature, under the  guise               of impugning a judgment as procured by  fraud.               Therefore  the perjury must be in  a  material               matter and therefore it must be established by               evidence not known to the parties at the  time                             of the former trial." As  Garrow, J. said in Jacobs v. Beaver (supra),  the  fraud relied  upon must be extrinsic or collateral and not  merely fraud which is imputed from alleged false statements made at the  trial  which were met with counter-statements  and  the whole adjudicated upon by Court and so passed into the limbo of  estoppel  by  the judgment.   That  estoppel  cannot  be disturbed  except  upon  allegation and  proof  of  new  and material  facts which were not before the former  court  and from  which are to be deduced the new proposition  that  the former  judgment was obtained by fraud. What, then, are  the new  materials  before  us  to say that  ex.  56  order  was obtained  by  fraud ? Do the letters written  by  the  first defendant  to Padmanabhan while he was in England  or  those written  by Krishnan to Padmanabhan, first defendant or  his niece point unequivocally to the fact that Krishnan intended to return to Travancore and settle down permanently ? Krishnan  had  once the intention of coming  back  to  India after completing his studies but, after 1946, he had changed his  intention.  In Ex. 23 letter written to Padmanabhan  on January  6,  1932,  Krishnan complains  of  the  conduct  of Padmanabhan  in  not sending him money for  prosecuting  his studies.   In Ex. 24 letter dated March 16, 1933,  again  he reiterates  his  demand  for money and says  :  "the  ardent desire  of you and people of your opinion is that  I  should not  come  back to the country. I want to come  back  to  my country  and  that  after  passing  all  the  examinations". Likewise, in Exs. 25 and 26 dated August 16, 1933 and August 22,  1933 respectively, he repeats his demand for money  and his desire to come back, especially to see his sick  mother. In Exs. 27 and 28 letters dated April 11, 1934 and April 27, 1934 respectively, he again presses his demand for money and ardent  desire  to  come to Travancore  to  see  his  ailing mother.   In  Ex. 29 letter dated June  19,  1936,  Krishnan blames  Padmanabhan and the members of the family for  their behaviour in not sending him money which would have (1)  See Conflict of Laws, Foreign Judgment as  Defence-Note in 8 Canadian Bar Review 231 by Horace E. Read. (2)  [19231 S.C.R. 107, 120-121. 72 enabled him to come to Travancore and see his mother who had died  in  ;the meanwhile.  We find a change of  attitude  in Krishnan  from his letter written to his niece Chellamma  on April 4, 1939 (Ex. 5) wherein be states that be has  decided to  stand on his own legs.  He says in the letter : "When  I have  saved enough money to lead a respectable life at  home will come back." On October 23, 1939 (Ex. 7) Krishnan writes to  Padmanabhan demanding the income from his share of  pro-

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perties.   He  asks  "Where is my income  ?";  he  wants  an account   of  the  "family  jewels’  and   threatens   legal proceedings  in case his demand is not satisfied.   In  that letter he addresses his brother for the first time as  "dear sir".  The same demand is repeated in Ex. 30 dated  November 6, 1939.  On November 16, 1939, Krishnan writes Ex. 6 letter to Chellamma saying that he will take revenge on Padmanabhan and   that  he  will  come  back  within  10  years.    Mrs. Padmanabhan  died  in 1941.  Govindan, the  first  defendant went to England in 1946.  Exs. 8 and 10 written on the  same day i.e. July 1, 1946, by the first defendant to Padmanabhan would indicate that Krishnan was making good income, that he would  return to Travancore within 5 years.  In Ex.   1  (a) letter  Krishnan states to Padmanabhan on July 1, 1946  that he  is reluctant to give up his practice and waste his  time in Trivandrum and that is the reason why he wants to stay in England but he hopes to return and settle down in Trivandrum permanently.  In Ex. 2 letter dated July 21, 1946, the first defendant informed Padmanabhan that Krishnan says that he is against the idea of coming to India and returning to England and  that  he is bitter to Padmanabhan for not  sending  him money  when  he was in need.  This is in answer  to  ex.  46 letter  sent by Padmanabhan to the first  defendant  stating whether Krishnan can be persuaded to come to Travancore  and return  to England., In Ex. 9 letter dated February 4,  1948 sent by the first defendant to Padmanabhan from  Edinburgh,, it is stated that Krishnan is willing to spend money for the first defendant’s education but he is reluctant to send  any money  to Padmanabhan and that Kirshnan might  be  returning after, 5 years as he is finding, it difficult to leave  Miss Hepworth.  