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SANKARAN GOVINDAN

r.

LAKSHMI BHARATHI & OTHERS

April

15, 1974

[K. K.

MATHEW AND A. ALAGJRISWAMI, JJ.]

Private International Law .

57

Domicile-Decision of a foreign Court when would operate us res judicata.

D(lrr.icile-A mixed question of law nnd fact-T t>sts for de/f:n1!i11ing do111i­

Cile-Distinction between mistake and trickery-Fraud-What const1tute1.

Minors---Notice of proceedings served on mitwrs through guardians not

appointed

ad litem-ff opposed to principles of

natural justice.

C "Contrary to natural justice"-What fr means in relation to foreign Judg-

1nents.-

Res Judicata---Determination of domicile if would operate as res judiCata

if minors did not submh to the jurisdiction of the Coµrt.

Res Judicata-A Judgment on merits involves res judicata of credibility of

witnems.

D JudgmenJ in rem-Effect of.

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. K went to England in 1920 for higher studies in medicine and thereafter he

practised there. He died ill 1950 leaving b;!hind 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 iDStitution

of the suit proceedings were started in England for obtaining Letters of Admi·

nistration of the estate of K as there was likelihood of dispute as respects the

domicile of K The Administrators took out originating sununons 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 to·

gether with the moneys were handed over to defendants 1 and 2. After e~ 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 Schedulci C.

The first defendant contended that Schi;!dul:: C amount was not liable to be divi·

ded among the partii:s to the suit, that as K died domiciled in Ei:lgland succession

to the movables was governed by English Law and that defendants 1 and 2 alone

were entitled to the same as next of kin of the deceased. The trial court rejected

this contenuon and directed partition of the amount according to Travanrore

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

fudlcata on the question of domicile of K..

On appeal to this Court by defendant no. I 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 iu<;tice in as much as the notices of the proceedings were served on the

minors through their natural guardians, who were not appointed guardians ad

litPm and (3) Whether ex. 56 order would operate as res fudicata since the minors

did not submit to the jurisdiction of the court.

Al'owing the appeal,

. :HtLD ; Succession tQ the amount specified in Schedule C must be ~overned

by the English I.aw and the amount must be distributed between the litst aad

second defendants in e<1ual shares.

58 SUPREME COURT REPqRTs [1975] l s.c.R.

\l)(a) It is a well established principle of private international law that if a A

forei.gn JUdgment was obtained by traud or if the proceedings in which it was

obtained were opposed

to natural

Justke, if will not operate ~ res judlca1a.

Section 13 CPC referred to.

.

(b) The

High Court was not justified in imputing fraud to the first defendant

IA procunng ex. 56 order .

. It is imp'?Ssiblc to say that the High Court of Judicature in England was _B.

tncked or misled to grant the-declaration that the deceased was domiciled in •

England on the b""is of the aJlidavits filed by the first defendant

(c) pomicile 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 eatisfac-

tory settlement. This is, no doubt, attributable to the nature of the subject in­

cluding as it doe&, inquiry into animus of persons who have Cither died without

!eaving any clear record of their intentions, but allowing them to be collected by

tnference from acts often equivocal; or who b:!ing alive and interested, have a C

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

pre!ent intention of permanent residence merely means that so far as tho mind

of the person at the relevant timo was concerned, he possessed the requisite inten­

lion. The relevant t.J.me 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 comider

the tastes, habits, conducts, actions, ambitions, health, hopes and projects of a

per!On because they are all considered to be keys to his intention to make a per-

manent home in a place.

Bell v. Kennedy (1868) L.R. I Sc. & Dtv. 307, 322., Cheshire's PriYale lmer·

1uuional Law, 8th ed. 164., The Spuch of Lord Atklnso11 in Winans v. A.G.

(l!I04) A.C. 287, 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.

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(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 can-

not be brought on the ground that it has been decided wrongly, namely that on F

the merits, the decision was one '"·hich 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

j1udgment is impeachable

for fraud in the sense that upon proof of fraud it cannot be enforced by action

or operate

as

res Judicata.

