Probate is a certificate issued by the court to the executor named in the well and letter of administration is similar to probate but is issued by the court to next kin of a person who has died intestate (without a will). Both these documents relate to immovable property only. To deal with movable property including bank accounts et cetera, succession certificate is issued by the court. It may be noted that property law relating to succession and inheritance in India is extremely complex and is based on ancient Hindu law, although a lot of legislation has improved upon it. Most of the legislation has roots in relevant laws in England.

To understand either of these, the concept of will must be understood. The word “will” is not at all mentioned anywhere in the ancient Hindu law. There is no name for will in Sanskrit or in any vernacular Indian languages and nothing of the sort has been mentioned in ancient Hindu law. Then the question arises from where has this concept of well come within the purview of modern Hindu law? The answer lies in Indian succession act 1956. Under section 30 of the said act, a Hindu (which includes a Hindu, Sikh, Buddhist, Jain) may dispose of by will any property which is capable of being so disposed of by him in accordance with the provisions of Indian succession act. Under section 2(h), the will is defined as an legal declaration of intention of a testator with respect to his property which he desires to be carried into effect after his death.

Every person of sound mind and who is not a minor may dispose of his property by will. A will or any part of a will the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. There must be some sort of coercion or fraud to constitute undue influence so that the court may come to a decision that they will should be set aside. The onus to prove the will is on the person who asserts the validity of the will and he must prove that the will was made freely without any question or fraud. Will can be revoked or altered by the maker of it at any time when he is competent dispose of his property by will. Will can only be made about the property which is not ancestral. A life estate can be given with the power of alienation by will or gift subject to the proviso that to the extent to which the power is not exercised there is to be a gift over.

Probate as defined in Indian succession act means the copy of will certified under the seal of a court of competent jurisdiction with the grant of administration to the estate of the testator. In executor of a will is a person who is legally allowed to deal with estate of person making the will. If he renounces his powers, then letters of administration can be granted by a court of competent jurisdiction to any person other than executor. In executor has power to dispose of the property of the maker of the will in such manner as it thinks fit subject however to any restriction imposed by the will in respect of immovable property unless the court granting probate empowers him otherwise.

There person has died without a will, or when no executor has been appointed under the will or when an executor has been appointed and will but he refuses to act, then court has power to issue letters of administration to administer the state of the deceased. Under section 218 of the Indian succession act, if the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jain, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased’s estate. When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them. When no such person applies, it may be granted to a creditor of the deceased.

Important judgments for wills and probate are:-

Benga Behera v. Braja Kishore Nanda, (SC) 2007(7) Scale 228

SUPREME COURT OF INDIA

JUDGMENT

S.B. Sinha, J. – Interpretation and application of Section 63 of the Indian Succession Act, 1925 as well as Section 68 of the Indian Evidence Act, 1872 vis-a-vis the requirements of proof of execution of a document falls for consideration in this appeal which arises out of the judgment dated 21.11.2002 in First Appeal No. 397/1990 of the High Court of Orissa at Cuttack. However, before we embark upon the said question, we may notice the facts of the matter in brief.

2. Admittedly, one Sarajumani Dasi was the owner of the property in question. She was aged about 70 years when a Will was allegedly executed by her on or about 15.1.1982. She expired on 5.6.1983. The beneficiary of the Will was the first respondent herein. The testatrix was living in a math known as Bharati Math at Puri. In the Will, she disclosed her profession to be “Singer of Bhajans and Kirtans”. It is not in dispute that the first respondent was a complete stranger to the family. He is a businessman. His father was one of the disciples of late Taponidhi Ramakrushna Bharati Goswamy, who had founded the Math wherein the testatrix was living.

3. A deed of sale was also executed by the said Sarajumani Dasi in favour of advocate Surendra Panda of Puri on the same day. The Will is said to have been scribed by one Banabehari Upadhyaya (PW-9), an advocate’s clerk. He as well as one Chandramani Das Mohapatra who are said to be the attesting witnesses thereto also identified the testatrix before the Registering Officer. Respondent No. 1 obtained the original Will from the Office of the Registering Authority on 30.1.1982.

4. As noticed hereinbefore, Sarajumani Dasi expired on 5.6.1983. In 1986, an application was filed by the first respondent in the court of the learned District Judge, Puri for grant of Letters of Administration in respect of the alleged Will with a copy of the Will annexed, in terms of Section 278 of the Indian Succession Act. Respondent No. 1 claimed that he had also been residing in the said Math. She was assured of proper care by him and in consideration of the help and assistance rendered to her by respondent No. 1, the said Will was executed in his favour.

5. Appellants herein are the heirs and legal representatives of the testatrix. They contested the said application, inter alia, questioning execution of the Will alleging the same to be a forged and a sham document.

6. We may notice that the original Will was never produced by the appellant.

7. Execution of the Will was sought to be proved by producing a certified copy thereof. A purported xeroxed copy of the said will was also filed. The registration of the said Will was sought to be proved by calling the document in question wherein the contents of the document registered were noted.

8. To prove execution and attestation of the Will, the respondent No.1, inter alia, examined Banabehari Upadhyaya (P.W.9), Purnchandra Rath (P.W.4) and Surendra Panda (P.W.7).

9. We will notice their statements before the learned District Judge for determining the question as to whether requirements of law had been complied with.

10. P.W.9-Banabehari Upadhyaya who, as noticed hereinbefore, not only scribed the Will but also stated himself to be an attesting witness and identifier of the testatrix, in his deposition stated as under :

“…. On 15.1.82, Sarajumani Dasi executed a Will in favour of one Brajakishore Nanda and the same was scribed by me…..

I do not remember anything that happened on 15.1.82 except what I have deposed with reference to the document.

I first saw Sarajumani Dasi when she executed the sale deed. I did not know her before that. …… Surendranath Panda brought Sarajumani Dasi to me with him. Sarajumani Dasi was with Surendranath Panda and I was called to scribe the Will to become an identifying witness and also an attesting witness. Surendra Panda identified Sarajumani Dasi to me and that is how I know her. …… I did not make a draft of the Will but scribed it as per dictation of Surendranath Panda. Sarajumani Dasi did not put her L.T.I. in my presence on the Will at the time of execution of it. ….. I attested her L.T.I. before she put her L.T.I. on the sale deed and the Will. Sarajumani Dasi was not present when I scribed the sale deed and will and made the endorsements attesting her L.T.I. I do not know if any other person attested the Will and the sale deed. ….

… …. ….

…… I scribed whatever was dictated by Sri Panda without understanding the meaning or purport. …. I did not disclose before the Sub- Registrar or before any body that I identified Sarjumani Dasi without knowing her or attested her L.T.I. even though her L.T.I. were not affixed in my presence. …….”
11. In his deposition, P.W.4-Purnachandra Rath (An Advocate) stated :

“Thereafter on 15.1.82, Sarajumani again came to the Bar Association and met me there. Brajakishore Nanda (P.W.1 – Plaintiff) and his father Sanmajaya Nanda (not examined) accompanied the Mata. She expressed before me that she would execute the Will and also the sale deed. On her instruction, I made a gist of the Will and asked Banabehari Upadhyaya to scribe the same. ….. The scribe read over and explained the contents of the Will to Sarajumani and she acknowledged the same to be true and correct. When Sarajumani affixed her L.T.I. on the Will, myself, Banabehari Upadhyaya, (P.W.9) advocate Sri Surendra Panda and Chandramani Das Mohapatra and Sanmajaya Nanda were present……

I am attesting witness to the will. …… I endorsed a certificate in the Will to the effect that the executant was my client and the Will was written by my clerk in my office on my direction. …..”
12. In his deposition, P.W.7-Surendra Panda (An Advocate) stated thus :

“On 15.1.82, Sarajumani Dashi came to the Bar Association, Bhubaneswar. She was accompanied by Brajakishore Nanda and Jammajjaya Nanda at that time. That day i.e. 15.1.82 Sarajumani Dashi expressed her desire before her lawyer Purnchandra Rath (P.W.4) to execute the Will in favour of Brajakishore Nanda. Then the lawyer made a rough draft of the Will. Mr. Rath called Benabehari Upadhyaya to scribe the Will. …. The contents of the document were read and explained to Sarajumani Dashi. …. Sarajumani Dashi acknowledged the contents of the document to be true and correct and gave her L.T.I.. thereon. Attesting witness P.C. Rath, Chandramani and Banabehari Upadhaya were present when Sarajumani Dashi affixed her L.T.I. on the Will. ….”
13. P.W.9-Banabehari Upadhyaya did not, thus, admittedly know the testatrix from before. He had seen her for the first time on the day when the Will was executed and because Surendra Panda had asked him to identify her, he did so. It was stated that the same was scribed by him as per dictation of Surendra Panda, but in the Will, it was stated that he himself did it.

14. If he had put his signature before the testatrix had put her thumb impression on the sale deed and the Will, he does not answer the requirement of attesting witness. He was not aware of any other person attesting the Will and the sale deed. P.W.9, therefore, failed to prove execution or attestation of the Will. Not only he did not take any instruction from the testatrix before the Will was scribed, but the same was done on the dictation of P.W.7. There is nothing on record to show that the testatrix understood the meaning, purport and contents of the Will. She had put her thumb impression in his presence. There is nothing on record to show that the Will was read over and explained to the testatrix and she had put her thumb impression upon understanding the contents and purport of the Will and put her thumb impression as admission thereof. A certificate to that effect was in ordinary course required to be given by the scribe of the Will, particularly when the same had been found to be given by him in the sale deed executed by her on the same day which was marked as Ext.16.

15. P.W.4-Purnachandra Rath, as noticed hereinbefore, gave a completely different picture of the stay. According to him on 15.1.1982 the testatrix expressed her desire to execute a Will as also a sale deed, whereupon he made a gist of the contents of the Will and then asked P.W.9 to scribe it. No draft of the Will was prepared although drafts of the sale deeds were prepared. Although in his deposition P.W.-4 contended that he had endorsed a certificate in the Will to the effect that the Will was written by his clerk in his office on his direction, the certified copy of the Will did not show the same. A certificate to that effect appeared in the Xeroxed copy of the Will which was brought on record and marked at Ext.-13/a, but such a certificate did not find place in the certified copy of the Will, and thus, no reliance can be placed thereupon.

16. The High Court in its judgment proceeded on the basis that P.W.-4 was also a witness to the execution of the Will by the testatrix and thus would come within purview of the definition of the term ‘attesting witness’.

17. So far as the deposition of P.W.7-Surendra Panda is concerned, he contradicts P.W.-9 as according to him he was not present when the testatrix had put her thumb impression and he had attested her thumb impression before she gave her thumb impression. His evidence to the effect that the Will was read over and explained to the testatrix does not find mention in the Will and even a statement that three attesting witnesses signed the Will does not appear to be correct as only the name of P.W.-7 and P.W.-9 appeared as attesting witnesses in the Will.

18. Learned counsel appearing on behalf of the respondents, however, would submit that as the attesting witnesses were not willing to depose, it was not necessary to prove attestation in terms of Section 71 of the Indian Evidence Act. Summons were issued to the attesting witnesses by the Court. One of the attesting witnesses did not appear, P.W.9 appeared but he was declared hostile. Our attention in this connection has also been drawn to a part of his statement in the cross-examination where he has deposed as under :

“…. My Moharir licence might have been cancelled due to my misconduct and illegal activities.”
19. It is not for this Court, as submitted by the learned counsel, to consider the integrity and honesty of the said witness. According to the learned counsel, not only P.W.4 should be treated to be an attesting witness, but must also be held to have proved due execution of the Will.

20. We may deal with the contention of the learned counsel in respect of application of Section 71 of the Indian Evidence Act a little later. But, in our opinion, P.W.-4 cannot be considered to be a witness to execution of the will as he had nothing to do therewith. He comes into the picture only because an endorsement was found on the Xerox copy of the Will which, in our opinion, is of doubtful origin, keeping in view the fact that the same did not find a mention in the certified copy thereof. His evidence, in our opinion, would, thus, not be of much significance. This aspect of the matter was not considered by the High Court at all. We are, therefore, unable to agree with the following finding of the High Court :

“The attesting witnesses Purna Chandra Rath (P.W.4) Chandramani Das Mohapatra and Banahihari Upadhay (P.W.9) were present when she affixed her LTI on the Will. All the three attesting witnesses signed the Will in presence of Sarajumani inasmuch as no reliance, whatsoever, can be placed on the testimony of P.W.-4, PW-4 is an advocate. He is supposed to know the importance of attestation. If he intended to be an attesting witness, he could have done so.
21. It was also not necessary for the appellants to confront him with his signature in the Xeroxed copy of the Will, inasmuch as the same had not appeared in the certified copy. Execution of a Will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, however, can only be proved in terms of Section 68 of the Evidence Act. In terms of said provision, at least one attesting witness has to be examined to prove execution of a Will.

22. P.W.-9, as noticed hereinbefore in his deposition, stated that Sarajumani Dasi did not put her thumb impression in his presence on the Will at the time of its execution. Whether the same would amount to denial of the execution of a Will even within the meaning of Section 71 of the Indian Evidence Act is the question.

23. Section 71 of the Evidence Act reads as under:

“71. Proof when attesting witness denies the execution. – If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”
24. He neither denies the execution nor has failed to recollect the execution of the Will. According to him, the testatrix had put her LTI only after he had put his signature.

25. Section 71 of the Act provides for one of the exceptions where it is not possible to strictly comply with the requirements of Section 68. Sections 69, 70 and Section 71 are exceptions to Section 68. Section 69 provides for proof of a document where no attesting witness is found. Section 70 provides for admission of execution by party to attested document. Section 71 deals with a situation where the attesting witness denies or does not recollect the execution of the document and only in that eventuality, the document’s execution may be proved by other evidence.

26. As indicated hereinbefore, P.W.-9 does not deny the execution. His statement, thus, does not satisfy the requirements of Section 63(c) of the Succession Act. While appreciating evidence of a witness, we cannot go beyond the same and while doing so, we cannot raise a legal fiction that he must have done so only because the first respondent had cross-examined him on certain issues. By cross-examining one’s own witness, the effect of his statement in examination-in-chief in a case of this nature cannot be ignored. Whether Section 71 of the Evidence Act was applicable in the facts of the present case must be found out upon reading his evidence in its entirety.

27. Strong reliance has been placed by learned counsel on Ittoop Varghese v. Poulose and Others, AIR 1975 Kerala 141. The High Court in that case proceeded on the basis that Section 71 of the Act would be attracted when a witness deliberately and falsely denies that he had attested the Will and in a situation of that nature, the Court would be entitled to look into the totality of the circumstances so as to enable it to arrive at a conclusion on the question of attestation. In Ittoop Varghese case (supra), the witnesses categorically stated that they had not seen the testator signing and did not gather any personal acknowledgement from the testator on his signature in the Will and further that they did not sign in the presence of the testator. It was a case where the statement of the witnesses was found to be wholly false. It was found having regard to the fact situation obtaining therein and in particular having been found that the testator knew about the formalities for the due execution of a valid Will which was also corroborated by the endorsement made therein. The Kerala High Court, furthermore, reassured itself from the other evidence that the testator had expressed his desire to execute the Will and in fact wanted to assure himself that no quarrel should arise between his sons after his death regarding the Will or his signature and only for that purpose he got it registered. It was furthermore noticed that the Sub-Registrar who had registered the document, on his examination, affirmed that the document was read over to the testator and the testator acknowledged his signature in the Will and also signed in token of presenting the Will before the Sub-Registrar. The Sub-Registrar had also signed it as one of the witnesses. When a Sub-Registrar had signed the document as a witness and after that D.W.-5 had signed as an attesting witness upon execution of the document by the testator, according to the High Court the circumstances of the case were sufficient to come to the conclusion that there was proof of the due compliance of the formalities required by Section 63 of the Succession Act in that case .

28. We may notice that this Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003(1) RCR(Civil) 409 : [(2003)2 SCC 91] laid down the law on interpretation and application of Section 71 of the Act in the following terms :

“11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will….”

(Emphasis supplied)

29. Another vital aspect of the matter cannot also be ignored. Respondent No. 1 in his evidence accepted that he had obtained the registered Will from the office of the Sub-Registrar upon presenting ‘the ticket’ on 30.1.1982. After receipt of the Will, he had shown it to Sarajumani Dasi. He did not say how the Will was lost, particularly when he had not only shown the original Will to the testatrix but also had consulted a lawyer in relation thereto. No information was lodged about the missing of the document before any authority. Even approximate point of time the Will was lost, was not stated. In his cross-examination, he stated :

“I cannot say where and how the original will was lost.”
30. Loss of the original Will was, thus, not satisfactorily proved.

31. A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of Section 65 provides as under :

“When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.”
Loss of the original, therefore, was required to be proved.

32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will, beyond all reasonable doubt. His testimony in that behalf remained uncorroborated.

33. Furthermore, secondary evidence, inter alia, could be led by production of a certified copy given in terms of the provisions of the Indian Registration Act. In support of the proof of the Will, purported Xerox copy and a certified copy thereof have been produced. In the Xerox copy, an endorsement has been made by an advocate that the executant was his client and it was written by his clerk in his office on his dictation, whereas in the certified copy there is no such endorsement of the advocate.

34. A question has also been raised as to whether a certificate by Sub- Registrar at the time of registration proves attestation. A Sub-Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908 (1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering Officer when document is presented in terms thereof. The signature of every person presenting a document for registration is required to be endorsed on every such document at the time of presentation. Section 58 prescribes the particulars to be endorsed on documents admitted to registration, such as :

“(a) Signature of the person admitting the execution of the document;

(b) Any money or delivery of goods made in presence of Registering Officer in reference to the execution of the document shall be endorsed by the Registering Officer in the document presented for Registration.

Therefore this is the only duty cast on the Registering authority to endorse on the will, i.e. to endorse only the admission or execution by the person who presented the document for registration. The compliance of this provision leads to the legal presumption that the document was registered and nothing else..”
35. If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Property Act and Section 63 of the Succession Act. The term ‘attestation’ means:

“to ‘attest’ is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument (ii) each of them has signed the instrument in presence of the executant.
36. “Animus attestandi” is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness.

37. The Registering Officer Rabindranath Mohanty was examined as P.W.8. He, in his deposition, stated :

” …. I asked the executant her name, the name of the person in whose favour the Will was executed and the nature of the document. … She admitted before me that she has executed the Will after understanding the full import of the admission of execution of the Will.”
While registering the Will, the Registering Officer has endorsed :

“Execution is admitted by the above Sarajumani Dasi who is identified by Sri Banabihari Upadhyay S/o Harihar Upadhyaya, Advocate’s clerk of Bhubaneswar”.
38. In Dharam Singh v. Aso and Another [1990 (Supp) SCC 684], this Court held :

“2. The two attesting witnesses did not support the execution of the will. The trial court relied upon the statement of the registering authority and on the basis of decisions of the Lahore and Punjab and Haryana High Courts found that the will had been proved. The lower appellate court reversed the decision by relying upon two decisions of this Court in M.L. Abdul Jabhar Sahib v. H.V. Venkata Sastri & Sons, AIR 1969 Supreme Court 1147 and Seth Beni Chand v. Kamla Kunwar, AIR 1977 Supreme Court 63.

3. We have examined the record and are satisfied that the appellate court and the High Court were right in their conclusion that the Registrar could not be a statutory attesting witness. Therefore, the conclusion that the will had not been duly proved cannot be disturbed.”
39. The said witness did not know the testatrix personally. Even her parentage was not asked for and inquired into. He was examined eight years after the registration. It is difficult for any ordinary person after a period of eight years, inter alia, on the basis of a certified copy to depose in regard to evidence of such nature, particularly, in a case where a Will has been executed on the day on which she had executed a deed of sale in favour of a complete stranger. His evidence, therefore, does not inspire confidence. In any event he cannot be said to have proved due execution or attestation of the Will.

40. It is now well settled that requirement of the proof of execution of a Will is the same as in case of certain other documents, for example Gift or Mortgage. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant. (See Madhukar D. Shende v. Tarabai Aba Shedage, 2002(1) RCR(Civil) 724 : (2002)2 SCC 85; Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003)2 SCC 91 and Bhagatram v. Suresh and Others, 2004(1) RCR(Civil) 285 : (2003)12 SCC 35).

41. The Court granting Letters of Administration with a copy of the Will annexed, or probate must satisfy itself not only about the genuineness of the Will but also satisfy itself that it is not fraught with any suspicious circumstances.