On March 11, 1948, Padmanabhan sent ex. 47 letter to the first defendant saying that Krishnan did not reply to his (Padmanabhan’s) letter s. In his letter dated August  3, 1948 (ex. 3) to Padmanabhan, Krishnan asks the question  bow much  money Padmanabhan was’ holding in  Krishnan’s  account and that.his idea is to return within one year and to. buy a plot  and  build a house in Trivandrum.  In  ex.  45  letter dated  January  23,  1949 written to  the  first  defendant, Padmanabhan  asks the former to bring Krishnan with  him  as the family members are all anxious to see Krishnan.  In  ex. 4 letter dated February 10, 1949, the first defendant states that  Krishnan  is Retting a decent income, and  he  is  not willing to give it up and come home, that he hopes to return after  5 more years for ever. In ex. 49 letter  dated  March 29.  1949 written to the first defendant,  Padmahabban  says that  even if Krishnan is employed, it is possible  for  him to’  come to Trivandrum and then return to England  as  they all  desire  to  see him.  In  September,  1949,  the  first defendant returned to Travancore Krishnan did not  accompany him. It would appear that till 1939 Krishnan had the intention to return  to  India.   But  when  he  acquired  a  comfortable practice and purchased 73 a  house in Sheffield, his intention changed.   Although  he was  saying in some of his letters after 1939 that he  would return  and  settle down in Travancore, that  was  with  the predominant  idea of getting from Padmanabhan his  share  of the  income.   If  he had made it clear that  he  would  not return, the chances of Padmanabhan accounting for the income he  had  been  taking from his  (Krishnan’s)  share  of  the properties  were remote.  Exhibits 12, 13, 14, 15,  16  and. 17,  all  written  by  Miss  Hepworth  after  the  death  of Krishnan,  make  it  abundantly  clear  that  Krishnan   had absolutely  no intention of returning to India.  In  ex.  15

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letter  she  says  : "All I can say is  that  he  (Krishnan) repeatedly  said that I shall never go back to  India".   In ex. 17 letter she says that she suggested to Krishnan for  a holiday  in  India,  but he said  never.   As  Cheshire  has said(1)               "It  is  impossible to lay down  any  positive               rule with respect to the evidence necessary to               prove intention.  All that can be said is that               every  conceivable  event and  incident  in  a               man’s  life  is a relevant and  an  admissible               indication  of his state of mind.  It  may  be               necessary  to examine the history of his  life               with  the most scrupulous care, and to  resort               even  to hearsay evidence where  the  question               concerns  the  domicile  that  a  person,  now               deceased, possessed in his lifetime.   Nothing               must  be overlooked that might  possibly  show               the  place which he regarded as his  permanent               home  at  the relevant time.  No fact  is  too               trifling to merit consideration." Nothing  can  be neglected which can possibly  indicate  the bent of Krishnan’s mind.  His aspirations, whims, prejudices and financial ,expectation, all must be taken into  account. Undue  stress cannot be laid upon any single  fact,  however impressive it may appear when viewed out of its context, for its importance as a determining factor may Well be minimised when considered in the light of other qualifying event.   It is  for  this reason that it, is impossible to  formulate  a rule  specifying   the  weight,to  be  given  to  particular evidence.  All that can be gathered from, the,  authorities, in this respect is that more reliance is placed upon conduct than  upon  declaration  intention.  "It  is  not  by  naked assertion,  but by deeds and acts that a domicile is  estab- lished" (2). We  are of the View that the declaration by Krishnan in  the letters   written  after  1939  that  he  would  return   to Travancore  did  not  contain the  real  expression  of  his settled  intention.  These declarations cannot be  taken  at their face value.  They are interested statements design  to extract from Padmanabhan the share of his income.  They seem to  us  to  represent  nothing  more’  than  an  expectation unlikely  to  be fulfilled.  Although 10 years, 5  years,  1 year  and then 5 years were fixed as the limit from time  to time  for  his return, he did not take any  active  step  in furtherance of his expressed intention.  Lord Buckmaster has said (3).               "Declarations  as  to  intention  are  rightly               regarded  in  determining the  question  of  a               change of domicile but they must               (1) See International Law,               (2) Mullen v. Wadsworth; 8th Ed. 164. (2)  See               Mc  [1889] 14 A. C. 631 at 636.               (3)   See Ross, v. Ross [1930] A.C. I at P. 6.               74               be examined by considering the person to whom,               the  purposes for which and the  circumstances               in which they are made, and they must  further               be fortified and carried into effect by conduct               and   action  consistent  with  the   declared               expression". We  think  that the declarations made by  Krishnan  to  Miss Hepworth  from time to time represented his true  intention. His  conduct  and action were consistent with  his  declared intention  to her.  The statements made by Krishnan  in  the letters referred to were made from other considerations  and

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circumstances and were not fortified and carried into effect by conduct or action consistent with the statements.  As  we said,  the question of domicile is a mixed question  of  law and fact.  The High Court did not deal with the question  of domicile  of Krishnan except that it said that some  of  the letters   of  Krishnan  and  Govindan  show  that   Krishnan expressed  his  intention  to  return  to  Travancore   and, therefore,  for that reason also, ex. 56 order was  obtained by fraud. "The fraud which vitiates a judgment must generally be fraud of  the party in whose favour the judgment is  obtained"(1). It  was the administrators who obtained ex. 56 order and  by no  stretch  of  imagination  could it  be  said  that  they practiced  any fraud by adducing evidence which  they.  knew was  false  or induced any person or witness to  give  false evidence or file any false affidavit.  Nor could it be  said that  the  English  Court  was  misled  by  what  the  first defendant  said about the domicile of Krishnan,  as  persons who  were  more  competent to speak about  the  domicile  of Krishnan had filed affidavits and tendered oral evidence  to the effect that Krishnan died domiciled in England. If  that  be  so,  the  further  question  is  whether   the proceedings in which ex. 56 order was obtained were  opposed to  natural justice.  It was contended that notices  of  the proceeding which culminated in ex. 56 order have been served on the minors through their natural guardians, that  natural guardians  were  not  appointed as guardians  ad  litem  and therefore,  the  proceedings were opposed to  principles  of natural  justice.  In other words, the argument  was,  that, since  the  natural  guardians on whom the  notices  of  the proceedings  were served were not appointed as guardians  ad litem of the minors, they had no opportunity to contest  the proceedings  on behalf of the minors and so the  proceedings were opposed to natural justice. We  do  not  think  that there  is  any  substance  in  this contention.  It is extremely difficult to fix with precision the  exact cases in which the contravention of any  rule  of procedure   is sufficiently serious to justify a refusal  of recognition  or  enforcement of a foreign judgment.   It  is difficult  to trace the delicate gradations of injustice  so as  to  reach a definite point at which it  deserves  to  be called  the  negation of natural  justice.   The  expression "Contrary to natural justice" has figured so prominently  in judicial  statements that it is essential. to fix its  exact scope  and meaning.  When applied to foreign  judgments,  it merely  relates to the alleged irregularities  in  procedure adopted by the (1)  see  Dicey and Morris on the Conflict on Laws, 8th  Ed. 1009. 75 adjudicating court and has nothing to do With the merits  of the  case.   If the proceedings be in  accordance  with  the practice  of the foreign court but that practice is  not  in accordance  with natural justice, this court will not  allow it to be concluded by them.  In other words, the courts  are vigilant to see that the defendant had not been deprived  of an  opportunity  to present his side of  the  case(1).   The wholesome  maxim  audi  alteram  partem  is  deemed  to   be universal,   not   merely  of  domestic   application,   and therefore,  the only question is whether the minors  had  an opportunity  of  contesting the proceeding  in  the  English court.   If notices of the proceedings were served on  their natural guardians, but they did not appear on behalf of  the minors  although they put in appearance in, the  proceedings in their personal capacity, what could the foreign court  do