Aboulo{! v. ()ppentheirner, (1882) 10 Q.B.D. 295 Vadala v. Lawes (1890)

25 Q.B.D. 310., Sl'al v. Hevward, (1948) 2 All E.R. 576., Woodruff v. Moleruum,

( 1887) 14 Ont. A.R. 242, Jacobs v. Beaver, 17 Ont. L.R. 496., Hilton v. Guvot,

159 U.S. 113. 210. referred to.

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(f) It is axiomatic that the question of credibility of witness~. whether

they are misleading the court by false. tes!imony, ha~ .to be detei;:m1ru;d by the

tribunal in every trial as an essential issue, dec1s1°? of "!h1ch •s a pre­

requisite to the decision of the main issue upon the merrts. ~ ~udgment .on the

merits therefore neces3arily involves a res judicata of the credibility of witnesses

in so far as the' evidence which was before the tribunal is concerned. H

{g) When an allegation is made that a foreign judgment ~ vitiated ~

the court was fradulently misled by perjury, and issue is take? ~th that al!C1ation

and heard, if the only evidence available to substantiate 1t ts that which was

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SANKARAN V. LAKSHMI 5~

t used in the foreign Court, the result will be a retrial on the merits. The frau(t

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

hole 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

\Vere not

before the former court and from which are to be deduced the new

proposition

!hat the former judgment was obtained by fraud.

B. Jacob v. Beaver 17 Ont L.R. 496 referred to .

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Co11flict of Laws, f~oreign Judgment as Defence. l~lote i!J 8 Canadian Bar

1-?.tTiew 231 by Horace E Road; referred to.

(h) It is impossible to foqnulate a rule specifying the weight to b: given.

ro particular evidence. AU 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 th.at a domicile

i~ 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., Ross v. Ross

[1930] A.C., at p. 6.

(i) "The fraud which vitiates a judgment must generally be fraud of the

party in whose favour tho judgment is obtained." It was the administrators­

who obtained, the order of the High Court and by no stretch of imagination

c-ould 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 wa. misled

by what tho first defendant said about the domicile of K, as persons who are

more competent to speak about his dbmicile bad 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 accordanco with the practico of the foreign court but that

practice is not in accordance with the natural justice, this Court will

not allow it tcr be concluded by them. The wholesome maxim audi

ldt.e.ram partenz 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

<Jee is whether

the proceedings have been conducted in substantial compliance with the prevail­

ing 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

Utem 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 enforc.eable 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 submitkd to the

jurisdiction

of the English Court.

(b) A judgment in rem determines the status of a

person or tiling and such

a judj:mcnt is conclusive evidence for and against all persons whether parties"

SUPREME COURT REPORTS [1975) 1 S.C.R.

privies or strangers of the matter actually decided. A judgment in rent deter-A

mines the "destiny of the res itself'' and binds all persons clain1ing an interest

in the res. (78 B-CJ

So faf as the major respondents before the 1-ligh Court of Judicature in ~

England were concerned the Court had jurisdiction :}ince they submitted to its

juriSdiction

and the decision of the court would

operate as res ;udicatn. But,

so far as the minor respondents to those proceedings \.Vere concerned on the

evidence in this case K had no settled or definite intention to return to Travancore B

and that as he was a resident in England and a<:i his acts and con<luct were con- _,,,

sistent only with his intention to make it his permanent home, he died domiciled

ln England. (79 B·DJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1887 of 1961.

Appeal from the Judgment and Decree dated the 20th D>occrnber.

1963 of the Kerala High Court at Erankulam in A. S. No. 54 of C

1959.

Sarjoo Prasad with Mis Sardar Balwdur and Vis/mu Bahadur

'Saliaraya, for the appellant.

Mr. W. S. Barlingay and Mr. D. N. Misra for the respondent.