42. No independent witness has been examined to show how the testatrix came close to the respondent No. 1. Why valuable agricultural land measuring Ac 4.187 and homestead land along with a house standing thereon had been gifted in favour of the first respondent, has not been explained. The original Will has not been produced. Why both the Will and the sale deed should have been executed on the same day, has not been explained.

43. The burden on the first respondent was heavy, he being a stranger to the family. He failed to discharge the said burden. Variance, inconsistencies and contradictions have been brought on record, particularly in the statements of P.W.-4 and P.W.-9 and other witnesses vis-a-vis the contents of the document, which we have noticed hereinbefore.

44. Learned trial Judge as also the High Court did not take into consideration the effect of such contradictions and inconsistencies, particularly the interpolation/variance in the Xerox copy of the Will vis-a-vis certified copy thereof. Serious consideration was required to be bestowed on the contention of the appellants that thumb impressions of the testatrix on different pages of the Xerox copy did not tally. No effort was made to compare the thumb impression appearing on the Xerox Copy with the thumb impression appearing on other admitted documents. Non-production of the original Will stating that the Will got lost, gives rise to an inference that it might have been that the Will did not contain the thumb impression of the testatrix. The testatrix was an old and ill lady. She had no independent adviser in the matter of the execution of the Will. On the other hand, the plaintiff/respondent No. 1 and his father being disciple of her Guru were in a position to dominate her mental process.

45. Respondent No. 1 was a student at the relevant time. His father had taken an active part in the entire process in registering and culmination of the Will in favour of his son. There are materials on record to show that although sufficient time had been granted for examination of the other attesting witnesses, Chandramani Das Mohapatra was not summoned. No summon could be issued only because his correct address had not been furnished.

46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved.

47. In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) By LRs. And Others, 1995(3) RRR 520 : [(1995)4 SCC 459], this Court opined :

“8. If a total view is taken of the aforesaid circumstances, which has to be the approach, we are of the opinion that the courts below overplayed some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders.”
48. We may, however, notice that in B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors., 2007(1) RCR(Civil) 277 : 2007(1) R.A.J. 226 : [2006(11) SCALE 148], this Court upon considering a large number of decisions opined that proof of execution of Will must strictly satisfy the terms of Section 63 of the Indian Succession Act. It was furthermore held :

“It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made.”
It was observed :

“Yet again Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence.”
It was emphasised that where there are suspicious circumstances, the onus would be on the propounder to remove the suspicion by leading appropriate evidence stating :

“However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same.

Each case, however, must be determined in the fact situation obtaining therein.

The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.

The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision.”
49. Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors. [2006(14) SCALE 186], this Court held :

“Section 63 of the Indian Succession Act lays down the mode and manner of execution of an unpriviledged Will. Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.

The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002)2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors., 2005(1) RCR(Civil) 795 : (2005)8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.”
Noticing B. Venkatamuni (supra), it was observed :

“The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be.

We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the judge even if there exist circumstances of grave suspicion. [See Venkatachala Iyengar (supra)]”
[See also Joseph Antony Lazarus (Dead) By LRs. V. A.J. Francis, 2006(2) RCR(Civil) 570 : (2006)9 SCC 515]

50. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside. Accordingly, the appeal is allowed with costs. Counsel’s fee assessed at Rs. 5,000/-.

Appeal allowed.

R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, (SC) 1963 AIR (SC) 1

SUPREME COURT OF INDIA

JUDGMENT

Shah J. – Ramalingam Mudaliar – a resident of Bangalore (in the former Indian State of Mysore) – started life as a building contractor. He prospered in the business and acquired an extensive estate which included many houses in the civil and military station at Bangalore, in Bangalore city and also in the towns of Madras, Hyderabad and Bellary. He dealt in timber, established cinematography theatres, obtained a motor-car selling Agency and made investments in plantations and coffee estates. He set up a factory for manufacturing tiles, and lated floated a sugar company-Indian Sugars and Refineries Ltd, of which he became the managing agent and purchased a large block of shares. For some years before his death Ramalingam had taken to excessive drinking, and was subject to frequent coronary attacks. He became peevish and easily excitable and his relations with his wife and children were strained., Ramalingam felt great disappointment in his eldest son Vishwantha who borrowed loans from money-lenders at exorbitant rates of interest, attempted to evade payment of custosuty, falsified accounts and other wise exhibited “Utter lack of business capacity” Ramalingam had developed a violent antipathy towards a sadhu named Ramalingaswami, but his wife Gajambal and his children persisted in attending upon the sadhu and visited him frequently. This led to frequent quarrels between Ramalingam and his wife and children, Ramalingam stopped the allowance for household expenses, and cancelled the power which he had given his son Viswanath to operate on the joint Bank Account. Shortly there after, he left the family house. On June 2, 1942, his wife Gajambal presented a petition before the district Judge, Civil Station Bangalore, for an order against Ramalingam for inquisition under the Indian Lunacy Act. On that application evidence was directed to be recorded and the district Judge called for a medical report as to the mental condition of Ramalingam.

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

3. During the pendency of the probate proceedings, the sons of Ramalingam – who will hereinafter be collectively referred to as the plaintiffs- instituted three actions against the executors and other persons for establishing their title to and for possession of the estate disposed of by the will of Ramalingam. These actions were :

(1) Suit No. 56 of 1942/43 of the file of the District Court, Bangalore for possession of immovable properties in Bangalore and the business carried on in the name of Ramalingam and also movables such as shares together with the profits and income accrued therefrom since December 18, 1942.

(2) Suit No. 60 of 1944 in the District Court, Bangalore Civil and Military Station for a decree for possession against the executors of immovable property within the territorial jurisdiction of that Court, and

(3) Suit No. 214 of 1944 in the Madras High Court on its original side for a decree for possession of immovable properties in the town of Madras and also for a decree for possession of “certain business” and movables in Madras including the shares of the Indian Sugars and Refineries Ltd.
4. After the retrocession of the Military Station Bangalore in 1947 to the Mysore State, Suit No. 56 of 1942/43 was renumbered 61A of 1947 and was consolidated for trial with Suit No. 60 of 1944. Hearing of Suit No. 214 of 1944 on the Original Side of the Madras High Court was ordered to the stayed pending the hearing and disposal of the Mysore suits. In the three suits the plaintiffs claimed possession of the property devised under the will of Ramalingam dated September 10,1942, on the plea that the property belonged to the joint family of the plaintiffs and the testator, and the executors acquired under the will no title thereto because the will was inoperative. The suits were resisted by the executors principally on the ground that Ramalingam was competent to dispose of the estate by his will, for it was his self- acquisition. In the suit in the District Court at Bangalore they also contended that the Court had no jurisdiction to grant relief in respect of any property movable or immovable outside the Mysore State. This plea was raised because in the plaint as originally filed the plaintiffs had claimed a decree for possession of the immovable property in the Province of Madras and also for an order for retransfer of the shares which were originally held by Ramalingam in the India Sugars and Refineries Ltd., and which were since the death of Ramalingam transferred to the name of the executors. By an amendment of the schedule to the plaint, the claim for possession of immovable situate within the jurisdiction of the Madras High Court but not the relief relating to the shares was deleted. The plea that the claim for possession of movables outside the State of Mysore was not maintainable was apparently not persisted in before the District Court. The District Judge, Bangalore held that the property devised by the will dated September 10,1942, was of the joint-family of Ramalingam and his sons and the will was on that account inoperative. He accordingly decreed the suits for possession of the properties set out in the schedules and within his jurisdiction, and directed that a preliminary decree be drawn up for account of the management of the properties since the death of Ramalingam by the Executors.

5. Appeals preferred by the executors against the decrees of the District Judge in the two suits to the High Court of Mysore were heard by Paramshivayya, C.J., and Balakrishanaiya J. After the appeals were heard for some time, the hearing was adjourned for six weeks to enable the parties to negotiate a compromise. The plaintiffs say that it was agreed between them and the executors that the widow and the children of Ramalingam should take⅗th of the estate covered by the will of Ramalingam executed on September 10, 1942, and that the remaining 2/5th should go to charity mentioned in the will and that in the event of the’ sons and widow of Ramalingam succeeding in the pending appeal in the Probate proceedings before the Privy Council, the2/5th share should also be surrendered by the executors.

6. The appeals were then posted before a Division Bench of Balakrishanaiya and Kandeswami Pillai JJ. Before this newly constituted Division Bench, a decree in terms alleged to be settled between the parties was claimed by the widow and sons of Ramalingam but the Court by order date March 15,1949, declined to enter upon an enquiry as to the alleged compromise, because in their view the compromise was not in the interest of the public trust created by the will of Ramalingam. The appeals were then heard and on April 2, 1949, the two Judges constituting the Bench differed. Balakrishanaiya J., then in exercise of the powers under Section 15(3) of the Mysore High Court Regulation 1884 referred the appeals to “a Full Bench for decision under section 15 (3) of the High Court Act.” The appeals were then heard by a Full Bench of Medappa, Acting C.J., Balakrishanaiya and Mallappa JJ. For reasons which will be set out in detail hereafter, no arguments were advanced on behalf of the plaintiffs in support of the decree of the District Judge, and the appeals were allowed, and the plaintiffs suits were dismissed. An application for review of judgment was submitted by the plaintiffs on diverse grounds, but that application was also dismissed.

7. After the disposal of the suits in the Bangalore Court, in Suit No. 214/44 it was submitted before the Madras High Court by the executors that the judgment of the Mysore High Court dismissing the plaintiffs’ suit for possession of immovable properties and for an order for retransfer of shares of the India Sugars and Refineries Ltd., was res judicata between the parties and accordingly the suit filed by the plaintiffs in the Madras High Court be dismissed. The plaintiffs contended that as to immovable in Madras, the Mysore Court was not competent to adjudicate upon the title of the plaintiffs to the Madras properties and that the Court did not, in fact, adjudicate upon the claim of the plaintiffs, and that, in any event, the judgment was not conclusive because the Mysore judgment was not conclusive because Medappa C.J., and Balakrishanaiya J., sowed bias before and during the hearing of the appeals, they were incompetent to sit in the Full Bench, land “their judgment was coram non judice.”

8. On “the preliminary issue of res judicata”, Rajagopalan, J., held that the Full Bench judgment of the Mysore High Court did not bar the hearing of the suit in regard to the immovable properties in Madras claimed by the plaintiffs for two reasons : (1) that the title to those properties was not, in fact, adjudicated upon by the Mysore Court and (2) that the lex situs governed the immovable properties in Madras, The learned Judge also indicated the scope of the enquiry on the plea of conclusiveness of the foreign judgment raised by the executors. He observe that the Madras High Court could not investigate the allegations made against the Judges of the Mysore High Court in the conduct of the appeal itself, or of the propriety or correctness of their decisions in the appeal or in the legal proceedings connected therewith, but two question fell outside the purview of that rule; (a) whether Mr. Medappa had been and was using a motor car belonging to the estate in the hands of the excutors, and (b) whether Mr. Medappa sent for L. Section Raju who was engaged to appear as counsel for the plaintiffs and attempted to dissuade him from conducting the case for the “plaintiffs’ family.” If these two allegations were established, observed Rajagopalan, J., they might possibly furnish proof that one of the Judges of the Mysore High Court who had heard the appeals was “interested” in the subject matter of suit itself and that would be a ground falling within the scope of exception (d) to Section 13 Civil Procedure Code. He accordingly ruled that the plaintiffs may lead evidence on those two allegations but not as to the rest. Against the order, two appeals were preferred to the High Court under Letters Patent, one by the plaintiffs and the other by the executors. The plaintiffs submitted that Rajagopalan, J., was in error in restricting the scope of the enquiry into the allegations of bias, interest and partiality. The executors contended that the judgment of the Mysore High Court was conclusive as to title to all properties movable and immovable belonging to the estate of Ramalingam and disposed of by the will and that no enquiry at all as to the allegation of bias and proof of interest, about the use by Mr. Medappa of a motor car belonging to the estate and the dissuasion by Mr. Medappa of Raju should be permitted. The high Court of Madras held that evidence about the attempts made to dissuade Raju from appearing for the plaintiffs was admissible, but not evidence relating to the use by Mr. Medappa of a motor car belonging to the estate. They observed that even if the “Mercedes car” of the estate was used by Mr. Medappa, the user was before he was appointed Judge of the Mysore High Court and the motor car had been sold away more than three years before the date on which Mr. Medappa sat in the Full Bench and it could not therefore be said that because he had used the car some years before the date on which he sat in the Full Bench, “he had so identified himself with the executors that in taking part in the hearing before the Full Bench”, the proceedings was contrary to natural justice. They also held that the judgment of the Mysore High Court, unless the “plea of coram non-judice” was established, was conclusive as to all items of property in dispute in the suit, except as to the four items of immovable property in Madras.

9. The suit was thereafter allotted to the file of Ramaswami, J., for trial and was heard together with five other suits-Suits Nos. 91 of 1944, 251 of 1944, 274 of 1944 and 344 of 1946, 200 of 1944 all of which directly raised questions relating to the interest which the plaintiffs claims in the estate devised under the will as members of a joint family. By consent of parties, the evidence recorded in Suit No. 60 of 1944 and Suit No. 61A of 1947 of the file of the District Judge, Bangalore, was treated as evidence in these suits and proceedings and the recorded of the Mysore High Court in the civil suits and the printed record of the Privy Council in the probate proceedings and the record in the petition for a writ of prohibition filed in this Court restraining enforcement of the judgment of the Mysore Court were treated as part of the record of the suit.

10. In Suit No. 214 of 1944, three principle question fell to be determined :

(1) whether the judgment of the Mysore High Court holding that the estate devised by Ramalingam by his will was his self acquired property was conclusive as to title to properties movable and immovable, situate without the jurisdiction of the Mysore State.

(2) whether the proceeding in the Mysore High Court in which the judgment pleaded as conclusive was rendered was vitiated because it was opposed to natural justice; and

(3) whether by his will dated September 10, 1942, Ramalingam attempted to dispose of the estate which belonged to the joint family of himself and his sons, the plaintiffs,
11. Ramaswami J. did not expressly deal with the first question, presumably because (so far as he was concerned) it was concluded by the judgment of the Division Bench in a appeals against the interloctor order relating to the scope of the enquiry in the suit, but on the second and the third question he held in favour of the of the plaintiffs. He held that that for diverse reasons the Full Bench judgment of the High Court was coramnonjudice” and therefore not conclusive within the meaning of Section 13 of the Civil Procedure Code, and that the evidence disclosed that the property movable and immovable set out in the schedule to the plaint and the business conducted by Ramalingam belonged to the joint family of Ramalingam and his sons. He accordingly decreed the claim of the plaintiffs for possession of the property movable and immovable, set out in the schedule to the plaint (except 1650 shares of the India Sugars and Refineries Ltd.) and directed an account of the management by the excutors of the properties from the dale of Ramalingam’s death till delivery of possession of the properties to the plaintiffs. He also declared that the business carried on in the name off Oriental Films at 9, Stringers St. G.T. Madras, was the sole proprietary concern of the joint family and the profits realised from “Palmgrove” and Vegetable Oil Factory constituted the assets of the estate of Ramalingam “subject to such equities as might arise in favour of Narayanaswami Mudaliar on the footing of the doctrine of Quantum Meruit to be determined by the final decree or execution proceedings.”

12. Against the judgement of Ramaswami, J. the executors appealed to the High Court. The High Court observed that the decision of the Mysore High Court could not “take effect in respect of the immovables properties situate in the State of Madras; but it could naturally affect the movables situate there. In fact, the immovable properties in Madras State were not included in Mysore suits. It is therefore necessary fore the members of Ramalingam’s family to gel rid of the decision of the Mysore High Court before they can have any chance of obtaining the movable properties of Ramalingam situate in the State.

The High Court after an elaborate review of the evidence held that the estate which Ramalingam sought to dispose of by his will was joint family estate, and he was on that account incompetent to dispose of the same, and the plaintiffs were entitled to the immovables in Madras, but as to movables the judgment of the Mysore High Court was conclusive there being co reliable evidence to establish the plea of “coram non judice.” The High Court accordingly modified the decree of the trial Court. They confirmed the decree in so far as it related to immovables in Madras and dismissed it as to the rest. They further declared that the sale proceeds of a property called “Palmgrove”- which was excluded from the Schedule to the plaint in the Bangalore suit-“constituted the assets of the said joint family” and on that footing gave certain directions.

13. Against the judgment of the High Court modifying the decree of Mr. Justice Ramaswami two appeals-Nos. 277 and 278 of 1958 – are preferred : Appeal No. 277 is by the plaintiffs, and Appeal No. 278 of 1958 is by the executors. The plaintiff contend that the judgment of the Mysore Full Bench is not conclusive between the parties in the Madras suit, for the Mysore Court was not a Court of competent jurisdiction as to property movable and immovable outside the territory of the Mysore State, that the judgment was not binding because the Judges who presided over the Full Bench were not competent by the law of the Mysore State to decide the dispute and that in any event it “was coram non judice” because they were interested or biassed and the proceedings before them were conducted in a manner opposed to natural justice. On behalf of the executors, it is submitted that the judgement is conclusive as to the nature of “the Kolar Gold Fields business,” which was found to be the separate business of Ramalingam, and the Madras High Court was only competent to decide whether the immovables in Madras were not acquired out of the earnings of that business.

14. Section 13 of the Civil Procedure Code, Act V of 1908, provides :

“13. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction’

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be hounded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in Indian”
By that enactment a foreign judgment is made conclusive as to all matters directly adjudicated upon between the parties, except as to cases set out in clauses (a) to (f). The judgment of the Mysore High Court, is it is claimed by the plaintiffs’ not conclusive because –

(1) it has not been pronounced by a court of competent jurisdiction,

(2) that on the face of the proceeding it was founded on incorrect view of the international law, and

(3) that the proceeding in which the judgment was pronounced was opposed to natural justice.
15. The dispute in the appeal filed by the plaintiffs primarily relates to the shares of the India Sugars and Refineries Ltd. and moveables in Madras. The judgment of the Mysore Court qua the immovables in Mysore has become final and is not and cannot be challenged in this Court. The Mysore High Court was competent to adjudicate upon title to immovables within the territory of the State of Mysore, in the suits instituted by the plaintiffs against the executors. In considering whether a judgment of a foreign Courts is conclusive, the Courts in India will not inquire whether conclusions recorded thereby are supported by the evidence, or are otherwise correct, because the binding character of the judgment may be displaced only by establishing that the case falls with in one or more of the six clauses of Section 13, and not otherwise. Undoubtedly, the registered office of the India Sugars and Refineries Ltd., was in Bellary in the Province of Madras, the situs of the shares which are moveables – may normally be the place where they can be effectively dealt with (see Erie Beach Co. v. Attorney General for Ontario, 1930 A C 161 and Brassard v. Smith, (1925 A C 371). The situs of the share of the India Sugars and Refineries Ltd. may therefore be properly regarded as without the territorial jurisdiction of the Mysore Court at the date of the institution of the suit by the plaintiffs. Counsel for the plaintiffs submitted that the Courts in the Indian State of Mysore which qua the Courts in the Province of Madras prior to the enactment of the Constitution, were foreign Courts had no jurisdiction to adjudicate upon title to movables outside their territory for the action to declare title to such movables and an order for possession thereof was by the rules of private international law an action in rem, and the judgment of the Mysore Court was on that account a nullity. Counsel urged that the principle of submission to jurisdiction has no application in actions in rem, because jurisdiction in rem rests entirely upon presence actual or national of the res within the territory over which the Court has power. Counsel also urged that recognition of jurisdiction in transactions involving a foreign element depends upon the doctrine of effectiveness of judgments and willingness of parties to submit to jurisdiction in actions in rem is irrelevant. Enlarging upon this theme, it was submitted that the shares of the India Sugars and Refineries Ltd. had at the material time a situs outside the jurisdiction of the Courts of the Mysore State and by the rules of private international law, an action for adjudication of title to the shares being an action in rem the Courts of the State of Mysore were incompetent to entertain a suit in which title to the shares was involved because they could not render an effective judgment for possession of those shares. On the assumption that in an international sense the Court of the District Judge, Bangalore, was incompetent to adjudicate upon title to the shares and the movables and to award possession thereof, it was urged that a suit for determination of title to and for possession of the shares and movables could be instituted in the Madras High Court alone and by their submission the plaintiffs could not invest the Court of the District Judge, Bangalore, with jurisdiction to adjudicate upon the conflicting claims of title to the shares. The argument therefore is that the action instituted by the plaintiffs in the District Court of Bangalore being an action in rem that Court was, by the rules of private international law universally recognised, competent to adjudicate upon title only to property regarding which it could render an effective judgment, and as the plaintiffs claimed title to and possession of shares of the India Sugars and Refineries Ltd. and other movables outside the territory of Mysore the judgment of the Mysore High Court that the shares and the movable property were the self-acquisition of Ramalingam was not binding upon the parties, because the Mysore court was not a Court of competent jurisdiction within the meaning of Section 13, Civil Procedure Code, 1908.