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except  to appoint a court guardian for the  minors?   Under Order  32  of  the  Civil Procedure  Code,  if  the  natural guardian  is unwilling to act as guardian for a minor  in  a suit,  the court can appoint an officer of the court  to  be such  guardian.  In effect, when the natural guardians  were given notice of the proceedings on behalf of the minors,  an opportunity was given to the minors through those  guardians to  contest the proceedings.  All that is required by  rules if  natural  justice  is  that  minor  should  be  given  an opportunity  to  contest through  their  natural  guardians. Even  if  there  was any breach of  the  rule  of  procedure prevailing   in  the  forum  where  the   proceedings   were conducted,  that would not be material, as what we  have  to see  is  whether  the proceedings  have  been  conducted  in substantial   compliance  with  the  prevailing  notion   of fairplay.   And,  when the natural guardians  evinced  their intention not to contest the proceedings by not putting  any appearance on behalf of the minors, we think the requirement of natural justice was satisfied when the court appointed an officer  of the court to be guardian ad litem of the  minors in the proceedings. Counsel  for  the respondents raised a new point  not  taken either before the trial court or High Court and that is that as  the  minors did not submit to the  jurisdiction  of  the English Court, that court had no jurisdiction so far as they were concerned and the declaration in ex. 56 order would not operate as res judicata as respects them. Now,  it  is  a  well  established  proposition  in  private international   law   that  unless  a  foreign   court   has jurisdiction   in  the  international  sense,   a   judgment delivered   by  that  court  would  not  be  recognized   or enforceable  in India.  The guardians of the minors did  not enter appearance on behalf of the minors and so it cannot be said that the minors through the guardians submitted to  the jurisdiction of the English Court. The practice illustrated by Order 11 of the English  R.S.C., under which the courts of a country assume jurisdiction over absentees,  raises the question whether a  foreign  judgment given  in these circumstances will be recognized  elsewhere. The authorities, so far as they go, are against recognition. The  question  arose in Buchanan v. Rucker(2) where  it  was disclosed that by the law of Tobago, service of process. (1)  see  Cheshire’s Private International Law, 8th  Ed.  p. 656. (2)  (1808) 9 East 192 76 Might be effected upon an absent defendant by nailing a copy of the summons on the door of the court house.  It was  held that  a judgment given against an absentee after service  in this  manner was an international nullity having  no  extra- territorial  effect.  Indeed, the suggestion that it  should be  actionable in England prompted Lord Ellenborough to  ask the question               "Can  the island of Tobago pass a law to  bind               the  rights  of the whole world  ?  Would  the               world submit to such an assumed jurisdiction ?               (at p. 194).               In  Schibsby v. Westenholz(1), a judgment  had               been  given by a French Court  against  Danish               subjects  resident in England.   The  question               was :               The  mode  of citation adopted  in  accordance               with  French law was to serve the  summons  on               the Procurer Imperial, the rule being that  if               a  defendant did not appear within  one  month

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             after  such service, judgment might  be  given               against  him.   Although not required  by  the               law, it was customary in the interests of fair               dealing   to  forward  the  summons   to   the               consulate  of the country where the  defendant               resided,  with instructions to deliver  it  to               him if practicable.  In the instant case,  the               defendants were notified of the proceedings in               this  manner,  but they failed to  appear  and               judgment was given against them. It was held that no action lay upon the judgment.  From  the nonappearance of a defendant who is not otherwise subject to the  jurisdiction of the foreign court it is  impossible  to spell out any such duty. The true basis of enforcement of a foreign judgment is  that the  judgment imposes an obligation upon the defendant  and, therefore,  there must be a connection between him  and  the forum sufficiently close to make it his duty to perform that obligation.   If  the  principle upon  which  judgments  are enforceable been- coming, the Court of Queen’s Bench In  the above case said that,, having regard to the English practice of service out of the jurisdiction, it would have reached  a different conclusion. It,  is  not  without significance, however,  that  in  this general context, the Court of Appeal in Travers v. Holley(2) acted  on  the  basis  of reciprocity  and  held  that  what entitles an English court to assume divorce jurisdiction  is equally  effective, in the case of  a foreign court.   