ARGUMENTS

For

tile appellmus : (1) Approach of the Courts below is wrong

>ince they should have first considered whether the judgment of

English Court was not binding and should have gone into the ques·

tion of domicile onlc)' 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 tneir

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

informa­

tion to the Solicitor. The appe!lant 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 snit 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 nothin~

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 keot

postponing the

date of his return 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.

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SANKARAN v. LAKSHMI (Mathew, /.) 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 ac­

quire 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 es­

pecially 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 /item by

the English Court, who

understood the interests of tk infants and was capable of guardin~

their interests. Not appointing a prclper 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 fotmally the administrators were the palintiffs in

the English Court, it was at the instance of the appellant that these

proceedings were initiated. The appellant knew well that the deceas­

ed 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

MATHEW, 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 Travancorc Ezhava Act and the

dispute between the parties now

is concerned with the question of succession to the sale proceeds of the movables and other moneys

included in Schedulc.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'i death,

62

SUPREME COURT REPORTS [1975] l S.C.R.

his elder brother Padmanabhan did not send him any money and,

therefore, Krishnan had to

find his own resources for prosecuting

his studies. He received considerable encouragement and linancial

help for carrying on his studies from an elderly English lady

hy

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

gocid 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-Princc of Wales Road with Miss

Hepworth. He had, at the

time of his death, a private secretary

named Mary

Woodliff.

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B

The first defendant-appellant came to England both for the pur-C

pose of qualifying himself for F.R.C.S. and for taking back Krishnan

to India. He prosecuted his studies in E_ngland 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,

195-0

intestate. He had no wife and children and his assets in England con­

sisted of the house at 75-Woodhouse Road, Sheffield, valuable mov-D

able 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

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to the plaint arc those properties. E •""

As already stated, the second defendant is the sister of Krishnan

and 1st defendant, and plaintiffs 2 to 6 arc 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 ad-

ministrators of Krishnan's estate, appointed by the

High Court or

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 <Jf the items mentioned in Schedules A and B of the plaint. After

the institution of the suit, proceedings were started in England

bv

Arksey and Mary

Woodliff on the basis of a power of attorney cxc·­

cuted 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 h;

England. The house and the movable~ in England were sold and

the proceeds together with the moneys were handed over to defen­

dants 1 and 2 after taking from them a bond of indemnity.

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SANKARAN v. LAKSHMI (Ma/hew, I.) 63

After ex. 56 order was passed by the High Court in England,

the plaint was amended with a prayer lo divide this amount also which

was separately mentioned as Schcdule-C:.

The first defendant contended that the amount specified in

Schedulc-C was not liable to be divided among the parties to the

suit, that

as Krishnan died domiciled in Engiand, succession to

the

assets in Schedule·C was governed bj 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 judica1a. 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,

5uccession to his movables including moneys would

be governed

by

English law and that, in any event, succe~ion to the immovable pro­

perty in England would be determined by the lax situs.

The High Court oonfirmed 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

ques­

tion of domicile of deceased Krishnan. The Court further found that

Krishnan did not acquire a domic,ile 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 0f 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 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

dis­

tributed among the next of kin of Krishnan, as succession to them

H should be governed by the English law whether

or not Krishnan

had

acquired domicile in England. Therefore, the only question for consi­

deration in this appeal is as regards the law which governs the succes­

sion to movable properties and the moneys left by Krishnan. If

SUPREME COURT RBPoRrs [1975] l s.c.R.

Krishnan had acquired a domicile of choice in England, there can be A

no doubt that English law would govern the succession to them.

To answer the question, we have to decide : (I) 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

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Court was of the view that ex. 56 order was obtained by fraud prac·

tised by the first defendant upon the court which pronounced it and

that, the proceedings which culminated in ex. 5 6 order were opposed'

to natural justice and, therefore, it did not operate as res judicara.