16. A judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction; and competence contemplated by Section 13 of the Civil Procedure Code is in an international sense, and not merely by the law of the foreign State in which the Court delivering judgment functions, (see Chorumal Balchand Firm v. Kasturichand, ILR 63 Calcutta 1033, Panchapakesa v. Hussain AIR 1934 Madras 145 and Pemberton v. Hughes 1899-1 Ch 781). It is necessary to emphasise that what is called private international law is not law governing relations between independent States : private international law, or as it is sometimes called “Conflict of Laws”, is simply a branch of the civil law of the State evolved to due justice between litigating parties in respect of transactions or personal status involving a foreign element. The rules of private international law of each State must, therefore, in the very nature of things differ, but by the comity of nations certain ruses are reconised as common to civilised jurisdictions. Through part of the judicial system of each state these common rules have been adopted to adjudicate upon disputes involving a foreign element and to effectuate judgments of foreign courts in certain matters, or as a result of international conventions.

17. The Roman lawyers recognised a right either as a jus in rem or a jus in per sonam. According to its literal meaning “jus in rem” is a right in respect of a thing a “jus in personam” is a right against or in respect of person. In modern legal terminology a right in rem, postulates a duty to recognise the right imposed upon all persons generally, a right in personam postulates a duty imposed upon a determinate person or class of persons. A right in rem is, therefore protected against the world at large; a right in personam against determinate individuals or persons. An action to enforce a jus in personam was originally regarded as an action in personam and an action to enforce a jus in rem was regarded as an action in rem. But in course of time, actions in rem and actions in personam acquired different content. When in an action the rights and interest of the parties themselves in the subject matter are sought to be determined, the action is in personam. The effect of such an action is therefore merely to bind the parties thereto. Where the intervention of the Court is sought for the adjudication of a right or title to property, not merely as between the parties but against all persons generally, the action is in rem. Such an action is one brought in the admiralty Division of the High Court possessing Admiralty jurisdiction by service of process against a shin or cargo within jurisdiction. There is another sense in which an action in rem is understood. A proceeding in relation to personal status is also treated as a proceeding in rem, for the judgment of the proper court within the jurisdiction of which the parties are domiciled is by comity of nations admitted to recognition by other courts. As observed by Cheshire in his “Private International Law”, Sixth Edition at page 109,

“In Roman law an action in rem was one brought in order to vindicate a jus in rem, i.e., a right such as ownership available against all persons, but the only action in rem known to English law is that which lies in an Admiralty court against a particular res, namely, a ship or some other res, such as cargo, associated with the ship”

Dealing with judgments in rem and judgments in personam, Cheshire observed at page 653, –

“It (judgment in rem) has been defined as ‘a judgment of a court of competent jurisdiction determining the status of a person or thing (as distinct from the particular interest in it of a party to the litigation); and such a judgment is conclusive evidence for and against all persons whether parties, prives or strangers of the matter actually decided.’…………….A judgment in rem settles the destiny of the res itself ‘and binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence’; a judgment in personam, although it may concern a res, merely determines the rights of the litigants inter se to the res. The former looks beyond the individual rights of the parries, the latter is directed solely to those rights…………..A foreign judgment which purports to operate in rem will not attract extra- territorial recognition unless it has been given by a court internationally competent in this respect. In the eyes of English law, the adjudicating court must have jurisdiction to give a judgment binding all persons generally. If the judgment relates to immovables, it is clear that only the court of the situs is competent. In the case of movables, however, the question of competence is not so simple, since there would appear to be at least three classes of judgments in rem:

(a) Judgments which immediately vest the property in a certain person as against the whole world.

These occur, for instance, where a foreign court of Admiralty condemns a vessel in prise proceedings.

(b) Judgments which decree the sale of a thing in satisfaction of a claim against the things itself.

………………………………………………………………………………

and (c) Judgments which order movables to be sold by way of administration.”
18. An action in personam lies normally where the defendant is personally within the jurisdiction or submits to the jurisdiction or though outside the jurisdiction may be reached by an order of the court. By Section 20 of the Mysore Civil Procedure Code a general jurisdiction (subject to Sections 16 to 19 which deal with suits relating to immovable property and movable property under distraint and certain incidental matters) was conferred on Courts in respect of suits instituted within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Courts is given or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part arises.

Undoubtedly, these rules deal with the territorial jurisdiction of courts in respect of all suits other than those relating to immovable property or for recovery of movable property under distraint or attachment. But in their application they extend to all persons whether domiclied or not within jurisdiction. Section 20 of the Code extends the jurisdiction of the courts to persons or transactions beyond the territorial limits of the courts. Such jurisdiction in personam which transcends territorial limits is conferred on the courts by the law-making authority of many States. In England, by Order 11, Rule 1 of the Rules of the Supreme Court, discretionary jurisdiction; in personam is exercisable by the courts by effecting service outside the jurisdiction of a writ of summons or notice of a writ of summons against an absent defendant in the classes set out therein.
19. Undoubtedly, a court of a foreign country has jurisdiction to deliver a judgment in rem which may be enforced or rcognised in an Indian Court, provided that the subject-matter of the action is property whether movable or immovable within the foreign country. It is also well settled that a court of a foreign country had no jurisdiction to deliver a judgment capable of enforcement or recognition in another country in any proceeding the subject- matter of which is title to immovable property outside that country.

20. But there is no general rule of private international law that a court can in no event exercise jurisdiction in relation to persons, matter or property outside jurisdiction. Express enactment of provisions like Section 20, Civil procedure Code, Act V of 1908 and Order 11, Rule 1 of the Supreme Court Rules in England, negative such an assumption. The courts of a country generally impose a therefold restriction upon the exercise of their jurisdiction: (1) jurisdiction in rem (binding) not only the parties but the world at large) by a court over res outside the jurisdiction will not be exercised, because it will not be recognised by other courts; (2) The court will not deal directly or indirectly with title to immovable property outside the jurisdiction of the State from which it derives its authority; and (3) Court will not assist in the enforcement within its jurisdiction of foreign penal or revenue laws.

21. The suit filed by the plaintiffs was for possession of the estate disposed of by the will of Ramalingam. In paragraph 3 of the plaint in the Bangalore District Court suit (and that is the only foreign suit to which we will refer, because it is common ground that the averments in the two plaints in the District Court at Bangalore and in the District Court, Civil Station Bangalore, which was consolidated for hearing with the Bangalore suit; were the same) it was averred;

“The plaintiffs and their father, the late V. Ramalingam Mudaliar, were members of the undivided Hindu joint family and the properties set out in the schedules among others belong to The said joint family properties the said Ramalingam Mudaliar died on the 18th of December 1942, and on his death the three plaintiffs herein have become entitled by survivorship to all the said properties.”

in paragraph 11, it was averred;

“The plaintiffs state that as the properties set out are joint family properties the late Ramalingam had no disposing power in respect of them and any will alleged to have been executed by him is in any event void and inoperative in law, and not binding on the plaintiffs.”
It was then averred in paragraph 13, that the executors under the will of Ramalingam had entered upon the properti erties and business and the plaintiffs were entitled to recover the same from the executors as the surviving, members of the joint family consisting of themselves and their deceased father Ramalingam. By paragraph 22 they claimed among other reliefs, the following :

(a) that the executors be ordered to deliver possession of all the properties and businesses in their possession, management and control together with the profits and income accrued therefrom since 18th December, 1942,

(b) that defendants 17 and 18 (the employees of Ramalingam) be ordered to deliver possession of the assets and capital together with the profits of the businesses of Kolar Gold Fields contracts, military contracts and cinema business,

(c) that the executors and defendant 15 who are alleged to have been holding shares of the India Sugars and Refineries be ordered to retransfer the shares to the plaintiffs.

The plaintiffs in paragraph 19, averred, in impleading the India Sugars and Refineries Ltd. Bellary as Defendant No. 16 in the suit, that the company was impleaded “so as to give effect to an order of transfer of at least 19,000 shares from the names of defendants 1 to 3 to the plaintiffs.”
22. The claim in suit was clearly for adjudication of title of the plaintiffs against persons who had wrongfully possessed themselves of their property. Manifestly, an action in personam is one brought in order to settle the rights of the parties as between themselves and only between themselves and persons claiming through or under them whether it relates to an obligation or, as in the case of detinue, to chattels. A decision obtained in this suit is effective only as between the parties. By the Mysore Civil Procedure Code the District Court of Bangalore was competent to entertain the suit for possession of immovable properties within the jurisdiction of that court and also for an order against the executors to retransfer the shares of the India Sugars and Refineries Ltd., to the plaintiff. The situs of the shares in any question between the Company and the holders thereof was the registered office of the Company in Bellary (outside the State of Mysore), but the share certificates must, on the case of the plaintiffs as set out in the plaint, be deemed to be with the executors and compliance with the decree, if any, passed against the executors for an order of retransfer could be obtained under the Civil Procedure Code (see Order 21, Rules 31 and 32 Mysore Civil Procedure Code). There is no rule of private international law recognised by the courts in India which renders the Bangalore Court incompetent to grant a decree directing retransfer of the shares merely because the shares have a situs in a dispute between the Company and the shareholders outside the jurisdiction of the foreign court: Counsel for the plaintiffs submitted that the Mysore Court was incompetent to deliver an effective judgment in respect of the shares. But by personal compliance with an order for retransfer judgment in favour of the plaintiffs could be rendered effective.

23. It is in the circumstances not necessary to express any opinion on the question whether on the principle of effectiveness is founded the conclusive character of a foreign judgment. On this question, textbook writers disagree and there is singular absence of even persuasive authority. Dicey maintained (see Dicey’s Conflict of Laws, 7th Edition p. 17 Introduction) that the jurisdiction in personam of English courts rests upon the principle of effectiveness which he defined as follows:

“The courts of any country are considered by English law to have jurisdiction over (i.e., to be able to adjudicate upon) any matter with regard to which they can give an effective judgment, and are considered by English law not to have jurisdiction over (i.e., not to be able to adjudicate upon) any matter with regard to which they cannot give an effective judgment.”
This principle received apparent approval in a dictum of Lord Merrivale, President of the Matrimonial Court in Tallack v. Tallack 1927 p. 211– wherein it was observed at p. 221;

“It is not clear that the judicial tribunals of the Netherlands are able to give effect at all to judgments of foreign courts even in personal actions against defendants living in Holland. But having regard to the terms of the Civil Code, and the evidence of Dr. Bisschop, I am satisfied that a decree of this Court purporting to partition the property of the respondent would be an idle and wholly ineffectual process.”
In Tallack’s case, 1927 p. 211 the court refused the petition of the husband for an order for settlement of the estate of the wife upon the children of the marriage after a decree for dissolution was passed, on the ground that to accede to it would be to extend the jurisdiction of the English Court against a defendant who was not at the material time domiciled within its jurisdiction, and who had appeared only to dispute the exercise of jurisdiction beyond territorial limits. This ground was sufficient to support the decision of the court and the observations as to the principle of effectiveness were plainly unnecessary. Schmitthoff in “The English Conflict of Laws” 3rd Edition at page 425 observes :

“………the jurisdiction of the courts is not based upon considerations of actual or probable effect of their decision. The argument from the effect of the judgment to the jurisdiction of the court represents an approach to the problem under investigation from the wrong end, in the same way as the argument from the effect of the choice of law to the choice itself is, in the words of Lord Russel, founded upon a fallacious basis.”

Graveson in his “The Conflict of Laws” 4th Edition at p. 338 observes :

“In the doctrine of effectiveness English jurists have sought to provide for the courts as reasonable and adequate theory to determine the exercise of jurisdiction. The reasonableness of the theory is assured by its practical basis; but its complete adequacy is refuted by the existence of English jurisdiction over defendants outside the jurisdiction in cases falling within Order 11 of the Rules of the Supreme Court ……….The basis of jurisdiction in the English conflict of laws is wider than, though it comprehends, the principle of effective enforcement of judgments. It lies in the: administration of justice.”
24. In an action in personam the court has jurisdiction to make an order for delivery of movables where the parties submit to the jurisdiction. A person who institutes a suit in a foreign court and claims a decree in personam cannot after the judgment is pronounced against him, say that the court had no jurisdiction which he invoked and which the court exercised, for it is well recognised that a party who is present within or who had submitted to jurisdiction cannot afterwards question it.

25. We may briefly refer to cases on which counsel for the plaintiffs relief in support of his plea that the judgment of the Mysore High Court in so far as it relates to movable outside the State of Mysore was not conclusive between the parties in the Madras suit.

26. In M.M.M. Messa v. M. B. M. Messa, ILR 1938 Bombay 529 the judgment of the Alexandria Supreme Court relating to the validity of a will executed by one Brium Menahim Messa was held not binding as a judgment in rem upon the parties to a litigation in Aden in which the defendants claimed to be executors under the will of the testator. The testator was not domiciled within the territory over which the Supreme Court of Alexandria exercised jurisdiction, and, therefore the judgment though in rem was not held binding upon the executors. That case has no bearing on the contention raised by the plaintiffs. Nor is the opinion of the Judicial Committee in Gurudayal Singh v. Rajah of Faridkote, 21 Ind App 171 (PC) of any assistance to the plaintiffs. In that case it was observed that a money-decree passed by a foreign court against an absent foreigner was by international law a nullity. Lord Selborne in that case at p. 185 observed :

“Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over movables within the territory; and, in question of status or succession governed by domicil, it may exist as to persons domiciled, or who when living were domiciled, within the territory. As between different provinces under the sovereignty (e.g., under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction; but no territorial legislation can give jurisdiction which any foreign Court ought to recognise against foreigners, who owe no allegiance or obedience to the Power which so legislates.

In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in a absentem by a foreign Court to the jurisdiction of which the Defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it and it must be regarded as a mere nullity by the Courts of every nation except (when authorised by special local legislation) in the country of the found by which it was pronounced.”
In Castrique v. Imri (1870) 4 HL 414 a bill issued by the master of a British ship on the owner for costs of repairs and necessaries supplied, was dishonoured, and the endorsee a French subject sued the master in the Tribunal de Commerce at Havre. In meantime, the owner mortgaged the ship and became bankrupt. The Tribunal ordered the master to pay the sum due which was “privileged on the ship.” In default of payment the ship was seized and detained. The judgment of the Tribunal was by the French law required to be confirmed by the civil court of the District and accordingly the Civil Court summoned the owner and the assignee in bankruptcy, but not the mortgagee and his assignee and in default of appearance decreed sale of the ship by auction. The consignee of the mortagee Castrique then commenced an action in the “nature of replevy” of the ship and the court of appeal held -though erroneously – that the bill of the sale to Castrique not having been registered was invalid and he had no locus standi to maintain the action. The ship was then sold to a British subject, who brought it to Liverpool and registered it in his own name. Castrique then commenced an action in the Court of Common Pleas in conversion against the purchaser pleading that the sale in France was void. The House of Lords held that there was a judgment in rem in the French Court and the title of the purchaser to the ship could not be reagitated in the courts in England.

27. The proceeding in the French Court was manifestly one in rem, for it was to enforce a maritime lien, which by the Fren law was a proceeding in rem, and as the ship was in the French territorial waters, it must in the English Court be so treated and held. These cases do not support the plea that the judgment of a foreign court qua movables outside its jurisdiction will not be conclusive between the same parties in an action relating to those movables in an Indian Court.

28. The plea that conclusiveness of a foreign judgment set up (sic) as a bar where that judgment was delivered after the suit in which it is pleaded was instituted is without substance. The language of Section 13 of the Civil Procedure Code, 1908, is explicit: a foreign judgment is made thereby conclusive between the parties as to any matter directly adjudicated and it is not predicated of the judgment that it must be delivered before the suit in which it is set up was instituted. Section 13 incorporates a branch of the principle of res judicata and extends it within certain limits to judgment of foreign Court if competent in an international sense to decide the dispute between the parties. The rule judicata applies to all adjudications in a “former suit”, which expression by the Explanation I to Section 11 of the Civil Procedure Code denotes a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. This explanation is merely declaratory of the law: the decisions of the Courts in India prior to its enactment establish that proposition conclusively. (Balkrishan v. Krishan Lal, ILR 11 Allahabad 148, Beni Madho v. Indar Sahai, ILR 32 Allahabad 67.) The dictum to the contrary in “The Delta: Erminia Foscolo, 1876-1 P D 393” is not sufficient to justify a departure from the plain words of the Indian Statute.

29. One more ground of incompetence of the Mysore High Court to deliver the judgment set up as a bar to the trial of the Madras suit in so far as it relates to movables needs to be adverted to. It was submitted that Balakrishnaiya, J., was not competent to refer to a Full Bench the appeals for hearing, after judgments recording final opinions were delivered by him and by Kandaswami Pillai, J. To recapitulate the facts which are material on this plea :Appeals Nos. 104 and 109 of 1947-48 against the judgment of the District Judge, Bangalore, filed by the executors were heard by Balakrishnaiya and Kandaswami Pillai, JJ. The Judges after hearing arguments differed on almost every question raised in the appeals. Balakrishnaiya, J., was for reversing the judgment of the Trial Court and Kandaswami Pillai, J., was for affirming the same. Balakrishnaiya J., observed in the concluding part of his judgment.

“In the result, I am of opinion that the judgments and decrees of the learned District Judge cannot be sustained and are liable to be set aside by dismissing the suits with costs throughout.”

After the opinion of Balakrishnaiya, J., was delivered Kandaswami Pillai, J., delivered his opinion. He observed,

“In the result, the judgment and the decree in the suits have to be confirmed, and regular Appeals NOs. 104 and 109 of 1947-48 have to be dismissed with costs to be borne by appellants (defendants 1 to 3) from the estate of Ramalingam,”
Thereafter, Balakrishanaiya, J., referred the case to a Full Bench under Section 15(3) of the Mysore High Court Regulation of 1884, and signed his “judgment.” The relevant statutory provisions then in operation relating to the procedure to be followed in the event of a difference between Judges constituting a Bench were these: Section 98 of the Mysore Civil Procedure Code provided :

“(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from such decree shall be confirmed.

Section 15(3) of the Mysore High Court Regulation, 1884, as amended by Act XII of 1930 provided:

“The decision of the majority of Judges comprising any Full Bench of the High Court or other Bench of the said Court consisting of not less than three Judges shall be the decision of the Court.

When a Bench of the High Court consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question shall be disposed of in the manner prescribed by Section 98, Civil Procedure Code or Section 429 of the Criminal procedure Code as the case may be or at the discretion of either of the Judges composing the Bench it shall be referred to a Full Bench and the decision of the Majority of the fudges on such Full Bench shall be the decision of the High Court.”
If Judges constituting the Bench differed and there was no majority concurring in varying or reversing the decree appealed from, the judgment had to be affirmed. But it was open to the Judges or either of them to refer under Section 15(3) of the Mysore High Court Regulation the questions on which there was a difference to a Full Bench. The true rule envisaged by Section 15(3) of Mysore High Court Regulation is that the Court or the referring Judge shall set out the material questions on which there is a difference of opinion without expressing any opinion on the result of the appeal. The two Judges did disagree, they disagreed on almost every question which had a bearing on the claim made by the plaintiffs, and they delivered their separate opinions expressing their mutual dissent, and even incorporated in their respective opinions the final orders to be passed on their respective views in the appeals. In so doing the Judges committed a procedural irregularity; but in our judgment, this procedural irregularity does not affect the competence of the Full Bench constituted to hear the reference under Section 15(3). Balakrishnaiya, J., and Kandaswami Pillai, J., did deliver separate and self contained opinions, setting out the final orders which in their respective opinions should be made in the appeals, but their intention was clear : they intended that in view of the difference of opinion (so expressed) the case should go before a Full Bench, and Balakrishnaiya, J., passed an order for reference presumably with the concurrence of Kandaswami Pillai, J.