In  a later case (Re Trepca Mines Ltd.(3) ; Hodson, L.J.  observed that  Travers v. Holley ( 2 ) was "a decision limited  to  a judgment  in rem in a matter affecting  matrimonial  status, and it has not been followed, so far as I am aware, in  any. case  except  a matrimonial case".  See  Cheshire’s  Private International Law, 8th ed., pp. 634-635. The  question  was again considered in  Societe  Cooperative Sidmetal  v. Titam International Ltd.(4). The facts  in  the case were (1) (1870) L.R. 6 Q.B. 155. (2)  [1953] 2 All E.R. 794. (3)  [1690] 1 W.L.R. 1273, 1281-82. (4)  [1966] 1 Q.B. 828. 77               T.,  an  English company, sold  to  a  Belgian               company, S., a quantity of steel and it Was  a               term  of the contract that T. would  ship  the               steel to an Italian company, who had purchased               it  from  S.  The  Italian  company  was   not               satisfied  with the quality of the  steel  and               brought proceedings in a Belgian court against               S.  S.  joined  T. to  those  proceedings  and               served  notice  of the proceedings  on  T.  in               England.   T. took no part in the  proceedings               and did not submit to the jurisdiction of  the               Belgian   Court.   The  Belgian   court   gave               judgment  for the Italian company  against  S.               and  for  S.  against T.  S.  registered  that               judgment    under   the   Foreign    Judgments               (Reciprocal  Enforcement)  Act, 1933,  in  the               Queen’s Bench Division, T. issued a summons to               have the registration set aside on the  ground               that the Belgian court had no jurisdiction  in               the  circumstances  of the  case  within  the,               meaning of s. 4 of the Act.               Widgery, J. said that the true reason on which               a  foreign judgment is enforced in England  is

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             that  the  judgment  of  a  foreign  court  of               competent  jurisdiction  over  the   defendant               imposes a duty or obligation on the  defendant               to pay the sum for which the judgment is given               which  the courts in the country are bound  to               enforce  and  consequently any-’  thing  which               negatives  that duty or forms a  legal  excuse               for  not  performing  it is a  defence  to  an               action.  He observed               "It  appears to me to have been recognised  by               the  common law that the enforcement  in  this               country  by  action  of  a  judgment  obtained               abroad  depended  primarily upon  whether  the               defendants had a duty to observe the terms  of               the foreign judgment."               The Court then considered the case of  Travers               v.  Holley (supra) and said, since the  reason               for  enforcement  of foreign judgment  is  not               coming but the existence of jurisdiction  over               the   person,  a  judgment  obtained   without               jurisdiction in foreign court in circumstances               in   which   English   court   would    assume                             jurisdiction cannot be recognized.               With  the  growth of internationalism,  a  new               approach to the question has been advocated by               O. Kahn-Freund(1) :               "Underlying  the  first meaning,  the  one  of               Travers,  v. Holley, there is  something  like               the  moral principle : ’Do unto others as  you               would want others to do unto yourself’,  some-               thing,  if  you  like, a  little  like  Kant’s               Categorical    Imperative.    As    I    claim               jurisdiction  in these circumstances,  I  must               acknowledge  your  right  to do  so  as  well,               because  I  cannot  deny  that  the  principle               underlying my course of action is a  principle               on which any other member of the community  of               nations  ought to act.  I am not  saying  that               such  lofty thoughts were necessarily  present               to the minds of the judges who               (1)   See  "The Growth of Internationalism  in               English   Private  International,  Law",   The               Hebrew  University of Jerusalem  Lionel  Cohen               Lectures, Sixth Series, January, 1960, pp. 29-               30.               78               decided  the  case.  