It is a well established principle of private international Jaw that if

a foreign judgment was obtained by fraud, or if the proceedings in C

which it was obtained were opposed to natural justice, it will not

operate as

res judicata( 1).

After the

d~ath of Krishnan, the first defendant addressed a letter

to the High Commissioner for India, London (ex.

22 dated October

23, 1950)

as to the

rourse to be adopted with regard to the assets left

by Krishnan in England. On November JO, 1950, Miss Hepworth D

WTOte a Jetter to the first defendant stating that Krishnan had left

m.ovable 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_ !llld asking the first defendant about the assets

which Krishnan

had in India (ex. 44).

On September 25, 1951, Arksey E

sent a letter to Damodaran, the hnsband 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

bad died domiciled in England and that he was instructed by M/s. King and Partridge that according to the Consti­

tution of India, Krishnan would be deemed to have died domiciled in

England and that the first defendant and his sister would be the legal F

heirs of Krishnan

if he had died domiciled in England.

After having obtained the letters of administration, the

administra·

tors, namely Arksey and Mary Woodliff, found that there was dispute

mnong 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

und'er

Order 11 of the Rules of the Supreme Court of England and notices

of the proceedings "'.ere serv.ed upon all the P.arties to the pr~nt suit,

the notices to the mmors bemg served

on

their natural guardians. The

parties appeared before the High Court of Judicature

in England in the proceedlings through their attorneys. In the proceedings, two affidavits

were fileQ. by the administrators, two by the first defendant and one

(I) Sees. 13 of the Civil Procedure Code.

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• SANKARAN v. LAKSH.'lfl (Mathew,/.) _§5

each by Miss H~pworth, 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 c>n the strength of the affidavits and the oral evidence that

the court came to the conclusion that Krishnad 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

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was misled in any way by the administrators either by knowingly aduc­

ing false evidence

or procuring evidence which to their knowledge was

false.

Arksey and

Mary' Wo.x!lilf were firml1· of the opinion that Krishnan

was domiciled

in England. There is no reason to think that this opinion

was formed under

the. in!lucnce of the first defendant. They had the

best opportunjty 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 evi.dence 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

con­

cerning the domicile of Krishnan when they applied by way of origi­

nating summons as required.

From the Jetter 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

1yas Iivin11 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

iii 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 charac­

terize her evidence as procured or false?

Domicile is a mixed question of law and fact and there is per­

haps no chapter in the Jaw that· has from such extensive discussion

received

Jess satisfactory settlement.

Thi> is no doubt attrib'1table to

the nature of the subject, including as it does, inquiry into ue 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

G often equivocal;

or who, being alive and interested, have a natural

. !endency to give

their bygone feelings a tone and colour suggested by

their oresent inclinations(

1

). The traditi<:Jnal· statemeni that, to estab­

lish domicile, there must be a present intention of permanent residence

merely means that

so far

as the m!rid of the person at the relevant time

was concerned, he possessed the requisite intention. The relevant time

II

varies with the nature of

the inquiry. It may be past or present. If th•

inquiry relates to the domicile of the deceased person;it mu<t b, asc~r­

tained whether at some period in his life he had formed a~d retained

a fixed· and settled intention of residence in a given country.(' l .One

~ (1) Se~ Be1l-~~K..!n~eJy. (1868) L.R. t S;;. & Div. ·:i1r•. 322

6-131 S·Jp. C!f75

66 SUPREME COURT REP OR TS [1975] I s.c.R.

has to consider the tastes, habits, conduct, actions, ambitions, health, A

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

s2id

straightway t.1-iat the first defendant was guilty of any fraud. We do not B

know the contents of the affidavits filed by the first defendant in the

proceedings \Vhich

cullninutcd in ex. 56 order. \Ve are left to co!1-

jecture 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 C

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 domi-

ciled in Engla~nd on the basis of the affidavits filed by the first defen­

dant: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 D

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 domicik 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

Gr·oy, C. J. in The Duchess of Kingston"s Case('). 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 premissible to show that the court was mistaken, it might be

shown that it was misled. There is an essential distinction between mis­

take 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 judg­

ment.