30. The decision of the Allahabad High Court in Lal Singh v. Ghansham Singh, ILR 9 Allahabad 625 (FB), does not assist the plaintiffs in support of the plea that the reference to the Full Bench was invalid and the Mysore High Court was incompetent to hear the reference. In Lal Singh’s case, ILR 9 Allahabad 625 (FB), the majority of the Court held that

“Where a Bench of two Judges hearing an appeal and differing in opinion have delivered judgments on the appeal as judgments of the Court without any reservation, they are not competent to refer the appeal to other Judges of the Court under section 575 of the Civil Procedure Code (OF 1882).”
In that case, a reference was made on a difference of opinion between two Judges, but not on a question of law. By Section 575(2), Civil Procedure Code, 1882, difference on a question of law being a condition of reference, the reference was manifestly incompetent; it was so pointed out by Brodhurst. J., who was one of the Judges composing the original Bench of Judges who differed. There is, however, no such restriction in Section 15(3) of the Mysore High Court Regulation, 1884. Again, the principle of Lal Singh’s Case, ILR 9 Allahabad 625 (FB) as broadly enunciated by the majority of the Court has not been approved in many later cases in other High Courts; for instance, Karali Charan v. Apurba Krishna, ILR 58 CAI 549, Umar Baksh v. Commissioner of Income-tax, Punjab, ILR 12 Lahore 725 : (AIR 1981 Lahore 57X) (SB) and Jehangir v. Secretary of State, 6 Bom LR 131 at p. 206. In these cases it was held that in each case the question is one of intention of the Judges differing in their opinions. The Mysore High Court held in Narayanana v. Lingappa, 4 DLR (Mys) 118 (FB), that it is not illegal to refer a case under Section 15(3) of the Mysore High Court Regulation, 1884, after the Judges differing have recorded judgments including the final orders they are to make, and without any reservations. It was observed in the judgment of the Court :

“The long standing practice of this Court is that one of the Judges makes a reference by a mere record in the order sheet alter the judgments are separately pronounced.

It appears therefore that there was a settled practice in the Mysore High Court to refer cases under Section 15(3) after delivering differing opinions including the final orders to be passed in the appeal on such opinions. In adjudging the competence of the foreign Court it would not be open to us to ignore the course of practice in that Court even if it be not strictly warranted by the procedural law of that State. Whether the procedure of the foreign Court which does not offend natural justice is valid is for the foreign Court to decide and not by the court in which the foreign judgment is pleaded as conclusive. In Brijlal Ramjidas v. Govindram Gordhandas 74 Ind App 203, the Judicial Committee in dealing with the authority of the Indore High Court to transfer proceedings from the District Court of Indore observed :

“the question whether a foreign Court is the “proper Court” to deal with a particular matter according to the law of the foreign country is a question for the Courts of that country. There is no doubt that some Court in Indore was “a Court of competent jurisdiction.” It was for the High Court of Indore to interpret its own law and rules of procedure, and its decision that the High Court was the “proper” Court must be regarded as conclusive.”
The Madras High Court could not therefore investigate the propriety of the procedure followed by the Mysore High Court referring the case to the Full Bench and the judgment of the Mysore Full Bench was therefore not exposed to the attack of want of competence because the case was referred after the two Judges constituting the Bench had delivered separate and complete opinions expressing their views on the points in dispute.

31. In the plaint in the Bangalore District Court suit the plaintiffs claimed possession of the properties set out in the schedule on the ground that those and other properties belonged to the joint family of which they and their father Ramalingam Mudaliar were members, and to which they were entitled by survivorship on the death of Ramalingam. In Schedule ‘B’ to the plaint the first items was the business at Kolar Gold Fields. The claim was decreed by the trial court but the High Court reversed the decree and dismissed the suit. The Attorney-General submits that the judgment of the Mysore High Court was conclusive between the parties in respect of all matters adjudicated thereby and the Madras High Court in considering the claim of the plaintiffs in the suit before it was debarred from investigating whether the Kolar Gold Fields business was the separate property of Ramalingam. The issue as to the ownership of the Kolar Gold Fields business being directly adjudicated upon by the Mysore High Court, which was competent in an international sense as well as according to the municipal law of Mysore in that behalf, it was submitted, that adjudication was conclusive between the parties in the Medras suit. Reliance in support of this submission was placed upon the definition of ‘foreign judgment’ in Section 2(9) of the Civil Procedure Code 1908, and the use of the expression ‘master’ in Section 13 of the Code.

32. A foreign judgment is conclusive as to any matter directly adjudicated upon thereby; but it does not include the reasons for the judgment given by the foreign court. What is conclusive under Section 13 of the Civil Procedure Code is the judgment, i.e.; the final adjudication, and not the reasons, 74 Ind App 203. Section 13 in essence enacts a branch of rule of res judicata in its relation to foreign judgments, but not every foreign judgment is made conclusive in the Indian Courts by Section 13. To be conclusive, a foreign judgment must be by a court competent both by the law of the State which has constituted it and in an international sense, and it must have directly adjudicated upon the “matter” which is pleaded as res judicata. The expression matter” in Section 13 is not equivalent to subject matter: it means the right claimed. To be conclusive the judgment of the foreign Court must have directly adjudicated upon a matter, the adjudication must be between the same parties. and the foreign Court must be a court of competent jurisdiction. Story in his “Conflict of Laws, Eighth Edition at p. 768, Section 551 says :

“In respect of immovable property every attempt of any foreign tribunal to found a jurisdiction over it must be from the very nature of the case, utterly nugatory, and its decree must be for ever incapable of execution in rem.

Similarly, Dicey in his “Conflict of Laws” 7th Edition, Rul 85, enunciates the rule as follows:

“All rights over or in relation to an immovable (land) are (subject to the exceptions hereinafter mentioned) governed by the law of the country where the immovable is situate (lex situs).”
The exceptions for the purpose of the present case are not material. In the comments under the Rule, Dicey states at p. 513 :

“The sovereign of the country where land is situate has absolute control over the land within his dominion: he alone can bestow effective right over it; his courts alone are as a rule, entitled to exercise jurisdiction over such land. Consequently, any decision by an English Court which ran counter to what the lex situs had decided or would decide would be in most cases a brutum fulmen.
In Companhia de Mocambique v. British South Africa Co., De Souza v. Samb, 1892-2 Q B 358. Wright, J., observed at p. 366 :

“The proper conclusion appears to be that, speaking generally, subject to qualifications depending on personal obligation, it is a general principle of jurisdiction that title to land is to be directly determined, not merely according to the law of the country, where the land is situate, but by the Courts of that country, and this conclusion is in accordance with the rule ordinarily adopted by the jurisprudence of other countries.”
Title to immovable property may therefore be determined directly or indirectly only by the law of the State and by the courts of the State in which it is situate. A decision of a foreign Court directly relating to title to immovable property within its jurisdiction will of course be regarded between the same parties as conclusive by the Courts in India; but that decision is ineffectual in the adjudication of claims to immovable without he jurisdiction of that foreign Court, even if the foundation of title in both the jurisdictions is alleged to be identical. A foreign Court being incompetent to try a suit relating to immovable property not situate within its jurisdiction the grounds on which its decision relating to title to immovable property within its jurisdiction is founded will not debar investigation into title to other property within the jurisdiction of the municipal courts, even if the latter properties are alleged to be held on the same title. Every issue and every component of the issue relating to title to immovable property must be decided by the Court within whose jurisdiction it is situate : to recognise the authority of a foreign court to adjudicate upon even a component of that issue would be to recognise the authority of that Court to decide all the components thereof.

33. In Boyse v. Colclough, 1854-1 K and J 124 : 69 E R 396 the Court of Chancery in England was called upon to consider the effect to be given to a decree of an Irish Court determining the validity of a will of one Colclough who died leaving lands in England and Ireland. The Court in Ireland in a proceeding relating to the will declared it invalid. The plaintiff to whom the estate was devised under the will by Colclough, thereafter filed a bill in the Court of Chancery in England insisting upon the validity of the will, and for a declaration that the immovables in England passed under and as devised by the will. The defendant insisted that the decree of the Court in Ireland was in regard to the validity of the will conclusives as the judgment was of a court of competent jurisdiction between the parties. Page Wood V. C. rejected the defendant’s plea. He observed.

The foreign Court in this case did not try and could not try the effect of the will of the testator on lands in England. It is impossible that the question could ever, in any shape be raised before that Court in that suit, or, I apprehend, in any suit. The Court had before it a certain alleged will, purporting to devise certain Irish estates, and it directed an issue to try the validity of that will. The issue was found against the validity of the will and the court then decided upon which it could decide, namely, that instrument was not an operative devise of the Irish Estates.

This case was again brought before the Court, and the judgment is reported in Boyse v colclough, (1855) 1 KSJ 502 : 69 ER 557. Id was directed that to prevent misconception an order of the court of chancery in England, establishing the will should be Expressly limited to the Extent of the jurisdiction. In chockalingan v Doraiswamy, ILR 51 Madras 720 (AIR 1928 Madras 327) a dispute arose between two persons each of whom claimed the right to trusteeship of there religious Endowments know as Chidambaram, Mailam and Alapakkam charities. Of the Chidambaram charities all the lands were in British India and the charities were to be carried out also in British India. In the Mailam charities the performance was to be in British India and Pondicherry (French territory), and a large majority of the immovable properties were in Pondicherry and only one in British India. In a suit filed in the Subordinate Judge’s court at Pondicherry, the trial court held that the first defendant Doraiswamy could not act as trustee because the original trustee Murugayya had no power to appoint him. The Appellate Court reversed the decision and held that Doraiswamy was properly appointed, suit was then instituted in the British Indian Court in which the question as to the right of Doraiswamy to function in respect of immovable property in British India was questioned. The Court held that to Alapakkam charities, neither the plaintiff nor the 1st defendant had any rights because by the deed of settlement the right of trusteeship descended to the sons of Murugayya. About the Chidambaram charities it was held by the Court that the Pondicherry court had no jurisdiction as all the properties were situate in British India and “Charities were to be performed” in British India. About the Mailam charity, Kumaraswami Sastri, J., held that in respect of the property in British India the order was not binding, but having regard to the nature of the trust and the in expediency of having separate management and appropriation of the income of the trust the British Indian Courts would be justified in upholding the claim of the trustee appointed by the Pondicherry court in respect of that charity. Srinivasa Aiyangar, J., held that as the Mailam charity had its “domicile” in the French territory, the decision of the French Court with regard to the appointment of the trustee, and recovery by him of the office of trustee was a decision of a Court of competent jurisdiction within the meaning of Section 13, Civil Procedure Code. The judgment proceeded upon the theory of “domicile” of the trust which the learned Judge himself characterised as “inappropriate” but he held that “on a proper application and appreciation of principles of Private International Law” in disputes relating to the office of trusteeship the court of competent jurisdiction within the meaning of Section 13 is the court which can be regarded as court of the situs of the trust. It is difficult to accept this view expressed by Srinivasa Aiyangar, J. It is, however, noteworthy that both the learned Judges held that the decision of the foreign court qua the Chidambaram and the Alapakkam trust was not binding on the Indian Courts.

34. The decisions in Samson Ricardo and Johan Lewis Ricardo v. Garacias, 1845-12 Clause and Fin 368 : 8 E R 1450; Elizabeth Henderson v. Bethel Henderson, (1844) 6 QB 288 : 115 E R 111 and Bank of Australasia v. Nias, (1851) 16 Q B 717: 117 E R 1055 on which the executers rely are not of cases in which an issue decided by the foreign court was regarded as conclusive in the trial of a suit relating to title to immovable property in England. The decision in Dogliani v. Crispin, (1866) 1 H L 301 also does not support the plea of the executors. In that case the judgment of a Portuguese Court holding that the defendant was the illegitimate son of one Henry Cripsin and entitled according to the law of Portugal to inherit the property of Henry Crispin and entitled according to the law of Portugal to inherit the property of Henry Crispin who was of a particular station in society (a plebian and not noble), and was domiciled in Portugal was held binding between the parties in an administration action in the Court of Probate in England between the same parties relating to Government of England Stock. The Court in that case was not called upon to decide any question of title to immovables in England.

35. The rule of conclusiveness of a foreign judgment as enacted in Section 13 is somewhat different in its operation from the rule of res judicata. Undoubtedly both the rules are founded upon the principle of sanctity of judgments competently rendered. But the rule of res judicata applies to all matters in issue in a former suit which have been heard and finally decided between the parties, and includes matters which might and ought to have been made ground of attack or defence in the former suit. The rule of conclusiveness of foreign judgments applies only to matters directly adjudicated upon. Manifestly, therefore, every issue heard and finally decided in a foreign court is not conclusive between the parties. What is conclusive is the judgment. Again, the competence of a Court for the application of the rule of res judicata falls to be determined strictly by the municipal law; but the competence of the foreign tribunal must satisfy a dual test of competence by the laws of the State in which the Court functions, and also in an international sense.

36. The submission of the Attorney-General that the claim made by the plaintiffs in the Mysore suits was one relating to succession to the estate of Ramalingam, and the decision to the Mysore Court which adjudicated upon the question as to the right to succession was conclusive as to all property- whether within or without jurisdiction — need not detain us. The suit as framed did not relate to succession to the estate of Ramalingam: the plaintiff, claimed that they had acquired according to the well-recognised rule relating to coparcenary property, an interest therein by birth, and that Ramalingam’s interest in the property was on his death extinguished. Succession to the estate of a person is governed by the lex situs in the case of immovables, and in the case of movables by the law of his domicile, but these appeal raise questions not about the law applicable to the devolution of the estate, but about title which the testator could devise by his will. That title must be adjudicated upon in the case of immovables by the Courts of the country in which such immovables are situate and on evidence led in that court.

37. In considering whether the suit Fred by the plaintiffs was one relating to succession, cases like in the matter of the Hindu Women’s Right to Property Act, 1937. (1941) F C R 12 , and in the matter of, Powers of Federal Legislature to levy Estate Duty, 1944-6 F C R 317, which deal primarily with questions as to the power to legislate in respect of interest of a coparcener in a joint Hindu family have little relevance.

38. The suits also did not relate to the personal status of Ramalingam and his sons. The plaintiffs claimed in the Mysore High Court that the will of Ramalingam was invalid, because he was under the Hindu Law, by which he was governed, incompetent to dispose of thereby the property of the joint family. The dispute related primarily to the character of the property devised by the will, and the Mysore High Court held that the property devised under the will was his self-acquired property: it did not purport to adjudicate upon any question of personal status of the parties to the dispute before it.

39. We may now consider the plea that the judgment of the Mysore High Court was coram non judice.” It was urged that the Judges of the Mysore Court who constituted the Full Bench, were biased against the plaintiffs, that they were interested in the dispute before them and they dinied opportunity to the plaintiffs to defend the appeals. It was urged by the plaintiffs that Mr. Medappa who presided over the Full Bench had tried the probate proceeding in which the will of Ramalingam was up-held and in the judgment in that case had made severe structures against “the family of the plaintiffs,” and the witnesses appearing in support of the caveators’ case, that Mr. Medappa was a close friend of A. Wajid, the first executor under the will, that he had for many years before and after he became a Judge of the High Court used a motor car belonging to the estate in dispute and had attempted to dissuade Raju, advocate of the plaintiffs, from appearing for them in the suit relating to the estate. Against Mr. Balakrishanaiya, it was urged that he should not have sat on the Full Bench as he was to be examined as a witness in the matter relating to proof of the settlement of the dispute between the parties, that he had made up his mind and had delivered a judgment expressing a fine] opinion on the merits of the appeal and on that account was biassed against the plaintiffs, and that he had in the course of the hearing of the appeals sitting with Kandaswami Pillai, J., made diverse observations indicating that he was not open to argument, reconsideration and independent conviction on the merits of the dispute. It was also urged that the proceedings in the Mysore High Court were conducted in an atmosphere of vindictiveness towards the plaintiffs and that observations were made and orders were passed from time to time by Mr. Medappa and Mr. Balakrishanaiya at diverse stages of the hearing of the appeal which left no room for doubt that the two Judges were biassed against the plaintiffs and that they by their orders denied to the plaintiffs an opportunity of presenting their case before the Court.

40. Before we deal with the contentions it may be necessary to dispose of the contention advanced by the executors that it is nor open in this suit to the plaintiffs to raise a contention about bias, prejudice, vindictiveness or interest of the Judges constituting the Bench. They submitted that according to recent trends in the development of Private International law a plea that a foreign judgment is contrary to natural justice is admissible only if the party setting up the plea is not duly served, or has not been given an opportunity of being heard. In support of that contention counsel for the executors relied upon the statement made by the Editors of Dicey’s “Conflict of Laws.” 7th Edition Rule 186 at pp. 1010-1011 and submitted that a foreign judgment is open to challenge only on the ground of want of competence and not on the ground that it is vitiated because the proceeding culminating in the judgment was conducted in a manner opposed to natural justice. The following statement made in “Private International Law” by Cheshire, 6th Edition pp. 675 to 677 was relied upon:

“The expression ‘contrary to natural justice’ has, however, figured so prominently in judicial statements that it is essential to fix, if possible, its exact scope. The only statement that can be made with any approach to accuracy is that in the present context the expression in confined to something glaringly defective in the procedural rules of the foreign law. As Denman, C. J., said in an early case:

“That injustice has been done is never presumed, unless we see in the clearest light that the foreign law, or at least some part of the proceedings of the foreign court, are repugnant to natural justice: and this has often been made the subject of inquiry in our Courts.’

In other words, what the Courts are vigilant to watch is that the defendant has not been deprived of an opportunity to present his side of the case. The wholesome maxim audi alteram, partem is deemed to be of universal not merely of domestic, application. The problem, in fact, has been narrowed down to two cases.

The first is that of assumed jurisdiction over absent defendants……..Secondly, it is a violation of natural justice if a litigant, though present at the proceedings, was unfairly prejudiced in the presentation of his case to the Court. ”
It is unnecessary to consider whether the passages relied upon are susceptible of the interpretation suggested for private international law is but, a branch of the Municipal law of the State of which the Court which is called upon to give effect to a foreign judgment functions and by Section 13 of the Civil Procedure Code (Act V of 1908) a foreign judgment is not regarded as conclusive if the proceeding in which the judgment was obtained is opposed to natural justice. Whatever may be the content of the rule of private international law relating to “natural justice” in England or elsewhere (and we will for the purpose of this argument, assume that the plea that a foreign judgment is opposed to natural justice is now restricted in other jurisdictions only to two grounds wand of due notice and denial of opportunity to a party to present case) the plea has to be considered in the light of the Statute law of India, and there is nothing in Section 13 of the Civil Procedure Code, 1908, which warrants the restriction of the nature suggested.

41. By Section 13 of the Civil Procedure Code a foreign judgment is made conclusive as to any matter thereby directly adjusticated upon between the same parties. But it is the essence of a judgment of a Court that it must be obtained after due observance of the judicial process, i.e., the Court rendering the judgment must observe the minimum requirements of natural justice – it must be composed of impartial persons, acting fairly, without bias, and in good faith, it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case. A foreign judgment of a competent Court is conclusive even if it proceeds on an erroneous view of the evidence or the law, if the minimum requirements of the judicial process are assured: correctness of the judgment in law or on evidence is not predicated as a condition for recognition of its conclusiveness by the Municipal Court. Neither the foreign substantive law, nor even the procedural law of the trial be the same or similar as in the Municipal Court. As observed by Charwell, J., in Robinson v. Fennner, (1913) 3 K B 835 at p. 842. “In any view of it, the judgment appears according to our law, to be clearly wrong, but that of course is not enough : Godard v. Gray, (1870) 6 QB 13 139 and whatever the expression “contrary to natural justice,” which is used in so many cases, means (and there really is very little authority indeed as to what it does mean), I think that it is not enough to say that a decision is very wrong, any more than it is merely to say that it is wrong. It is not enough, therefore, to say that the result works injustice in the particular case, because a wrong decision always does. A judgment will not be conclusive, however, if the proceeding in which it was obtained is opposed to natural justice. The words of the statute make it clear that to exclude a judgment under clause (d) from the rule of conclusiveness the procedure must be opposed to natural justice. A judgment which is the result of bias or want of impartiality on the part of a Judge will be regarded as a nullity and the “trial coram non judice (Vassiliades v. Vassiliades, AIR 1945 P C 38 and Manak Lal v. Dr. Prem Chand, 1957 SCR 575 : ((S) AIR 1957 S C 425).

42. We may now deal with the diverse objections raised against the two Judges – Mr. Medappa and Mr. Balakrishnaiya — alleging bias and partiality against them and also against the Court collectively. In proceeding to deal with evidence it has to be remembered that we are dealing with the judgment of a foreign tribunal constituted according to the laws of the foreign State for hearing the appeal. We also cannot forget that the conduct of the plaintiffs and their lawyer may have appeared to the learned Judges as asking for unreasonable indulgence if not offering deliberate obstruction, and that the Judges in passing the diverse orders on which the plea of bias, prejudice and interest were sought to be founded were primarily concerned with the effective progress and disposal of the appeals.