Perhaps  they  were  more               inspired    by    the    horror     matrimonii               claudicantis, the need for preventing  limping               marriages of which I think English specialists               in  marriage law such as Hodson L.J. are  very               much aware." Mr.  Sarjoo  Prasad  for  the  appellant  contended  that  a judgment  or  order  declaring domicile of  a  person  is  a judgment  in  rem and in the proceedings to obtain  such  an order  of  judgment,  notice need not  be  served  upon  all persons  affected  by the declaration or  determination.   A judgment in rem determines the status of a person  or,,thing and  such a judgment is conclusive evidence for and  against all  persons  whether parties, privies or strangers  of  the matter  actually decided.  A judgment in rem determines  the "destiny  of the res itself" and binds all persons  claiming an  interest in the res." Mr. Sarjoo Prasad  submitted  that although  domicile in the abstract is not res it savours  of res  like   marriage  and,  therefore,  a  determination  or

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declaration of the domicile of a person is a judgment  which is  binding on the whole world and any failure to serve  the notices upon the minors or their failure to appear in  court in  pursuance  to  the  notices  is  quite  immaterial   for adjudging the question of jurisdiction. The difference between a judgment in personam and a judgment in rein was pointed out by Chief Justice Holmes in Tyler  v. Judges of the Court of Registration(1) where he said :               "If  the  technical object of the suit  is  to               establish  a  claim against  ’some  particular                             person,  with  a judgment which  gener ally,  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,  how  an  inconsistent               interest.  the  proceeding  is  in  rem.   All               proceedings,  like  all  rights,  are   really               against persons.  Whether they are proceedings               or  right  in  rem depends on  the  number  of               persons  affected.  Hence the res need not  be               personified  and  made a party  defendant,  as               happens  with the ship in the  Admiralty.   It               need  not even be a tangible thing at all,  as               sufficiently  appears  by  the  case  of   the               probate of wills.  Personification and  naming               the res as defendant are mere symbols, not the               essential  matter." Section  41  of  the Evidence Act speaks  only  of  a  final judgment,  order  or  decree of a competent  court,  in  the exercise  of probate, matrimonial, admiralty  or  insolvency jurisdiction,  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.  We (1)  (1900) 175 Mass. 71.                              79 are  not quite sure whether judgments or orders rendered  in the exercise of any other jurisdiction would have the effect of  a  judgment in rem.  We were referred  to  no  authority wherein  it  has  been  held that  an  order  declaring  the domicile of a person under Order II of R.S.C. of England  is a judgment in rem and that persons affected need not  submit to  the  jurisdiction of the foreign court which  makes  the declaration  if  otherwise  they  are  not  subject  to  its jurisdiction. In  this  view, we do not think that the ex.  56  order  was valid  as ,against the minors.  The position, therefore,  is that  so far as the major respondents in ex. 56  proceedings were  concerned,  the  court  had  jurisdiction  since  they submitted to its jurisdiction and the decision of the  court would  operate  as res judicata.  But, so far as  the  minor respondents  to those proceedings are concerned, we  are  of the  view,  on  the evidence in this  case,  which  we  have already discussed in detail, that Krishnan had no settled or definite  intention to return to Travancore and that, as  he

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was  a resident in England and as his acts and conduct  were consistent only with his intention to make it his  permanent home, he died domiciled in England. We  think  that the High Court was right in  its  conclusion that  the sale proceeds of the house in Sheffield has to  be distributed accordingly to the English law.  To this  extent we uphold the judgment of the High Court but set it aside in other respects. In  the  result, we hold that the succession to  the  amount specified  in Schedule-C minus the amount  which  represents the  sale proceeds of the, house property in Sheffield  must also be governed by English law and that the amount must  be distributed between the first and second defendants in equal shares.  We allow the appeal but make no order as to costs. P.B.R. Appeal allowed. 80