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 Pri 1

1ate Inte~national Lav.', 8th Ed., 164.

(2) See the Speech .of Lord Atkinson in Winens v. A. G. [1904 A.C. 287]

(3) Smith's Le&ding Cases, 13th ed., 88, 641 at 651.

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SAKKARAN v. L·IKSHM! (Mathew, J.) 67

by action or operate as res judicata. The leading case on the subject

in England

is

Abuu/ofj v. Oi;pcn!ieir:ier(' ). This was an action

brought on a Russian judgment which ordered the return of certain

goods unlawfully detained by the defendant, or alternatively, the pay­

ment 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

dekndant 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,

sine th, pica 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 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, there­

fore, the English Court

was not re-trying 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 _1udgrncnt, is none the kss 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 judg­

ment would have been different from what

it

was".

In Vadala v. Lawe.1 ('). the piaintilI sued the defendant in Italy

for the non-payment of certain bills of exchange which had been

accepted

by the defandants' agent acting

und·er 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

iCOurt, but failed, and judgment

was entered for the plaintiff. The plaintiff then brought an action in

England on the

j11dgment. 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 prac­

tised 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

·~(f) [18s2j-JO-Q.B~D. 295. (2) [18901 25 Q.B.D. 310.

68 SUPREME COURT REPORTS [1975) l s.c.R.

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 on a foreign judgment, a court cannot

go into the merits which have

b~en tried in the foreign court and that

one has to combine these two rules and apply them in

the case. He

then said :

A

B "The fralld 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 C

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 re-try 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 D

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 of

Appeal in Syal v. Heyward('). 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(

I) (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 I11dtan

usury laws."

Lord Cohen who delivered the judgment said in answer to the propo­

sition of counsel to the efl'ect that where a judgment is sought to be

set aside on the ground of fraud, the fraud must have been discoverell

by the applicant since the date of the foreign judgment : ·

(I) [1948] 2 All E.R. 576.

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SANKARAN v. LAKSHMI (Mathew, J.)

"Be that as it may, counsel's real difficulty is in his

fourth proposition. For it he relied on

Boswell v.

Coalcs

(1884) 27 Ch. D. 424; subsequent proceedings, sub nom.,

Boswell v. Coaks No. 2 ( l894), 86 L.T. 365, a decision of

the House

of Lords applied in Birch v. Birch (86 L.T. 364).

These cases no doubt, establish that in proceedings to set

aside

an English judgment the defendants cannot ask for a

re-trial of the issue of fraud

as between them and the plaintiff

on facts known to them at the date of the earlier jndgment,

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.''

69

It would appear that the Court of Appeal gave the widest SCOPe to the

doctrine

of Aboufofj v. Oppenheimer (supra) and Vadala v. Lawes

(supra). It would

fol!ow that a situation like this may arise :

"A sues B in a foreign court in respect of some trans­

saction 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 brings an action 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 Aboulofj 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 proceedings. in which it 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. flfvward goes far beyond this."(

1

).

The courts in Canada take a different view. In Wootdrufj v.

McLennan(') which was an action brought in Ontario on a Michigan

.iudgment, 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 snbstantially in

tendering the same evidence

which had been before the Michigan

court. This bad been followed

by the

Ontario Supreme Court and by

the Supreme Court of Nova Scotia. fn Jacobs v. Beaver('). Garrow.

J. distinguished the case where the facts which were tendered in

(I) 65 L1w qua,terly Rev., 82. 84.

(2) (1887) 14 Ont. A. R. 242.

(J) 17 Ont. L. R. 496.

70

SUPREME COURT REPORTS (1975] 1 S.C.R.

support of the plea of fraud were discovered after the hearing of the

original action.

In such a case they could be properly introduced in

defence to a subsequent action on the foreign judgment.