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

These observations contained certain statements which are either inexact or not supported by evidence. According to the plaintiffs, Mr. Medappa became a Judge of the High Court at Mysore in 1944 and that is amply supported by evidence on the record. Again our attention has not been invited to anything on the record that the Mercedes car” was disposed of in the year 1945-46. But the evidence relating to the use of the motor car was excluded by this order.

44. About the attempts made by Mr. Medappa to persuade Raju not to appear for the plaintiffs in the District Court, no direct evidence was led. The direct evidence about the alleged discussion of Raju could only be of Raju and Mr Medappa but this evidence has, because the parties did not choose to examine them, not come or the record. But some indirect evidence was sought to be led before the High Court about the alleged discussion Raju had made an affidavit in June 1950 in this Court in certain proceedings taken by the plaintiffs for the issue of a writ of prohibition restraining execution of the decree passed in Appeals Nos. 104 and 109 of 1947-48 of the file of the High Court of Mysore on the ground that because Mr. Medappa and Mr. Balakrishaniya who were members of the Bench were incompetent for diverse reasons to hear and decide the appeals, the judgment of the High Court was a nullity. In that affidavit Raju stated that he was an Advocate for the plaintiffs who had filed two suits against the executors of the estate of Ramalingam and that “during the later part of 1945 and the beginning of 1946”, Mr. P. Medappa who was then a Puisne Judge of the High Court of Mysore, Bangalore, tried to dissuade him “from appearing for the family of Ramalingam and vehemently criticised the family members.” This was not evidence on which the Court could act. Raju was alive and could be examined: the Court had not directed proof of any facts by affidavits, and the executors had no opportunity to cross examine Raju on the Statements made in the affidavit. Vishwanath the first plaintiff deposed that sometime before the hearing of the appeals before the Full Bench of the Mysore High Court he was told by Raju that Mr. Medappa had fried to dissuade him from appearing for the plaintiffs in the District Court of Bangalore. He further stated that on July 25, 1949, during the course of the hearing of the appeals before the Full Bench Raju had stated in open Court that “he was not competent to take up the case on account of the dissuasion by the Chief Justice” and that “Chief Justice Medappa had sent for him and dissuaded him from appearing on behalf of Ramalinga’s family. Thereupon Chief Justice Medappa felt upset and refused to hear” Raju. He also deposed that Mr. Puttaraj Urs (who was for some time a Judge of the Mysore High Court) had told him that Raju had told Urs that Medappa had asked him (Raju) not to appear for the “plaintiffs’ family” and had sent for him and dissuaded him from appearing for Ramalinga’s family. Elaborate arguments were advanced before us as to the truth of the statements made by Vishwanatha and Puttaraj Urs. It was urged that the statement about the dissuasion of Raju was made for the first time in the Madras High Court on April 7, 1950 and that it was not made by Vishawnath in the Mysore Court or in the petitions to H. H. The Maharaja of Mysore for constituting “an ad hoc Bench” for hearing the appeals. It was pointed out that there were at least two earlier occasions in the Madras High Court in which Viswanath could have made the allegations relied upon by him in his affidavit dated April 7, 1950. Strong reliance was also placed upon a letter dated August 21, 1952, addressed by the 1st plaintiff Vishwanatha to the executor Abdul Wajid that the allegations made in Application No. 444 of 1950 and the affidavit filed in the Madras High Court that the Judges of the Mysore High Court were prejudiced and that Mr. Medappa had used the “estate motor- car” and had asked Raju not to appear for the plaintiffs had been put forth by him as their advocates told him that they were the only method of challenging the judgment of the Full Bench and that he had been assured that those allegations were true and that they would supply the evidence in support of these allegations and it was at their instance and believing their assurances that he incorporated the allegations in his affidavit. It was further stated that he was not able to find any credible evidence at that time to support these allegations and hence withdrew them all and proposed to let in no evidence on those allegations for the decision of the preliminary issue.

45. This question does not call for any detailed examination. There is no direct evidence about the alleged discussion of Raju by Mr. Medappa during the course of the hearing in the trial Court, and the indirect evidence is mostly hearsay and otherwise infirm. The evidence of Puttaraj Urs has little value: he has no personal knowledge about the attempted dissuasion of Raju by Mr. Medappa. He only relates what he heard from Raju. But the truth of the statement cannot be established by this indirect method. The evidence of Vishwanath as to what Raju told him before the hearing of the appeals is also of no value. About the incident which took place in the Court on July 25, 1949, there is the statement of Vishwanatha on the one hand which is contradicted by Abdul Wajid and Narayanaswamy, the two executors, and no questions in that behalf were asked to Mr. Balakrishna. In this state of the record we do not think that we would be justified in disagree with the High Court that the evidence that Mr. Medappa persuaded Raju, counsel for the plaintiffs, to forbear from appearing for the “plaintiffs’ family” has not been proved.

46. We may, however, state that we are unable to accede to the contention raised on behalf of the executors that the letter dated August 21, 1952, furnishes evidence that the allegation regarding dissuasion of Raju and about the use of the motor car of the estate was an after-thought and was made by Vishwanatha at the instance of his advocate. This letter was written when Suit No. 214 of 1944 was pending in the High Court at Madras. In that suit the judgment of the Mysore High Court was challenged on the ground that the Judges who heard the appeals were interested and biassed, and liberty was reserved by Rajagopalan, J., to the plaintiffs to lead evidence on those two matters only. We are unable to accent the contention that of his own accord Vishwanatha would address a letter to the executor Wajid and substantially destroy his case for setting aside the judgment of the Mysore High Court. Vishwanatha has stated in his evidence that he prepared the letter at the instance of Wajid to “prove his bona fides with Medappa.” He stated that the letter was written at Bangalore in the office of one Subramaniam brother of the executor Narayanaswami in the presence of Wajid about 2 or 3 months prior to August, 1952, and that about that time there were “meetings and talks of compromise” and that Wajid had told him that the letter “was necessary to prove the bona fides with Medappa before reaching the compromise.” Wajid has denied that he had persuaded Vishwanatha to write the letter. But the story about delivery of the letter at the residence of Wajid is highly improbable. Wajid says that the letter was delivered by band by some unknown person at his place in his absence. This letter was followed by another letter addressed to Subramaniam brother of the executor Narayanaswami dated August 25, 1952, in which there is a reference to the letter dated August 21, 1952. This letter was addressed to S.N. Subramaniam brother of Narayanaswami, and recites that a copy of the letter addressed to Wajid dated August, 21, 1952, was sent to Subramaniam. By that letter Vishwanatha requested Subramaniam as a “well-wisher of the family” and a friend of his father “to take into consideration the plight in which the family was and to intercede” on their behalf “with the executor to secure as much benefit as possible by way of compromise.” A photostat copy of this. letter has also been produced by Wajid. Vishwanatha stated that even this letter was prepared at the instance of Wajid. He asserted that the first letter was prepared on the representation that it was to be shown to Mr. Medappa, and the second letter was composed by Wajid. Wajid had denied the allegations. We do not think that Vishwanatha voluntarily wrote the two letters admitting that the allegations that Medappa was biassed against him and the ground for such allegations were invented shortly before April 7, 1950 at the instance of the lawyers of the plaintiffs.

47. Mr. Medappa did try the probate proceedings and dismissed the caveat filed by the plaintiffs but on that account we are unable to hold that he had any interest in the subject matter of the appeals or was biassed against the plaintiffs. Our attention has not been invited to any part of the judgment in the probate proceeding which might supply any ground for inferring bias. Even though some of the witnesses in the probate proceeding and in the suit for declaration of title of the plaintiffs to the properties were common it would not be possible to infer bias merely from the circumstances that Mr. Medappa as District Judge tried the earlier suit in which the enquiry was strictly restricted to the validity of the will and he subsequently was a member of the Full Bench of the Mysore High Court which decided the question of title set up by the plaintiffs.

48. The plea that Mr. Medappa and Wajid were close friend does not appear to have been denied by the executors. In his affidavit filed in June, 1950, the first plaintiff Vishwanath alleged that Mr. Medappa was a friend of the executors, and that Mr. Medappa was the Chief Steward of the Turf Club and the first executor Wajid was the Secretary and that they were “intimate and bosom friends.” Wajid did not deny these allegations. He merely stated that he “was once the Hony. Secretary of the Bangalore Race Club for about three months on account of the removal of the permanent secretary. As a stop gap arrangement. (he) being a Committee Member was appointed to act as secretary for this short period. Mr. Justice P. Medappa was appoint d by His Highness the Maharaja as a steward of the club,”

and submitted that :

“it was insulting and improper to suggest that a Judge was biassed because he came into social contact with other gentlemen of the State in the course of his public and social activities.”

In his affidavit dated July S, 1950, Vishwanath stated that Mr. Medappa and Abdul Wajid have “been very intimate friends, and chums for over a decade.”
49. Mr. Balakrishnaiya, it is true, did hear the appeals sitting with Chief Justice Paramshivayya. It is the plaintiffs’ case that after hearing arguments for over a fortnight, Mr. Balakrishanaiya suggested that the parties should compromise the dispute. Mr Balakrishanaiya has denied this statement he stated that the parties themselves decided to negotiate a compromise. Even if it be true that he suggested that the possibility of a compromise of the dispute be explored, bias on his pelt from that suggestion cannot be inferred. It is also true that sitting with Kandaswami Pillai, J., on March 15, 1949, he declined to order an enquiry in to the compromise set up by the plaintiffs on the ground that to record the compromise would “result in the entire intention of the testator being completely negatived.” Assuming that the order was in law, incorrect -on that question we cannot express any opinion – the making of this order will not justify an inference of bias on the part of Mr. Balakrishanaiya. It was also alleged against him that he had never ‘disguised his hatred’ of the “widow and children of Ramalingam’ and had ‘openly declared it by his frequent observations and Interruptions in the course of the plaintiffs’ counsel’s arguments’ (vice affidavit filed in June 1950, in the proceeding in this Court for a writ of prohibition). It was further alleged in the affidavit of Vishwanath dated April 7, 1949, that Mr. Balakrishanaiya had from the beginning become openly hostile and his hostility had become pronounced after the retirement of Chief Justice Paramshivayya.” In the course of his cross-examination Mr. Balakrishanaiya denied the suggestion that he was hostile to the members of the plaintiffs’ family. As no enquiry was permitted to be made on these matters by the order of Rajagopalan J., evidently all the material evidence is not before the Court. Vishwanath in his evidence has not spoken about the statements alleged to have been made by Mr. Balakrishanaiya from which bias may be inferred. We are unable to hold, therefore, on the plea of the plaintiffs that the conduct of Mr. Balakrishanaiya at the hearing of the appeal sitting with Kandaswami Pillai J., supports the plea that he was biassed. The contention that after the plaintiffs had informed the Court Mr. Balakrishanaiya was to be examined as a witness in the compromise petition, the latter should not have sat in the Full Bench has, in our judgment, no substance. The application for recording the compromise was disposed of on March 15, 1949, and the Court without enquiring into the truth or otherwise of the compromise set up, declined to permit such a compromise to be made a decree of the Court on the sole ground that it was “contrary to the intention of the testator.” There could, thereafter, be no scope far any enquiry into the truth of the plea set up by the plaintiffs about the compromise between them and the executors.

50. It would have been more consonant with justice if the application for recording a compromise was posted for hearing before a Bench of which Mr. Balakrishanaiya was not a member especially when the plaintiffs formally objected to him, but from the circumstance that of the Bench as constituted he was a member, an inference of bias cannot be raised. Even according to Vishwanath, Mr. Balakrishanaiya stated that he was “sitting for hearing the appeals” with Kandaswami Pillai, J., because he was so directed by the Chief Justice, and that Mr. Balakrishanaiya gave Vishwanath liberty to move the Chief Justice for an order for constituting’ another Bench. Viswanath says that he did go to see the Chief Justice but the Chief Justice ordered him out of his Chamber.

51. The last ground on which the plea is set up is that Mr. Balarishanaiya had delivered a judgment on the merits of the dispute and had incorporated therein the final order to be passed in the appeal, and thereafter he referred the case to the Full Bench and sat as a member of the Full Bench after making up his mind on the merits of the appeals. This, it is contended. is opposed to natural justice. It was submitted that it is of the essence of a judicial trial that the Judge should be unbiassed and must have no predilections for either side, but Mr. Balakrishanaiya having made up his mind on the merits of the dispute of which fact the judgment delivered by him is strong evidence, he was incompetent to sit in the Full Bench for hearing the appeals.

52. Our attention was invited by the Attorney-General to a large number of decisions of the Courts in India and England in support of his plea that in the absence of a statutory provision a Judge is not prohibited from sitting in an appeal or in an application against his judgment. Our attention was also invited to a number of decisions of the Allahabad High Court in which it was held that inreference under Section 575 of the Civil Procedure Code, 1882, the Judges differing should sit on the Bench together with other Judges and decide the appeal (e.g., Rohilkhand and Kumaon Bank Ltd. v. Row, ILR 6 Allahabad 468) and also to the practice prevailing in certain Chartered High Courts of Judges presiding at the Sessions trial being associated at the hearing on a certificate granted by the Advocate-General under Clause 26 of the Letters patent, e.g., Emperor v. Barendra Kumar Ghosh, AIR 1924 Allahabad 257 and Fateh Chand v. Emperor, ILR 44 Calcutta 477 (A I Et 1917 Cal 123) (FB) and to cases in which in appeals under clause 10 of the Letters Patent of the Allahabad High Court Judges who decided the proceeding in the first instance sat in the Court of Appeal e.g., Lyell v. Ganga Devi ILR 1 Allahabad 60 (FB), Daia Chand v. Sarfraz, ILR 1 Allahabad 117 (FB), Imam Ali v Vasaundhi Ram ILR 1 Allahabad 508 Nanak Chand v. Ram Narayan ILR 2 Allahabad 508 Nanak Chand v. Ram Narayan IL @ All 181 (FB), Diwan Singh v. Bharat Singh ILR 3 Allahabad 554, and also to the statutory provision of Order 47 of the Civil Procedure Code of 1908 permitting review before the Judge who decides a suit or appeal Reliance was also placed upon R. V. Lovegrove, 1951 1 All E R 804 in which it was held that on an application or appeal to the Court of Criminal Appeal (in England) there is as a general rule no objection to the trial Judge sitting as a member of the Court to hear the application or appeal. It may appear, that in the absence of a statutory provision the fact that a judge sits in appeal or in an application against a judgment after he has decided the case would not by itself render the judgment of the court invalid. In a strictly technical sense therefore it is true to say that a judge is not incompetent to sir in an appeal or application against his own judgment. But the Courts are not merely concerned to deal with cases in a rigid spirit of legalism. It is of the essence of a judicial trial that the atmosphere in which it is held must be of calm detachment and dispassionate and unbiassed application of the mind. It may be pertinent to observe that since the Federal Court was constituted and after this Court was invested with jurisdiction to try appeals there has occurred no case — our attention has not been incited to any – in which a Judge who had tried a case in the High Court or elsewhere sat in appeal against his own judgment sitting in the Federal Court or in this Court. The practice prevailing in the High Courts of including a Judge against whose judgment an appeal or proceedings in the nature of an appeal is filed, appears to have also fallen into desuetude and it is proper that it should whatever may have been the historical reasons in England and whatever may be the technical view as to the constitution of a Bench in which one or more Judges sit after they have expressed their opinion – not tentative but final,- the practice which permits a Judge to sit in appeal against his own judgment or in cases in which he had an opportunity of making up his mind and to express his conclusion on the merits of the dispute has little to commend itself for acceptance. We are therefore unable to agree that the circumstance that Mr. Balakrishanaiya delivered a final opinion in the appeals filed by the plaintiffs and thereafter sat in the Full Bench even after objection was raised by the plaintiffs to his participation may be discarded altogether from consideration in deciding whether in the light of other circumstances the plaintiffs had a fair trial and they were afforded an adequate opportunity of presenting their case before an unbiassed Court. If the circumstances established by the other evidence disclose a prima facie case of bias, the fact that Mr. Balakrishanalya notwithstanding the objection raised by the plaintiffs sat in the Full Bench ?? after expressing his final opinion may have to be taken into account.

53. We may now proceed to deal with the grounds on which it is claimed on behalf of the plaintiffs, they had no opportunity of being heard before the Full Bench of the Mysore High Court consisting of unbiassed Judges. The plaintiffs succeeded before the District Judge in establishing that the property disposed of by Ramalingam by his will dated September 10, 1942, was joint family property. Against that decision appeals were fled in December, 1947. The appeals were taken up for hearing in September 1948, and the hearing lasted more than a fortnight. On September 20, 1948, the Court adjourned the proceeding to enable the parties to negotiate a compromise. It is the plaintiff’s case that the dispute was settled, but that is denied by the executors. On November 22, 1948, according to the plaintiffs, the terms of compromise were to be filed in Court, but on that date one of the Judges – Mr. Paramshivayya – did not sit in Court lose he was “compulsorily retired.” Mr. Medappa who was appointed Acting Chief Justice was admittedly a friend of Wajid, the principal executor under the will of Ramalingam. The plaintiffs say that Mr. Medappa was biassed against the members of their family and they were unwilling to have the appeal heard by Judges who had dealt with the case or were close friends of one of the parties. On January 5, 1949, the plaintiffs submitted an application requesting the Court to move the Government of Mysore to constitute a special Bench. It was stated in that application that Mr. Balakrishanaiya would have to be witness in the compromise petition; Mr. Kandaswami Pillai had delivered a judgment in a connected proceeding; and that other Judges had “dissociated themselves” from the case. This application was rejected on January 10, 1949, by the Acting Chief Justice. Another application dated January 29, 1949, stating that the plaintiffs had approached the Government of Mysore to constitute an ad hoc special Bench to hear the appeals and praying that the hearing may be postponed was rejected on February 7, 1949, as not maintainable. “The appeals were then posted for hearing on February 14, 1949, but at the request of the executors the hearing was adjourned, the ground for adjournment being that their counsel was busy in a case posted on that date for hearing in a Court of Orissa. Another application dated March 7, 1949, for adjournment to enable the Government to consider the application for constituting a special ad hoc Bench was also rejected by order of the Acting Chief Justice on March 12, 1949. On March 15, 1949, the Court consisting of Mr. Balakrishanaiya and Mr. Kandaswami Pillai rejected the application for recording compromise set up by the plaintiffs. The appeals were then taken up for hearing. At that time another application for adjournment was made by counsel for the plaintiffs stating that the appeal against the order in the probate proceeding was pending before the Judicial Committee and the decision in that appeal may be awaited: this application was rejected on the ground that a similar application previously made had been dismissed. It is the plaintiffs’ case that Mr. Balakrishanaiya during the course of the hearing made observations from time to time that in his opinion there was no substance in the plaintiffs’ case. Vishwanath in his affidavit dated April 7, 1950, has stated what according to him transpired in the Court :

” 9. Finding that any further argument before Mr. Justice Balakrishanaiya was practically useless, my counsel Mr. N. R. Raghavachariar left for Madras and my counsel Sri L.S Raju filed a memo seeking for permission to retire as he could do no useful service to his clients in further addressing the Court in the circumstances mentioned.”

” 10. Objection was taken to this retirement by the other side and my counsel Sri L.S Raju who had by that time discontinued addressing further arguments was asked whether he had my consent to retire. I was then present in Court and Sri L.S Raju said that it is only at my instance, he was retiring.”

“11. At this stage Justice V. Kandaswami Pillai intervening stated that he was new to the case and that he has not made up his mind and requested my counsel Sri L.S Raju to give the benefit of his arguments.”