So far as the American decisions are concerned, while it is clear

that a foreign judgment may be attacked

on the ground of fraud in

its procurement, it is not clear how far this doctrine goes. Abouloff v.

Oppenheimer (supra) and

Vadala v. Lawes (supra) were referred to

by the Supreme Court of the United States in Hi/1011 v. Guvot (' J where

Gray

J. said :

"Whether those decisions can be followed in regard to

foreign judgments, consistently with our own decision as

to impeach-

ing domestic judgments for fraud, it

is unnecessary in this case to

determine". The matt.er is open, though Goodrich points out that

there

is no American case in which the plea of fraud has permitted

re­

examination of the very matters d·otermined in the original suit(').

According to Cheshire, the effect of the judgments in Aboulofj v.

Oppenheimer, Vadala v. Lawes and Syal v. Heyward (supra) is that the

doctrine as to the conclusiveness of foreign judgments

is materially and

most illogically

prejudiced(").

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Although there is general acceptance of the rule that a foreign judge­

ment can be impeached for fraud, there is no such accord as to what D

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 re-try the merits

of the

original action

? The wide generality of the observations of Coleridge,

C.J. in

Aboulo[f v.

Oppenheimer and of Lindley, J. in Vadala v. Lawes E

(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

Aboulofj 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 F

and, therefore, never could have be0n 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 G

which was before the tribunal

is concerned. Thus, when an allegation

is made

that a foreign judgment is vitiated because the court was

frau­

dulently 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 re-trial

of the merits. It

is hard to believe that by his dictum Lord Coleridge ever intended, des-

pite the abhorrence with which the Common Law regards fraud, to II

(I) 159 U.S. 113. 210.

(2) 65 Law Quarterly Rev. 82, 85.

(3) see "Private International Law," 8th Ed. P. 654.

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SA~KARAN v. LAKSHMI (i'vlathew, J.) 71

revert to the discredited doctrine that a foreign judgment is only prima

jucie evidence of a debt and may be re-examineJ on the merits, to the

absolute disregard of any limitation that might reasonably be imposed

by the customary adherence to the res judicata doetric-o(i). Duff, J.

with hi> usual felicity put the point thus in Macdonald v. Pier(') :

'"One is constrained to the conclusion upon an examina­

tion 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

con­

ceive to be this : such jurisdiction exists but in the exercise of

it the court will not permit its process to be made use of and

will exert the utmost care and caution to prevent its process

being used for the purpose of obtaining a re-trial of an issue

already determined, of

an issue which transivit in rem judi­

catam, under the guise of impugning a judgment as pro­

cured by fraud. Therefore the perjury must

be in a material

matter and therefore it must be established by

evidenc-o 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 arc 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 com­

pleting 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 res­

pectively,

he again presses his demand for money and ardent desire to

come to Travancore to see his ailing mother. In Ex. 29 letter dated

Jnne 19, 1936, Krishnan blames Padmanabhan and the members of the

family for their behaviour in not sending him money which would have

(1)

S'ee Conflict of Laws. Foreign .Tudgo1cnt a~ Defenc~-Note in 8 Canadian

Bar Review 23 l by Horace E. Read.

(2) [1923] S.C.R. 107, 120-121.

72 SUPJl.EME COURT REPORTS (1975} 1 S.C.R.

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,

J 939 (Ex. 5) wherein

he states that he 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 I will come back." On October 23, 1939 (Ex. 7) Krishnan

writes to Padmanabhan demanding the income from his share of pro­

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 I, 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. !(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.

Jn Ex. 2 letter dated July 2 l,

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 hut 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 Krish­

nan did not reply to his (Padmanabhan's) letters. In his letter dated

August 3. 1948 (ex.

3) to Padmanabhan, Krishnan asks the question

how 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 fan1i1y members arc all anxious to see Krishn:in. Jn

ex. 4 letter dated Februarv 10, 1949. the first defendant states that

Krishnan is getting a decei11 incorne and he is not wilJing to give it up

and come home, that he hopes to return after 5 more years for ever.