Vishwanath in the same affidavit also stated that Mr. Balakrishanaiya had been “openly hostile” to the plaintiffs. On this part of the case, by the order of Rajagopalan, J., no evidence was permitted to be given. The record, therefore, contains merely an assertion made by the plaintiffs and denial by the executors. After the judgment was delivered by the Court on April 2, 1949, the two Judges having differed the case was referred to a larger Bench. On June 23, 1049, the Registrar of the High Court notified that the appeals will be posted for hearing in the last week of July. It, appears that on July 4, 1949, the plaintiffs submitted an application for adjournment stating that Sir, Alladi Krishnaswami Ayyar, a leading member of the Madras Bar, who had argued the appeals at the earlier hearing and who was engaged to argue the appears was unable to attend the Court in the month of July, 1949, and requesting that adjournment be granted to enable him to appear and argue the appeals This application was rejected by the Registrar of the High Court on some technical ground precise nature whereof it is not possible to ascertain from the record. Another application was submitted on July 18, 1949, accompanied by a letter from Sir Alladi Krishnaswami Ayyar stating that he was proceeding to Delhi to attend the meetings of the Constituent Assembly (of which he was a member) and was on that account unable to attend the hearing of the appeals in July 1949: it was also stated in the application that the plaintiffs “were engaging” Mr. Sarat Chandra Bose – a member of the Calcutta Bar – to appear in the appeals, but he found September convenient.” This application was rejected as “belated”, and also because the parties had been litigating ever since December 1942 and the objections of the executors were “entitled to consideration.” On July 25,, 1949, another application supported by an affidavit was filed for adjournment of the case and that an ad hoc Bench in which the Chief Justice and Mr. Justice Balakrishanaiya were not included be constituted. It appears that at the hearing of this application there were “angry scenes in Court between the Acting Chief Justice and L.S Raju.” In his affidavit dated April 7,1950, Vishwanath has stated in paragraph 28,

“……….the Officiating Chief Justice Mr. Medappa was very wild with me and rude. He threatened me and said that I should disclose to him as to whom I consulted regarding this affidavit and if I did not do so, I will be sent to Jail. I was in a fix and in a state of terror and, when I said that among other counsels I consulted Sri L.S Raju also, Sri P. Medappa turned round and said, “I am glad you mentioned it, I know what to do for him.”
In paragraph 29 Vishwanth stated :

“Later on, the same day he asked Messrs, N.R. Raghabvachariar and L.S RAju to disclose what transpired between me and them in connection with the filing of the affidavit and they declined to do so on the ground that it would be breach of professional confidence.”
Then in paragraph 30, he stated :

“In disgust and as he had other business, Mr. N. R. Raghavachariar left for Madras the same day filing a memo of retirement. Sri L.S Raju also filed a memo of retirement.”
The order rejecting this application was pronounced in the after- noon of July 26, 1949, but the hearing of the appeal was taken up in the after- noon of July 25, 1949. In the affidavit dated April 11, 1950, filed in the Madras High Court by the executors in reply to the affidavit dared April 7, 1920, there was no denial of the allegations relating to what transpired in Court on July, 25, 1949. The evidence of Mr. Balakrishanaiya – though the replies given are somewhat vague – gives some support to the story of what is described as “a stormy session” on July 25, 1949. Mr. Balakrishanaiya was asked by the plaintiffs whether he remembered that on the first day, i.e., July, 25, 1949, it was a very stormy session.” The answer given was that he did “not understands”. To the question whether “Medappa threatened the respondent to tell him the name of the advocate who drafted the affidavit”, he answered There was a question whether it was drafted by the party or with the aid of Counsel.” The witness was then asked a composite question – “Did Medappa threaten him to put him in Jail? The storm means the storm of the session – the other colleagues were so distracted that they could not hear what was passing between Medappa and others?” No reply to first part of the question was apparently given. The answer recorded is, “So far we were concerned we were never distracted.” It is true that the witness denied that Mr. Medappa had told the first plaintiff Vishwanath that when it was disclosed that Raju had drafted the affidavit Mr. Medappa stated he knew “what to do.” When the Court insisted on hearing the appeal on July 25, 1949, it appears, that Raju and N. R. Raghavachariar (who belonged to the Madras Bar) applied for leave to withdraw. On that application an order refusing leave to withdraw was, it appears, immediately recorded. The order declaring permission to retire from the case bears the date July 25, 1949, but for some reason not apparent from the record, it was pronounced on 27, July, 1949, Arguments were heard on the 25th of July, 26th of July and 27th of July, 1949, and the Advocate of the plaintiffs were in the singular position of not knowing whether they did or did not continue to remain advocates for the plaintiffs. After the arguments of the executors, an application to enable the plaintiffs to secure the presence of Sir Alladi Krishnaswami Ayyar was made and was rejected, and judgment was reserved” without hearing any arguments on behalf of the plaintiffs. Judgment of the Court which runs into thirty closely printed pages was delivered on July 29, 1949, at 4 p.m.

54. From a resume of what transpired since Mr. Medappa was appointed the Acting Chief Justice, it cannot be doubted that the Judges of the Mysore High Court were not willing consider any request of the plaintiffs for formation of a Bench which did not include Mr. Medappa and Mr. Balakrishanaiya. Nor did they consider his applications for adjournment with sympathy. The attitude may appear to be somewhat rigid, but that attitude by itself may not justify an inference of bias.

55. The plaintiffs were since the appointment of Mr. Medappa as Acting Chief Justice making applications after applications for the constitution of a Bench in which Mr. Medappa and other Judges who had at some time concerned with this case be excluded. But a litigant is not entitled to choose the personnel of the Court to hear his case, nor can be insist upon an adjournment of the case because the date fixed for hearing is not convenient to his counsel. Convenience of counsel must subserve the larger interest of the administration of justice. It is true that where by a too strict observance of legal forms injustice has been done, by an apparently biassed tribunal, the decision may be declared “coram non judice” whether the decision is of the tribunal subordinate to the appellate jurisdiction of the court or of a foreign tribunal. But the only facts proved in this case in support of the plea of bias are that Mr. Medappa was a close friend of the executor Syed Abdul Wajid, and Mr. Balakrishanaiya had expressed his view on the merits of the plaintiffs’ case. It would have been consistent with the dignity of the Court if Mr. Medappa and Mr. Balakrishanaiya had not sat the Full Bench. But it cannot be forgotten that unless the Government of Mysore agreed to constitute an ad hoc Bench, there were no Judges in the Court who could form a Full Bench to hear the appeals. Mr. Puttraj Urs had recorded evidence in the suits out of which the appeals arose Mr. Malappa was also concerned with some proceedings connected with the litigation and Mr. Venkataramaiya the only remaining Judge had appeared as an Advocate for the plaintiffs. Mr. K. Kandaswami Pillai had retired. We may certainly not approve- if we are called upon to do so of the incidents in Court at and before the heraring. But all these incidents may very well be the result of deliberate provocation given by the plaintiffs and their lawyer Raju, who appears to have attempted frequently to thwart the effective hearing of the appeals.

56. The High Court has carefully weighed the circumstances and has held that from the various pieces of conduct attributed to Mr. Medappa and Mr. Balakrishanaiya, an inference of bias may not be made. We are dealing with the judgment of a foreign tribunal: however much we may regret the pronouncement of certain orders, especially orders declining to grant a reasonable adjournment to enable the plaintiffs’ counsel to appear and argue the case, the constitution of the Bench and the manner in which the appeals were heard, it is difficult for us to disagree with the High Court and to attribute bias to the Judges, who constituted the Full Bench.

57. The plea of bias of a foreign Court is indeed difficult to make out. The court will always presume, in dealing with the judgment of a foreign Court that the procedure followed by that Court was fair and proper, and that it was not biassed, that the court consisted of Judges who acted honestly, and however wrong the decision of the Court on facts or law may appear to be, an inference of bias, dishonesty or unfairness will not normally be made from the conclusion recorded by the Court on the merits. The party setting up a case that the judgment of a foreign court is not conclusive, because its proceeding was contrary to natural justice, must discharge this burden by cogent evidence, and we do not think that in this case such evidence has been led. The Judges had no pecuniary interest in the dispute. Bias in favour of the executors is sought to be inferred from close friendship of the Chief Justice with one of the defendants, and the expression of opinion by the other Judge on the merits – such expression of opinion being consistent with the practice prevailing in the Court – and refusal to grant facility to the plaintiffs to secure the presence of their chosen counsel. These grounds either individually or collectively do not justify us in inferring contrary to the view of the High Court that the Judges had forfeited their independence and impartiality and had acted not judicially but with bias.

58. The last question which falls to be determined is whether the estate devised under the will dated September 10, 1942, was the joint family estate of Ramalingam and his sons. If the estate belonged to the joint family, the will was undoubtedly inoperative. Certain facts which have a bearing on this question and which are mainly undisputed may be set out. Vydialingam was an employee in the Mysore Subordinate Judicial service and drew a monthly salary rising from Rs. 75/- to Rs. 125/-. He worked first as a translator in the Mysore Chief Court. In 1898 he was appointed Sheristedar of the District Court at Shimoga and was later transferred to Bangalore.One Loganathan Mudaliar, a building contractor carrying on business at Kolar Gold Fields, was a close friend of Vydialingam. In 1896, Loganathan fell in and after his illness took a serious turn in 1898, he was unable to attend his business. Loganathan executed a will appointing Vydialingam and other as guardian of his children and also executors under his will, and died in 1900. Vydialingam was maintaining an account with the Cavalry Road Bank at Kolar Gold Fields since 1891. By 1895 substantial amounts were credited in that account of which the source could not be the meagre salary of Vydialingam. In the years 1896 and 1897, diverse amounts aggregating to more than rupees one lakh were credited in that account. In May 1898 Vydialingam borrowed on his personal security from the Bank an amount of Rs. 2,000/- and gave it to Shanmugam, his eldest son. Shanmugam opened an account with the Cavalry Road Bank in October, 1899, by borrowing Rs. 25/-, but the entries in this account are few and for very small amounts. From the account maintained by the Mining Company it appears that the building construction work which was originally done by Loganathan, was later done by Shanmugam and since 1901 large amounts were paid to Shanmugam, some of which were credited into the Cavalry Road Bank account. Since July 1904 some book of account maintained in the name of Shanmugam for business, household and other expenses are available. About the year 1904. Devraj, the second son of Vydialingam, started amending to a building contractor’s business at Gadag. Ramalingam after completing his training in the Victoria Jubilee Technical Institute at Bombay also took to that business. Vydialingam died in May 1905. He was then possessed of two houses which were orally directed by him to be given to Ramalingam. The three brothers continued to live jointly even after the death of Vydialingam and the household expenses were jointly incurred. In 1910 Ramalingam sold one of the two houses and received Rs. 4,000/-. On March 30, 1912, a deed of release was executed by Ramalingam and Devraj under which Devraj and Ramalingam cash received Rs. 2,500/- and the Kolar Gold Fields business was thereafter carried on apparently as a partnership business between Shanmugam and Ramalingam. Manavalam, father-in-law of Devraj died in 1910, and Devraj migrated to Madras and settled down in that town to attend to the business of his father-in-law. Shortly after April 1912, Shanmugam proceeded to the United Kingdom. There is no clear evidence whether he took part in the business after he returned from his journey abroad. He continued to make withdrawals from his account in the business. By 1916, he had overdrawn an amount exceeding Rs. 35,000/- which was written off. Thereafter he ceased to have any interest in the business. Shanmugam died in 1924 and Devraj died in 1936.

59. It is the plaintiff’s case that Vydialingam was carrying on the business of a building contractor since about the year 1895 or 1896: into this business Shanmugam was first introduced and thereafter Devraj and Ramalingam. After the death of Vydialingam, according to the plaintiffs, this business was carried on by the three brothers till the year 1910 at different places. Devraj was attending to a branch of the business at Gadag: Ramalingam attended to the business at Kolar Gold Fields and also at Gadag. The plaintiffs claim that the business which was carried on by Ramalingam since the year 1916, was directly connected with the business which was inherited from Vydialingam by his sons and being in his hands ancestral business, the acquisitions out of the same were impressed with the character of joint family property. They also claimed that Ramalingam disposed of two ancestral houses which he received and used the sale proceeds in conducting his business and also Rs. 12,500/- received from the Administrator-General as the share, out of the estate of Loganathan, of his wife Gajambal who was the daughter of Loganathan. With this fund Ramalingam carried on the business of a building contractor in the conduct of which he was assisted by his sons and he acquired the estate in dispute. The case of the plaintiffs therefore was that Vydialingam was carrying on the business of a building contractor, that his sons assisted him in carrying on the business, that after his death the business which devoelved upon his sons was carried on by them till 1910 when Devraj, the second son ceased to be interested therein. Then Shanmugam, the eldest son severed his connection in 1916 leaving Ramalingam to conduct the ancestral business alone.

60. The executors contended that Vydialingam did not carry on the business of a building contractor that Shanmugam started his own business as a building contractor sometime in 1898 and neither his father nor his brothers had any interest therein, and that for the first time, in 1912, in view of his impending departure for the United Kingdom, Shanmugam admitted Ramalingam into his business as a partner and ultimately in 1916, Ramalingam became the sole owner of the business, because Shanmugam severed his interest therein. The case of the executors, therefore, was that the business in the hands of Ramalingam had no connection with any ancestral business or estate received by Ramalingam from his father.

61. The trial judge dealt with the question under five heads :-

Firstly, that Vydialingam carried on the business of a building contractor, he had left two houses which were unencumbered, and the contractor’s business. These became joint family estate in the hands of his son, and out of this estate Rarnalingam’s fortune was built:

Secondly, that after the death of Rarnalingam, his three sons carried on a joint family business. This joint family business was attended to by the three brothers at different places and that the joint acquisitions were divided sometime in the year 1910 and each brother received a share of Rs. 34,000/- odd, and out of the share received by Ramalingam, estate devised by the will was acquired :

Thirdly, that Ramalingam received a share of the ancestral estate of the value of Rs. 40,000/- and also Rs. 12,500/- as share of his wife out of the estate of Loganathan and the entire amount was invested in his business as a building contractor and out of which the estate in dispute was acquired :

Fourthly, that Ramalingam and his eldest son Vishwanath were actively associated in carrying on the building contractor’s business and the acquisitions out of the business were joint family estate : and

Fifthly, that Ramalingam had by his declarations impressed his acquisitions with the character of joint family property and therefore the property was joint family property.
He High Court held that the case of the plaintiffs under the 4th and the 5th heads was not established. About the 3rd head the High Court held that there was no clear evidence that Ramalingam had received an ancestral fortune of Rs. 40,000/- or Rs. 12,500/- on behalf of his wife Gajambal from the estate of Loganathan. But the High Court held that Vydialingam was carrying on the business of a building contractor since the year 1896 and that in this business were associated his sons as they grew up; that the business was carried on in the name of Shanmugam because Vydialingam being a public servant could not carry it on in his own name; that after the death of Vydialingam this business was conducted as a joint- family business; that in the year 1910, Devraj who was attending to the Gadag Branch of the business left the family and commenced attending at Madras to the business of his father-in- law, who died about that time; and that Shanmugam ceased to have any connection with the business in 1916. The High Court summarised its conclusion as follows :-

“The business which Ramalingam subsequently extended was a business which descended to him from his father, his two brothers having successively left it. It is probable – though is not clerly proved-that Ramalingam put the money which is obtained by sale of the house in Bangalore into business. He also put in the money he was paid under the release deed of 1912. Into the nominal partnership which he entered into with Shanmugam, he brought in as his capital a sum of Rs. 5,000/- representing a fragment of the old business. No less important, he also brought in the goodwill of the old business. At no time before the final few months preceding his death, when he had quarrelled with the members of his family, did Ramalingam, notwithstanding the claims he made in his will, and other documents, seek to exclude the members of his family. He made no effort to keep distinct what were acquired with the aid of indubitably joint-family nucleus from what it might have been possible to contend were the result of his own unassisted exertions. Taking all the circumstances into account we are of the opinion that the learned trial Judge was right in concluding that the properties which Ramalingam left behind must be treated as joint-family properties.”
62. To establish their case the plaintiffs relied upon the evidence of five witnesses -Kuppuswamy Mudaliar, Sitharam Naidu, Varadaraja Mudaliar, Venugopala Mudaliar and Dharmalingam, some of whom had been examined before the Court of the District Judge, Bangalore. By their evidence it was sought to prove that Vydialingam did carry on in and before 1898 business as a building contractor at Kolar Gold Fields and that this business had on his death descedcended to his sons. The plaintiffs also relief upon extracts from the accounts of Ramalingam and Shanmugam with the Cavalry Road, Bank at Nandidurg, and the extracts from the accounts of the Nandidurg Mining Company recording payments made from time to time to Shanmugam some of which were credited in the account of Vydialingam with the Cavalry Road Bank. Reliance was also placed upon the entries in the books of account maintained in the name of Shanmugam from the year 1904 showing receipts from Levraj at Gadag and amounts debited as sent to Devraj at Gadag, collection of rent from the houses credited in that account, expenses debited for purposes connected with building constructions items showing that Devraj or Vydialingam had participated in those transactions and other entries of house hold expenses showing that the account maintained in the name of Shanmugam was in truth the account of the joint family. The plaintiffs also relied upon certain letters written by Ramalingam and Devraj which from their terms evidenced their case that they were not acting merely as agents of Shanmugam but as owners of the business. Reliance was also placed upon the testimony of one Masilamany Pillai, an Advocate (who later acted as a Judge of the Madras High Court), that in the arrangements made a few months before March 30,1912, it was agreed that the goodwill of the Kolar Gold Fields business was allotted to Ramalingam. The learned trial Judge accepted the evidence of all the witnesses whose testimony was relied upon by the plaintiffs and held that the extracts of Vydialingam’s account established that he was carrying on business as a building contractor, and that the books of account maintained in the name of Shanmugam were family accounts.

63. In appeal, the High Court relied upon the evidence of only two of the five witnesses who deposed that Vydialingam was working as a building contractor. In the view of the High Court the evidence of Varadaraja Mudaliar and Sitharam Naidu but not of other witnesses was reliable. Witness Sitharam Naidu deposed that he was working as a building contractor since the year 1898 at Kolar Gold Fields, that he had taken up a “tenement in the compound of Loganath Mudaliar” and that he knew that Vydialingam was looking after the contract work of Loganath, that Vydialingam was assisted by his three sons, that Vydialingam was doing business of a building contractor and was also helping his father Vydialingam. The witness was described by the High Court as a respectable person “not readily corruptible “and who” had no ascertainable motive for giving false evidence.” Varadaraja Mudaliar deposed that he used to see Vydialinga Mudaliar when he (the witness) when to Oorgaum in 1898 to see his father in-law who was a mistry in the Oorgaum mines working under Loganath Mudaliar that his father-in-law at first worked under Loganath and later under Vydialingam Mudaliar. The evidence of this witness was also accepted by the High Court. The evidence of these two witnesses establishes that Vydialingam Mudaliar was conducting the business of a building contractor. There is also evidence that since the year 1898 Loganath was too ill to attend to his business and that he died in 1900. The testimony of the two witnesses Sitharam and Varadarj is supported by entries in the account of Vydialingam with the Cavalry Road Bank. The account of Vydialingam with the Cavalry Road Bank was opened in 1891. Vydialingam was an employee of the State of Mysore and the Maximum salary that he ever drew was Rs. 125/- p.m. Between the year 1891 to 1894 the entries in the bank account were for small amounts, the largest being Rs. 478/ 4-. In the year 1895 there were two items each exceeding Rs. 1,000/- credited in that account, but in 1896, the items of credit and disbursement were very large: it appears from the entries in that account that in the year 1896 1897 amounts aggregating to Rs. one lakh and more were credited in the account of Vydialingam and large disbursements were also made from that account. The High Court observed, and in our judgment the High Court was right in its view that the transactions in the book were “too large to be referred to the emoluments of Vydialingam as Sheristedar. It is legitimate inference that he has been engaged in other business.” The executors did not deny that an inference that Vydialingam was carrying on some business clearly arose from the entries in the books of account. But it was suggested that Vydialingam may have carried on the business of a money lending and for that purpose he may have withdrawn funds from the Cavalry Road Bank and utilised them as his circulating capital for his money lending transactions. It was asserted that Vydialingam was a Director of the Cavalry Road Bank and was on that account enabled to help himself to the funds of the Bank for his private business. But our attention has not been invited to any evidence on the record that Vydialingam was a director of the Cavalry Road Bank. The entries are of such large amounts and the credit and debit entries are so frequent that the inference that they were made in the course of a money -lending business could be difficult to make. It also appears that Vydialingam had mortgaged his house in 1892 for Rs. 2,500/- in favour of Thirunaglingam Pillai and he discharged this mortgage by borrowing a loan of Rs. 3,000/- on the security of the house from Loganathan on August, 31, 1892. The amount was repayable in monthly instalments of Rs. 501-. Another deed encumbering his house was executed by Vydialingam in 1894 for repayment of Rs. 2,000/-. These two mortgages remained outstanding till the year1903.

We are unable to accept the theory that Vydialingam carried on money-lending business when his own house was mortgaged, and he had agreed to pay the dues by instalments. The Cavalry Road Bank account also shows entries for amounts brought from the Madras Bank. These show that Vydialingam had received cheques which were eacashed with the Madras Bank and the amounts were received by him. These entries render the theory of a money lending business improbable. The entries in the bank account of Vydialingam support the case that he was carrying on a business and the testimony of two witnesses Sitharam Naidu the Varadaraja Mudaliar clearly shows that this business was of a building contractor.