Jn ex. 49 letter dated March 29. 1949 written to the first defendant.

Padmanabhan savs 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.

Tn Seotember. 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

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a house in Sheffield, his intention changed. Although he was saying in

some o! his letters after 1939 that he would return and settle down in

Travancore, that

was

with the predomi1iant idea of getting from Pad­

manabhan 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 proper­

ties 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 bad absolutely

no intention of returning to India. In

ex. 15 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

;he 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

caa 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 domi·

cil 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

rele­

vant 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, tor its importance as a deterntining 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 of intention.

"It is not

by naked a•sertion, but by deeds and acts that a domicil is estab­

lished"(').

We are of the view that t_he declaration by Krishnan in the letters

written after l 939 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 Padmanabhan the share of

his income. They seem to

us to represent nothing more than an expectation unlikely to be ful­

filed. 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 deter­

mining the question of a change of domicil, but they must

-(I) See International Law, 8th Ed. 164. (2) See Mc Mt>!len '" Wadsworth,

[1889] 14 A. C. 631 at 636.

(3) See Ross v. Ross [1930] A.C. 1 at P. 6.

74 SUPREME COURT REPORTS [1975] ! S.C.R,

be examined by considering the person to whom, the pm­

poses 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 state­

ments made by Krishnan

in the letters referred to were made

from

other considerations and 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 imagina­

tion could it be said that they practised 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

A B

c

D

E

ad !item and therefore, the proceedings were opposed to principles of

natural justice.

In other words, the argument was, that, since the F

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

we1:e opposed to natural justice.

•

We do not think that there is any substance in this contention. It .1-,

is extremely difficult to fix with precision the exact cases in which the G

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 ju?,icial statements that it is essential to fix its exact

scope and meaning. When applied to foreign judgments, it merely Hi

relates to the alleged irregularities in procedure adopted by the

(l) see Dicey and lvforris on the Conflict on La'"''S, 8th Ed. 1009.

A

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B

•

c

D

E

F

G

I.II

H

SANKARAN v. LAKSHMI \Mathew, J.) 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 [oreign

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 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

hohalf of the minors, an opportunity was given to the minors through

those guardians to contest the proceedings. All

that is required by

rules of 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 pro­

ceedings 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

/item of the minors in the

proceedings.

Connsel 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

Jaw 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

En~lish 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 e\sewere. The authorities, so far as they go, are

against re<:ognition. The question arose in Buchanan v. Rucker(')

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

SUPREME COURT REPORTS (1975] l s.c.R.

might be effected upon an absent defendant by nailing a copy of ihe

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 inter­

national 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 juris~iction '! (at p. 194).

In Schibsby v. We,-tenholz(' ), a judgment had been given by a

French Court against Danish subjects resident in England. The

questien was :

The mode of citation adopted in accordance with French

law was to serve the summons on the Procureur Imperial,

the rule being that if a defendant did not appear within one

month 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 gin'n

against them.

It was held that no action lay upon the judgment. From the non­

appearance of a defendant who

is not otherwise subject to

the juris­

diction of the foreign court it

is impossible to spell out any such duty.

The true basis of enforcement of

a foreign judgment is thcit the

judgment imposes an obligation upon the defendant and, thereiore,

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 comity, 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. Hol/ey(

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 iVfines Ltd.(

3

); Hodson, L.J. ohs·.:rved

that Travers v. Holley(") was "'a decision li1nited to a judgn1cnt in

rem in a matter affecting matrimonial status, and it has no: been

foJlowed, so far as I am aware, in any case except a matrimonial case".

Sec Cheshire's Private International Law. 8th ed., pp. 634-635.

The question was again considered in Societe Cooperative s.·dmeral

v. Titam International Ltd.('). The facts in the case were :

A

fl

c

D

E

F

G

(I) (1870)' LR. 6 Q.B. 155. H

(2) [1953] 2 All E.R. 794.