64. Before 1898, even according to the case of the executors, Shanmugam was not employing himself as a building contractor. The entries in his account with the Cavalry Road Bank are for very small amounts till April 1901, when for the first time, Shanmugam borrowed Rs. 800/- on the security of jewels. In the account of the Mining Company also, there are no entries for any payments made to Shanmugam till 1901 for work done by him. The entries in the Cavalry Road Bank account therefore support the inference that Vydialingam was carrying on business and Shaurnugam had no business of his own at least till the year 1900.

65. The entries in the Cavalry Road Bank account for the period subsequent to 1900 also suggest that Vydialingam operated upon the account of Shanmugam. Part of the amounts received from the Mining Company account by Shanmugam for the work done were applied for satisfying the loans borrowed by Vydialingam. It has also to be noted that in Shanmugam’s account till 1901 no large amounts were credited. It appears from the account of the Mining Company that on January 18, 1901, he received R.S 5,000/- by cheque and other large amounts within the next three months aggregating to nearly Rs. 7,500/- in cash and cheques. But the account of Shanmugam with the Cavalry Road Bank shows only total credit of Rs. 780/- between October 1899 and April 1901 in the suspense account. No books of account about the construction work done in the name of Shanmugam are available for the period.

66. There are certain entries in the accounts of Vydialingam and Shanmugam which show inter-relation between the two accounts. For instance, on January 9,1904, according to the Mining Company’s account Shanmugam was paid three amounts Rs. 36/-, Rs. 362/14/14 and Rs. 12, 243/5/-. About this time Shanmugam was indebted to the Cavalry Road Bank in the sum of Rs. 3,400/- on promissory notes. On January 19, 1904. he paid Rs. 3,100/- into the Bank and partially satisfied this liability. Rs. 12, 120 /6/ 9 are found credited in the account of Vydialingam on January 23, 1904, and Rs. 12000/- are withdrawn on January 29. There is no direct evidence to connect the payments made in the accounts of Shanmugam and Vydialingam with the amounts received by Shamnugam, but it would be a reasonable inference, having regard to the proximity of time, that it was out of the amount of Rs. 15,900 received by Shanmugam on January 19, 1904 that this his liability for Rs. 3,100/- to the Cavalry Road Bank was discharged and an amount of Rs. 12,120/6/9 was paid into the Cavalry Road Bank and an amount of Rs. 305/- was utilised for satisfying the debts of Vydialingam in his personal account. There are also other entered disclosing interrelation between the accounts. Vydialingam borrowed Rs. 140/- on February, 18, 1904, under a promissory note dated February, 18, 1904 and the identical amount is credited in the account of Shnmugam under the entry “Receipt from V.S Vydialingam Mudaliar.” The Chitta number under which amounts are credited and debited are identical. On December 1,1904 , Shanmugam received a cheque for Rs. 10,000/- from the Mining Company. The cheque was credited in the Cavalry Road Bank on 10-12-1904. On the day Shnmugam was indebted in the sum of Rs. 2,625/- in the promissory note account. On December 19, he withdrew a total amount of Rs. 8.733/2/0. The chitha entry in that behalf is No. 113. On that very day there are two entries under Chitta No. 113 for payment of Rs. 1,050/- Vydialingam’s account. There are entries in Shanmugam’s account with the Bank showing debts made pursuant to directions given by Vydialingam. For instance, on March, 25, 1903, Rs. 500/- are debited pursuant to directions given by Vydialingam. There are two similar debit entries pursuant to directions given by Vydialingam. There are two similar debit entries pursuant to directions given by Vydialingam on April 4, 1903, and April 10, 1903, for Rs. 500/- each.

67. In Vydialingam account on July 13, 1903 there is an entry for Rs. 280/- paid for cart hire. That is also indicative of the fact that he was carrying on the business of building contractor, otherwise this entry is not capable of explanation. There are also entries in the account maintained in the name of Shanmugam showing expenses incurred by Vydilalingam and Devraj for travelling in connection with the building of be “English Church.” On August 7, 1904, Rs. 20/- were debited as spent by Vydialingam for going to Madras. There is also a debit entry of Rs. 3/- dated July 26, 1904, for travelling expenses of Devraj and Shanmugam. The account mantained in the name of Shanmugam for the period prior to July 1904 , is not produced. The account is available till 1907 and then there is a break. There is an account book for 1910-11, but not for the period immediately before April 1, 1912, when a partnership was started between Ramalingam and Shanmugam. There are numerous entries in this account showing that large amounts were received from Gadag from Devraj and also for amounts sent to him. On May 5, 1905, an amount od Rs. 1,000/- was raised on a promissory note and sent to Devraj. On July 19, 1905, there was remitance to Devraj by Shanmugam of Rs. 1,001/ 8/ 2. There is similar remittance on September 17, 1905. On September 26, 1905, Rs. 100/- had been paid through Ramalingam. There are credit entries for large amounts received from Devraj. On May 27, 1907, Devraj remitted Rs. 7,000/- from Gadag to Kolar Gold Fields. It is unnecessary to examine all these entries. Also in the account in the name of Shanmugam there are several credit entries for house rent collected from tenants of the two house which Vydialingam stete possessed of and debit entries for payment of municipal taxes. There are also in that account numerous entries for amounts collected by Ramalingam and paid into the account.

68. There are also four letters which throw some light on the connection of the three brothers with the Kolar Gold Fields business. On October 5, I909, Devraj addressed a letter to Ramalingam enquiring whether the letter did go to Gadag and gave several directions with regard to business matters. There is another letter dated October 6, 1909, also written by Devraj to Ramalingam which states “Pariapa” (Shanmugam) has come from Bangalore and he expects you here as soon as you finish your work there”. This letter also gives directions for procuring certain articles. There is a letter dated January 18,1911, addressed by Ramalingam to Shanmugam. By the letter Ramalingam informs Shanmugam that the question of (departmental) employment in the Nandidrg Company was discussed and that it was finally decided not to “do so” and to have the sundry works carried on as usual. He then proceeds to state that the Oorgaum Gold Mining had temporarily stopped all operations for “some unknown reasons.” Then there is reference to the Electricity Department of putting in the concrete in “N’s Bungalow.” There is also reference to “drudging on with the drains and the compressor work we have been having.” Regarding the Oorgaum Gold Mines he says that all the “works on hand” in the mines had been completed and the prospects for new work were gloomy. There is also reference the timber department. In the next letter dated February 11, 1911 addressed to Shanmugam, Ramalingam states that Mr. Bullen hau sent for him and had enquired of him whether he would undertake some small building contract at Manigatha where they were prospecting for gold and further that he (Ramalingam) had agreed “to do the work and promised to be there to receive instructions.” He also stated that he would return by the week end after the arrangements were made and he would take leave of Messrs. Mcky and Cooke and tell them that Mr. Ramaiah will look after the business (during his absence). The letters do suggest that Ramalingam and Devraj were interested as owners in the business about which information was given to Shanmugam and they were not merely acting as his agents.

69. There are numerous entries in the General Account also indicating that these accounts are not in respect of the personal transactions of Shanmugam but they are the accounts of the family. Expenses of various members are debited in that account. They are found side by side with business expenses. The High Court was, in our judgment, right in holding that these were not the accounts of Shanmugam personally but were of the joint family.

70. The Attorney-General, however, says that the following circumstances relied upon by him conclusively establish that the business done by Shanmugarn was his separate business. He points out that Vydialingam was a public servant and his service record showed that he was on leave only for short periods in the year 1898 and when he was posted at a considerable distance from Kolar Gold Fields, it would be impossible for him to attend at the latter place to any business requiring his continued attendance. But only a few extracts from the service record of Vydialingam have been printed in the record. Exhibit 368 shows that Vydialingam drew a salary of Rs. 125/- for 20 days for working as Nazir and Sheristedar, and that he was transferred to the District Court of Shimoga in September, 1901. There is also an entry that Vydialingam was appointed Munsif for 12 days in June, 1900. Exhibit 370 shows the amount of salary that Vydalingam drew from time to time. These documents do not show that it was impossible for Vydialingam to attend to the business. It, is true that in the Mining Company’s account payments made for construction work are debited till 1900 to Loganathan and after Loganathan’s death to Shanmugam but, evidently, Vydialingam being a public servant could not publicly appear as carrying on a building contractor’s business and receive payments for the work done by him in his own name. The debit entries in the name of Shanmugam in the Mining Company’s account are therefore not decisive, nor would they be sufficient to destroy the direct evidence of the two witnesses Sitharam Naidu and Varadaraja Mudaliar.

71. It was then urged that Cavalry Road Bank Account showed a payment of Rs. 2000/- in May, 1898, to Shanmugam and that this amount was returned to Vydialingam by Shanmugam in December 1902. From this it is urged that Shanmugam started business as a building contractor with the amount borrowed from his father Vydialingam and ultimately he repaid it after four years and seven months. But the evidence of the two witnesses Sitharam Naidu and Varadaraja Mudaliar does establish that the business of building contractor was conducted by Vydialingam and that is amply corroborated by the entries in the Cavalry Road Bank account. The debit entry relating to payment of Rs. 2,000/- to Shanmugam from Vydialingam’s account and the credit entry for repayment by Shanmugam will not, in our judgment, necessarily lead to the inference that this amount was borrowed by Shanmugam for starting his business as a building contractor. It was also urged that the account started in July 1904 and continued till the year 1912 was the private account of Shanmugam: We have already dealt with this question in dealing with the evidence of the plaintiffs and we are unable to hold, having regard to the numerous entries posted therein that the account was the personal account of Shanmugam.

72. It is also that Vydialingam was indebted to Loganathan for amounts borrowed by him on the security of his two houses and that the debts were paid off in the year 1903. But having regard especially to the direct evidence supported by contemporaneous entries in the account books, an inference that Vydialingam did not carry on any business will not be justified.

73. Strong reliance was placed on recitals in two documents a sale deed executed by Ramalingam for sale of the house inherited by him from Vydialingam by deed dated July 27, 1910, and a deed of release executed on March 30, 1912, by the three brothers. It is urged that the recitals in these two documents completely destroy the case that after the death of Vydialingam there was a subsisting joint family or that Ramalingam and Devraj had interest in the business carried on by Shanmugam. In the sale deed dated July, 20, 1910, executed by Ramalingam in favour of Mandi Mohammad Hussain Saheb it was recited that Shanmugam and Devraj had acquired properties out of their own earnings and were in enjoyment thereof, but he (Ramalingam) had no property of his own earning and therefore Vydialmgam had given oral directions that the immovable property belonging to Vydialingam should be in the possession or enjoyment of Ramalingam alone and that Shanmugam and Devraj should have no right therein and that in accordance with the directions and with the permission of his two brothers, Ramalingam was in possession and enjoyment thereof and that he conveyed one of the houses for Rs. 1,000/- to the vendee and in order to prove that his aforesaid brothers had no right in the property, he had got them to attest the document. The sale deed bears the attestations of Shanmugam and Devraj. There is another document dated 30-3- 1912, which is called a “Release Deeds”, between Shanmugam on the one hand and Devraj and Ramalingam Mudaliar on the other. The three brothers are described as doing business as building contractors. It is recited in that deed that in 1898 Shanugam started life as a contractor and merchant by his own exertions and without the use or aid of funds of the joint family to which he belonged and found his own amends of living” on the Kolar Gold Fields and elsewhere and by his own exertions he had made acquisitions described in the schedule annexed to the deed and that the same were his separate property. The deed also recited that before his death on May 3, 1905, Vydialingam had given directions for the disposal of the immovable and movable properties in favour of Ramalingam and accordingly the said properties had been appropriated first towards the discharge of his debts and thereafter the immovable properties had been taken over by Ramalingam and that nothing in the nature of an undivided Hindu joint family remained. ” The document then proceeded to recite that in consideration of a sum of Rs. 2,500/- paid by Shanmugam to Devraj and another sum of Rs. 2,500/- paid to Ramalingam and his minor son Vishwanath, Devraj and Ramalingam declared that they will not claim any “manner of right or title or interest in the property of shanmugam” described in the schedule attached to the deed and agreed that they or any of them had never any right, title or interest in the property and that If there was any such light it shall he deemed to have been released, relinquished and quit claimed so that Shanmugam Mudaliar remain the sole and absolute owner thereof.” In the schedule to the deed was described a bungalow at Robertsonpet and movables and outstanding of the value of Rs. 1,79,000/-. At the foot of the document were endorsed a receipt for Rs. 2,500/- by Devraj and another receipt for Rs. 2,500/- by Ramalingam. The Attorney General contended that the admissions in these documents were unequivocal and destroyed the case of the plaintiffs, that there was any subsisting joint-family after the death of Vydialingam or that the business carried on by Shanmugam was joint family business. Counsel submitted that the trial Judge had evolved a theory which was not supported by any pleading or evidence that the sale deed and the release deed were parts of a scheme of division of the property of the joint family of the three brothers.

74. It is true that the recitals in the sale deed show that the house sold by Ramalingam was given by Vydialingam to him under an oral direction and he dealt with that house on that fooling. It is also true that in the “Release Deed” it has been recited that Shanmugam was carrying on business as a contractor since the year 1898 without the aid of any joint family fund and that the acquisitions made by him were his self-acquired properties. The deed also recites that there was no joint family property which remained to be divided. But these two documents cannot be regarded as decisive of the question whether Vydialingam was carrying on the business of building contractor and whether that business devolved on his three sons. The three brothers during the lifetime of Vydialingam were living jointly and the building contractor’s business was being conducted during the lifetime of Vydialinga. We have already pointed out that the evidence shows that even before 1898 Vydialingam was carrying on the contractor’s business. Both during the lifetime of Vydialingam and thereafter till 1910 the three brothers lived together and the entries in the General Accounts maintained in the name of Shanmugam indicate that their expenses were jointly met. It also appears that the rent received from the houses which Ramalingam ultimately disposed of were taken into account and amalgamated with the family account. Large amount were sent to Devraj and were also received from him. Ramalingam is also shown to have participated in the business of Shanmugam. It is true that the trial Judge made out a case of partition of the joint-family estate in the year 1910, which after Devraj migrated to Madras, was given effect to in the deed of release dated March 30, 1912. This case does not find place in any pleading and is not supported by direct evidence. But the approach of the High Court to the evidence was different. In the view of the High Court the evidence indicated that the three brothers continued to carry on business as members of a Hindu joint-family which had devolved upon them from their father Vydialingam that the business was extended to different places such as Gadag, Calicut and others, that Shanmugam was after the death of Vydialingam also carrying on an independent business at Kalai in partnership with one Balkrishna and that the deed of release was in respect of the property which was claimed by Shanmugam as his separate property and not in respect of the joint family property. Evidently, the recitals in the release deed were made for maintaining a record that Devraj and Ramalingam had no interest in the property of Shanmugam. Admissibility of evidence to contradict the recital that there was in fact no property of the joint-family is not precluded by Section 92 of the Indian Evidence Act, as the dispute in this suit does not arise between the parties to the documents but between persons who claimed under Ramalingam who was the executant of the document.

75. The evidence of Masilamany Pillai who was examined on behalf of the plaintiffs in the District Court at Bangalore is in this context of some importance. The witness deposed that in 1912 he was consulted in connection with settlement of certain matters between Shanmugam Mudaliar and his two brothers, that he had discussions with Shanmugam and his lawyers regarding matters relating to the properties of the family and also in respect of the business in Kolar Gold Fields and that he had given advice after ascertaining from the three brothers several matters in respect of which a settlement had to be effected. He then stated that he had suggested that the release deed might be obtained from Devraj and Ramalingam releasing and relinquishing the claims if any they might have in respect of any property which were claimed by Shanmugam as his self-acquisitions, but he had himself not drawn up the deed nor had he seen it at any time. The witness then made a statement, that at the interview it “was understood that goodwill of the Kolar Gold Fields contract business was to be given to Ramalingam Mudaliar.” On this part of his evidence there was no cross-examination. This evidence is important in two respects (i) that the release deed was to be drawn up in respect of properties which were claimed by Shanmugam to be his self-acquisitions, and (ii) that it was understood that the goodwill of the Kolar Gold Fields business was to be of Ramalingam. If the Kolar Gold Fields business was the exclusive business of Shanmugam, which he had started, it is difficult to appreciate why the goodwill of that business should be given to Ramalingam when for a comparatively small amounts Ramalingam and Devraj were relinquishing all their interest which they may possibly have in that business, and in the earnings made by Shanmugam out of that business. The trial Court as well as the High Court have accepted this evidence.

76. The accounts of the family maintained in the name of Shanmugam immediately prior to April, 1912, have not been produced by the executors. It is true that it is their case that they did not finds these account books when they took over the estate of Ramalingam, whereas the plaintiffs assert that the account books were withhold by the executor because, if produced, they would have destroyed the defence raised by the executors. The High Court, on the evidence, was unable to raise any definite inference in regard to this matter. Admittedly, the executors had taken possession of the property of Ramalingam immediately after his death and it is somewhat surprising that no inventory of the property or books of account or documents of Ramalingam, if any, prepared at the time when the executors took possession of the property should have been produced. The executors are men of considerable experience of business affairs and Wajid the principal executor was an officer holding a high office in public administration. They would certainly have realised necessity of making an inventory of the documents and the property which they took in their custody. If the books of account immediately prior to 1st of April, 1912, had not come in their possession, the executors would have forthwith produced the inventory made by them at the time of taking over possession of the estate.

77. Even if we draw no adverse inference against the executors because they failed to produce the books of accounts immediately prior to April 1, 1912, there are other circumstances which support the inference raised by the High Court. The release deed does not take into account the business at Gadag which was conducted by Devraj and in which Ramalingam assisted. As we have already pointed out for carrying on this business large amounts were sent from the family account. There is evidence that there were assets in that business. In the General Account there are certain entries in the account of Devraj which cannot be easily appreciated. After the entry dated 5th March, 1911, crediting Rs. 280/-, there are some debit entries under the date 31st March, 1911, the following four of which are for amounts of Rs. 1,000/- and more : –

Debit given by V.V.S

Mudaliar in connection with cheque ….Rs. 1,000- 0-0

Debit S. R. B. cheque One ….Rs. 15,000- 0-0

Debit Electricity cheque one ….Rs. 1,619-15-8

Debit Nandidurgam cheque ….Rs. 9,322-12-6

Under the same date there are ten entriess of, which the following four are for Rs. 2,000/ and more : –

Credit V. V. S Moodr. given previously …Rs. 12,142-5-7

Credit …Rs..2,000-0-0

Credit …Rs. 10,000-0-0

Credit …Rs. 10,000-0-0

As a result of these entries Rs. 28,085-11-6 stood debited and Rs. 25,689 11-4 stood credited in the account of Devraj. Counsel for the executors has not attempted to explain these entries. The trial Court thought that the credit entries represented payments made by Ramalingam to Devraj. There is no evidence in support of this view. The learned Judge appears to have thought that because the good will was agreed to be given to Ramalingam — that is how he read the evidence of Masilamany Pillai -Ramalingam became the owner of all its assets, and the account was since the date of the agreement in reality an account of Ramalingam. There is no warrant for this view. But the entries do show that large amounts were credited in the name of Devraj and debited at the end of the year. If these entries were in respect of the Gadag business, the inference that the deed of release was only in respect of the separate estate of Shanmugam may receive some support.
78. The conduct of Shanmugam subsequent to March, 30,1912, has also some bearing on this question. Shortly after the execution of the Release deed Shanmugam left for the United Kingdom and it is stated that he returned to India after more than a year. It does not appear that thereafter he took any interest in the Kolar Gold Fields business but he continued to make large withdrawals. In the books of account of the partnership between Shanmugam and Ramalingam an amount exceeding Rs. 34,000/- initially credited to Shanmugam and Rs. 7,500/- to Ramalingam. But what the shares of the two partners in the business were is nowhere indicated. There is no deed of partnership, nor is any balance sheet drawn. There is no evidence of division of profits of the business. By 1916, Shanmugam had not only withdrawn the amount initially credited to him but he had withdrawn an additional amount of Rs. 35,538 /12 /-. He thereafter ceased to have any interest in the Kolar Gold Fields business and the amount overdrawn was written off debiting it to ‘premium account.” This conduct may indicate that after March 30, 1912, Shanmugam had no interest in the business even though the brooks of account showed that it was a partnership business. Even if it be hell that Shanmugam was a partner in the business from April 1, 1910 to May 1, 1916 the inference is inevitable that the building contract business carried on by Ramalingam thereafter was directly related to the business inherited from Vydialingam. The circumstance that Shanmugam ceased to have any interest in the business, after overdrawing Rs. 35,000/- odd, also corroborates the testimony of Masilarmany Pillai that the goodwill of the business was given exclusively to Ramalingam. From this evidence it is clear that Shanmugam was unwilling to continue the joint family business at Kolar Gold Fields and that he desired to secure an assurance from his brothers that they had no interest in his separate business at Kalai and acquisitions thereof and for that purpose, the “Release deed” was obtained from them.