(3) [1690] 1 W.L.R. 1273, 1281-82.

(4) [1966] 1 Q.B. 828.

•

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A

B

c

D

E

F

SANKARAN v. LAKSHMI (Mathew, !. )

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. Tbe Italian company was not satisfied with the

quality of the steel and brought proceedings in a Belgian

conrt 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

lralian company against S. and for S. against T. S. registered

that judgment under the Foreign Judgments (Reciprocal En­

lurccment) Aci, 1933, in the Queen's Bench Division, T.

i"~ut'.d a sun1mons to have the reg:istration set aside on the

i;round that the Belgian court had no jurisdiction in the circum·

stances of the case within the meaning of s. 4 of the An.

Widgery, J. said that the true reason on which a foreign judgment

is enforced in England is that the judgment of a for-oign cour' of

competent jurisdiction over the defendant imposes a duty

or

obligatiOI

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."

Tne Court then considered the case of Travers v. Holle.v· (supra) and

said, since the reason for enforcement of foreign judgment is not comity

but the existence of jurisdiction over the person, a judgment obtained

>vithout 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 0. Kahn-Freund(') :

"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-

G 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

H

( 1)

See "The Growth of Internationalism in English Private International •

Law" The Hebre\V University of Jerusalem Lionel Cohen Le::tures,

Sixth' Series. January, 19o0, pp. 29-30. ·

78 SUPREME COUllT REPORTS (1975] J S.C.R.

decided the case. Perhap> they were more inspired by the

horror matrimonii c/audicamis, the need for preventing Jimp­

mg marriages of which I think English specialists in marriage

law such

as Hodson L.J. are very much

aware."

A

B

Mr. Sarjoo Prasad for the appellant contended that a jud~mcnt or

order declaring domicile of a person

is a judgment in rem

at1d in the

proceedings to obtain such an order of judgment, notice need not be

served upon all pers?ns 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, pnvtes 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." I'vlr. Sarjoo Prasad subn1itted that

although domicile in the abstract is not res it savours of res like

marriage and, therefore, a determination or declaration of the domicile

of a person

is a judgment which is binding on the whole world and

any failure to serve the notices upon the minors or their failure to

appear in court in pursuance to the notices

is quite immaterial for

adjudging the question of jurisdiction.

c

The

differenc.;; bet\vecn a judgment in personam and a judgn1.:nt in

rem was pointed out by Chief Justice Holmes in Tvler v. Judges of the

Court

of

Ref?istration(') where he said:

"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

perso11G111,

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

migh(be minded to make an

objcctio"

of any sort against the right sought to be established, and if

any one in the world has a righ~ tv be heard on the strength

of alleging facts which, if true, show an inconsistent intctest.

the proceeding

is in rem. All proceedings, like all rights, arc

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."

D

F

G

Section 41 of the Evidence Act speaks only of a final judgment,

order

or decree of a competent court, in the exercise of probate, matri­

monial admiralty or insolvency jurisdiction, which confers upon or

takes

;way from any person any legal character, or which declares any

person to

be

entll'!ed to .any such ch~racter, or to be entitled to any !!

specific thing, not as agamst any specified person but absolutely. We·

(I) (1900) 175 Mass. 71.

•

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SANKARAN v. LAKSHMI (Mlitl1ew, J.) 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

refeqed to no authority wherein it has been held that an order

declaring the domicile

of a person under

Order 11 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 other­

wise 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 1najor

responden's 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 proceedinsg are concerned,

we are of the view,

on

the evidence in this case which we have already discussed in

detail,

that Krishnan had no settled or definite intention to return to Travancore

and that,

as he was a resident in

Englaad and as his acts and conducl

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 accordnigly

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

sak proceeds

of the house property in Sheffield most also be governed by EPglish

law and that the amount must be distributed between the first and

second defendants in equal shares.

We allow the appeal but make no mder as to costs.

P.B.R. Appeal allowed.