79. The High Court held that the amount of Rs. 4,000/- received by Ramalingam by sale of the house and the amount of Rs. 2,500/- received from Shanmugam were put in the business by Ramalingam. Wajid deposed that the consideration received by sale of the house was given by Ramalingam to C. Savade and co., and to his sister. In our view the High Court was right in holding that the testimoney of Wajid who has deposed that he was present at the time when Rs. 500/- were given by Ramalingam to his sister is not reliable Wajid was a stranger to the family and there was no reason why Ramalingam should if the story by true keep Wajid present at the time of handing over an amount of Rs. 500/- to his needy sister. The story of Wajid that Ramalingam was carrying business of a building contractor in the name of Rambal and Co., and that in that business he suffered loss is not supported by any independent evidence and does not carry conviction.

80. Having regard to all these circumstances we do not think that the recitals in the sale deed and the deeds of release are by themselves sufficient to justify this Court in refusing to accept the findings of fact recorded by the High Court on appreciation of evidence.

81. The High Court has held that the business which Ramalingam carried on since April 1, 1912, apparently in partnership with Shanmugam till 1916, and thereafter exclusively was directly connected with the business which devolved upon the three sons of Vydialingam when he died in 1905. Prima facie, the findings recorded by the High Court are findings of fact, and this Court normally does not enter upon a reappraisal of the evidence, but we have ordered upon a review of the evidence on which they were founded, because the High Court of Mysore had on the identical issue about the character of the property devised under the will of Ramalingam arrived at a different conclusion.

82. A dispute with regard to the nature of the property called “Palm Grove” for the purpose of considering whether the judgment of the Mysore High Court is conclusive qua that property may be mentioned. It appears that at some time -about which there is no clear evidence — “Palm Grove” was agreed to be sold in plots by Ramalingam. In the suit, as originally filed in the Bangalore District Court “Palm Grove” was one of the properties in respect of which the plaintiffs made a claim. But that claim was withdrawn when the Madras properties were excluded, and no decision was therefore given by the District Judge in respect of the “Palm Grove” property. Before us no argument was advanced to show that during the life time of Ramalingam this property had acquired the character of movable property so that the decision of the Bangalore Court would operate as conclusive in the Madras suit. The High Court of Madras rejected the contention of the executors that it must be deemed to have acquired the character of movable property. Our attention is not invited to any material in support of the contention that it had acquired such a character.

83. Certain directions were, however, given by the learned trial Judge observing that :

“the proceeds realised from ‘Palm Grove’ constitute the assets of Ramalingam subject to certain equities that may arise in favour of Narayanaswamy Mudaliar………on the foot of the doctrine of quantum meruit to be determined in the final decree or in the execution proceedings.”
We need express no opinion as to the true import of this direction, for Narayanaswamy Mudaliar who was primarily concerned with the direction did not prefer an appeal against that part of the decree, and counsel have not asked us to interpret that part of the decree. The High court observed that in so far as the executors were concerned, all they can in reason ask is that such disbursements as being bona fide made should be regarded as proper debit against the estate and that they should not be surcharged in respect of such payments, and accordingly they added a qualification that the executors need not pay such sums as they had bona fide made to Narayanaswami Mudaliar in respect of that transaction either on the basis of quantum meruit or as a partner of the business.

84. In that view of the case the decree passed by the High Court on the footing that the plaintiffs are entitled to the immovable properties in Madras and not the movable properties in Madras must be confirmed.

85. The appeals therefore fail and are dismissed.

86. The High Court at Madras has held on the evidence, that the properties which were disposed of by Ramalingam by his will were not his separate estate but were joint family properties, whereas the Mysore High Court has taken a contrary view. We have on are view of the evidence agreed with the view taken by the Madras High Court. Evidently, as a result of judgment of the Mysore High Court the heirs of Ramalingam have lost property of substantial value. We think that in the special circumstances of this case the plaintiffs should not be out of pocket in respect of the costs of this litigation. We therefore direct that all costs of the plaintiffs between advocate and client, in the suit, the appeals in the High Court and in this Court should come out of the estate in the hands of the executors.

87. The remaining appeals may be now dealt with briefly.

C. A. Nos. 279 and 280 of 1958.

88. Appeals Nos. 279 and 280 of 1958 arise out of proceedings for revocation of probate granted by the Madras High Court. In T. S. No. 52 of 1944. Mr. Justice Chandrasekhara Aiyyar of the Madras High Court, by order dated July 17, 1944 granted probate to the executors under the will of Ramalingam dated September 10, 1942. The learned Judge expressly stated in the order that the probate granted by him was subject to the result of the appeal filed to His Majesty in-Council against the order of the Resident’s Court at Mysore. After the appeal to the Privy Council was disposed of for reasons set out in the principal judgment, by petition No 469 of 1953, the plaintiffs and Gajambal, widow of Ramalingam applied for revocation of the probate granted by the Madras High Court. This petition was heard together with the principal suit No. 214 of 1944. The learned trial Judge ordered that the probate granted on July 17, 1944, be revoked. Against that order an appeal was preferred by two of the executors to the Court of Madras. In appeal, the High Court restricted the operation of the revocation is so far as it affected the immovable properties in Madaras and vacatd the order in relation to the movables. Against the order passed by the High Court, Two Apeals – Nos 279 and 280 of 1958 have been filed. C.A. No. 279 of 1958 is filed by the sons and widow of Ramalingam, and they have clamied that the order of revocation made by Mr. Justice Ramalinam, Ramaswami be confirmed. In Appeal No. 28 of 1958 filed by the executors it is urged that the order of revocation be vacated in its entirety. At the hearing of the appeals no substantial arguments were advanced before us. The executors did not contended that even if this court holds, agreeing with the High Court of Madras that the will of Ramalingam was inoperative in so far it purported to dispose of the immovable properties of the joint family of Ramalingam and his sons, at Madras the order granting probate in respect of the immovable property should still continue to operate. They have conceded before us that such an order revoking grant of probate when it has become infructuous because of a decision in a suit relating to title to the property affected their by may property be made in exercise of the powers under Section 268 (d) Of the Indian Succession Act, 1925. The claim of the sons and the widow of Ramalingam for revocation of the order granting probate by the Madras High Court in its entirety cannot be sustained because, for reasons set out by this Court, they are unable to claim title to the movables of Ramalingam in Madras.

89. The appeals, therefore, fail and are dismissed with costs.

90. This appeal arises out of a suit filed by the executors under the will of Ramalingam for a declaration that 2000 shares in the India Sugars and Refinerires Ltd., standing in the name of Vishwanath , in truth, belonged to Ramalingam and that he purchased the same for himself and out of his self acquisitions but benami in the name of Vishwanath, and accordingly under the will of Ramalingam they were entitled to those shares as part of the estate. Vishwanath resisted the suit contending that the shares belonged to the joint family consisting of Ramalingam, his sons and that on the death of Ramalingam, his sons as surviving coparceners because owners of the entire property of the joint family including the shares. The trial Judge dismissed the suit filed by the executors. In appeal, the High Court of Madras held that the judgment of the Full Bench of the Mysore High Court dated July 29, 1949, was conclusive as between the parties as to title to those shares. The High Court accordingly allowed the appeal of the executors. Vishwanath has appealed against the decree of the High Court rejecting his claim.

91. For reasons set out in the principal appeals, we are of the view that the appeal must be dismissed. But we are of the view that the costs of Vishwanath as between the advocate and client of and incidental to the suit and the appeals in the I High and in this Court should come out of the estate of Ramalingam in the hands of the executors.

92. This appeal arises out of Suit No. 200 of 1944. The executors used Gajambal, widow of Ramalingam for a declaration that 2695 shares of the India Sugars and Refmieries Ltd standing in her name were purchased by Ramalingam benami out of his own funds and the same were his self-acquisition, and they as executors of the will of Ramalingam were entitled to those shares were held benami by Gajambal for the benefit of Ramalingam as the true owner. Gajambal admitted that she held the shares benami but she held the shares benami but she contended that they did not belong to Ramalingam but to the coparcenary, of Ramalingam and his sons and on the death of Ramalingam the shares devolved upon the surviving coparceners and the executors had no title or right thereto. This suit was tried with the principal suit No. 214 of 1944. The trial Judge held that the shares belonged to the joint family of Ramalingam and his sons and the executors acquired no right to the shares under his will. In appeal, the High court agreed with the view of the trial Ciyrt as to the title to the shares, but, in their vieiw, the judgment of the Mysore High Court in respect of movables including the shares in dispute was conclusive as to the rights between the parties. The High Court accordingly reversed the decree passed by the trial court and decreed the suit of the executors. Against that decree Gajambal has preferred an appeal in this Court which is No. 282 of 1958.

93. For reasons set out in the principal appeals, it must be held that the judgment of the Mysore High Court was conclusive as between the executors and Gajambal in so far as it related to title to the shares in dispute. The appeal therefore fails and is dismissed. But we are of the view that the costs of Gajambal between Advocate and client of and incidental to the suit and the appeals in the High Court and this Court should come out of the estate of Ramalingam in the hands of the executors.

94. This appeal arises out of a suit relating to an immovable property, Nos.1 and 2 Waddels Road, Kilpauk, Madras. Of this property, the second respondent T. A. Ramchandra Rao was the former owner. There were court proceedings in civil Suit No 10 of 1940 filed by Gajambal against T.A. Ramchandra Rao, and a compromise decree was passed in that suit and pursuant to that compromise, T.A. Ramchandra Rao sold the property to Gajambal by deed dated August 7, 1940. The executors of the estate of Ramalingam filed Suit No of 1944 in the High Court of Madras against Gajambal and T.A. Ramchandra Rao for a declaration that the Waddel Road property formed part of the estate of Ramalingam and that Gajambal was merely a benamidar for Ramalingam, and for an order for possession of the property from Gajambal and T.A. Ramchandra Rao and for mense profits at the rate of Rs 50/- per mensem from the date of Ramalingam’s death till the date of delivery of possession to the executors. Gajambal contended that the property belonged to her and that it was acquired by her out of her own funds. T.A. Ramchandra Rao denied the title of the executors and also liability to pay mense profits. The suit was also tried with the principles Suit No. 214 of 1944. The trial Court decreed the suit in favour of the executors, but the directed that the property belonged to the sons of Ramalingam and they were entitled to possession and mesne profits. Against the decree passed by the trial Court the executors preferred an appeal to the High Court. The appeal was dismissed.

95. In this appeal filed by the executors the principal ground set up in the Memo of Appeal is that the sons of Ramalingam were not parties to the suit, and no decree directing the executors to deliver possession to the sons of Ramalingam could be passed.

96. In the principal appeals 277 and 278 of 1958, we have held that the executors did not obtain any title to the immovable properties in Madras which were sought to be disposed of under the will of Ramalingam. It is true that to the Suit No. 91 of 1944, the sons of Ramalingam were not parties. But as on the view taken in the principal appeals, the executors acquired no title to the property in suit – that being the property belonging to the joint family to which Ramalingam belonged-interference with the decree passed by the High Court will not be called for.

97. Counsel for the executors has advanced no argument in support of the appeal. We may observe that T. A. Ramchandra Rao has set up a certain arrangement between him and Gajambal relating to his right to occupy the Waddel Road premises free of payment of rent, and it is his case that this arrangement was confirmed after issues were framed in suit No.91 of 1944 between himself and Vishwanath. T. A. Ramchandra Rao, it appears, did not prefer any appeal before the High Court of Madras against the decree passed by the trial Judge nor did he attempt to prove the agreement set up by him. HE has not preferred any appeal against the decision of the High Court to this Court. We dismiss the appeal filed by the executors. We may observe that for the purpose of deciding this case it is unnecessary to consider whether the arrangement set up by T. A. Ramchandra Rao is proved. The executors will pay the costs of the first respondent Gajambai in this appeal.

HIDAYATULLAH J.:

98. One Ramalingam, a prosperous contractor and businessman, died on December 18, 1942. Three months before his death, he executed on September 10, 1942, the last of his many wills. By that will, he cut off his eldest son, Vishwanathan and a daughter, Bhagirathi, completly from any benefit, gave some immovable property and shares to his widow, small bequests to his other daughters, his grandson, Tyagaraja, son of Viswanathan and his grand daughter from Bhagirathi. From the residue of his vast estate, he directed that Rs. 50,000/- be spent over a ward in a hospital and the rest be applied for certain charitable purposes of a public nature. He appointed three executors: (1) A. Wajid (a retired official of Mysore State?), (2) Narayana Swamy Mudaliar and (3) Section L. Mannaji Rao. For sometime before his death, his relations with his family were estranged and the latter had gone to the length of starting proceedings on June 2, 1942, under the Lunacy Act in the District Court, Civil and Military Station, Bangalore, against him. Some evidence was recorded in that case, and medical experts were examined. After the death of Ramalingam, the executors applied for probate of the will in the District Court, Civil and Military Station, Bangalore. This was Suit No. 2 of 1943. It was heard by Mr. p Medappa, who granted probate of the will on November 27, 1943. Two appeals filed against the decision (R. A. Nos. 1 and 2 of 1944) were dismissed by Court of the British Resident, Mysore on 5, July 1944. A further appeal to the privy council was admitted, but it was later declared by the Judicial Committee to have become incompetent due to the constitution changes in which the Civil and Military changes in which the Civil and Military stati on was handed back to the Mysore State. (P. C. Appeal No. 53 off 1948 decided on December 12, 1949). Meanwhile, applications for probate were also filed in the District Court, Bangalore and the Madras High Courts some of the properties affected by the will being situated, in these jurisdiction. Probates were granted but subject the decision of the appeal before the Privy Council.

99. We now come to other suits, some proceeding from the sons and widow of Ramalingam in the District Court, Bangalore and some, from the executors of his will. They were tiled in the Mysore State and in the High Court of Madras. Two suits were filed by the sons of Ramalingam in the District Court, Civil and Military Station Bangalore respectively. The first was Civil Suit No. 56 of 1942 and the and the second, Civil Suit No. 60 of 1944. These were suits for possession of properties, movable and immovable, together with the business of Ramalingam within the jurisdiction of these two Courts, on the averment that Ramalingam belonged to a Hindu coparcenary, and was carrying on the family business started with the family funds. These suits were directed against the executors and diverse persons said to be in possession of the properties. The plea of the executors per contra was that these were the personal properties and business of Ramalingam, over which he had full disposing power. The two suits were later consolidated and were decided in favour of the sons of Ramalingam by the District Judge. A third suit was filed by the sons of Ramalingam in the Madras High Court (O. Section), and was numbered C.S No. 214 of 1944 for possession of properties, both movable and immovable, said to be situated in Madras. A detailed reference will be made later to these properties.

100. In addition to these suits, many suits were filed by the members of the family and the executors of the will in the Madras High Court (O. Section). These were C. S Nos. 200 of 1944, 203 of 1945, 274 of 1944, 344 of 1946 and 91 of 1944, To these suits it is not necessary presently to refer. In all these other suits in Madras, the claim was for possession of some specific property either under the will or on the averment that it belonged to a joint family. Leaving out of account the suits concerning specific properties for the present, the net position was that C. S No. 56 of 1942 and C. S NO. 60 of 1944 related to properties in Mysore State, and C. S No. 214 of 1944 in the Madras High Court related to properties, movable and immovable, in Madras. In both, the main issue to be tried was whether Ramalingam died a member of a coparcenary, possessed of joint family property and joint family business.

101. The consolidated suit in the Court of the District Judge, Bangalore, was decided first and it was held that the properties were joint and that the will was incompetent. Two appeals were then filed in the Mysore High Court, R. As. Nos. 104 and 109 of 1947-48. The appeals were first placed before Paramasiviah, C. J. and Balakrishaniah J. They were adjourned at one of the earlier hearings, as a compromise was contemplated. Later, the parties were at issue as to whether a compromise took place. According to the executors, none took place; but according to the family, it did take place. The appeals were then fixed for September 23, 1948. On September 22, 1948, Paramasiviah, C. J., suddenly retired and Mr. P. Medappa was appointed Chief Justice. The appeals were then placed before Balakrishaniah and Kandaswami Pillai, JJ and the question of compromise was raised. The High Court, however, not enquire into the matter, since it was of opinion that the compromise, if any could not be recorded. This was on March, 15, 1949. After the appeals were heard, the two learned Judges differed, and they pronounced separate judgments on April 2, 1949. Balakrishaniah, J., was for allowing the appeals and Kandaswami Pillai, J., for dismissing them. According to the Civil Procedure Code in force in Mysore State, the judgment of the District Court would have been confirmed, unless a Judge of the Division Bench or both the Judges referred the case under Section 15(3) of the Mysore High Court Regulation, 1884. Balakrishaniah, J., referred the appeals to a Full Bench

102. The Mysore High Court then consisted of five Judges. Of these, one learned Judge had appeared in the case and wished to be left out. Of the remaining four, Balakrishaniah, J., already heard the appeals before, and expressed his judgement on the facts and the law involved in them. There remained three other Judges- the chief Justice, who had decided the probate case and had passed some structures against the family in his judgment, Puttaraja Urs. J. (who was appointed in place of Kandaswami Pillai, J.), who had recorded the evidence in C. S 60 of 1944 between 1945-47 and Mallappa, J.; Mallappa, J., had almost no connection with the case. The Full Bench that was constituted to hear the appeals then was composed of the Chief Justice, Balakrishaniah, J. and Mallapa, J. This Full Bench heard the appeals or rather the arguments on behalf of the executors, since the family took no part in the hearing and their counsel withdrew. The appeals were allowed by the Full Bench, Mallappa, J., pronouncing the judgment, with which the other learned Judges agreed. This was on July 29, 1949, the hearing having concluded on the 27th July, that is two days before. Civil Petitions Nos. 61, 62, 49 and 50 of 1949-50 were filed to obtain a review, but were dismissed by the Full Bench on November 10,1949.

103. Thus finished the Mysore part of the litigation. Before the Full Bench in the Mysore High Court heard the appeals, fruitless efforts were made by the sons of Ramalingam to induce the Maharaja to appoint ad hoc Judges to hear the appeals. Requests were made by them to the Chief Justice to grant them time, so that the State authorities might be moved against and also to adjourn the appeals on other grounds. The sons of Ramalingam said that they were anxious to secure the services of outside counsel to argue the appeals, but the requests were rejected. These are all matters of record, and there is no dispute about facts. It was alleged in the Madras suit that there were unpleasant scenes between Medappa C. J., and one Raju, counsel for the appellant, about which I shall say something later, as the facts are in dispute. In short, the appeals were allowed, and the two suits were dismissed.

104. This is a convenient stage to refer to the pleas raised in the Mysore suits and the reliefs claimed therein. In this connection, we need refer only to G. S No. 56 of 1942. The case of the sons of Ramalingam was that Ramalingam received from his father considerable paternal estate, both movable and immovable. The immovable property was sold and with the proceeds of the sale and other ancestral assets, several businesses were started by him commencing with the business of a building contractor in Kolar Gold Fields. He prospered in this joint family business, and all the properties were acquired from this nucleus and were joint family properties, and even if there was any separate property it was thrown into the common stock and became joint family property. Possession was thus claimed of all the properties in the Schedules to the plaint including inter alia :

Schedule A: (l)Houses Nos. 1 and 2, Waddells Road, Madras (Item 13).

(2) Palm Grove, Madras (Item 18).

(3)18566 shares-Indian Sugar and Refineries, Ltd., in the name of Ramalingam (Item 22).

(4)1000 shares of the Indian Sugars and

Refineries Ltd., in the name of A. Wajid (Item 24).

Schedule B: (1) Kolar Gold Field business (Item 1).

(2) Vegetable oil building contract (Item 5).

(3)Oriental Films (Item 6).

105. The executors denied that there was any ancestral nucleus or property or funds or business from which the estate was built up. They denied the existence of a joint family business. According to them, Ramalingam by his unaided enterprise carried on business for over 26 years and acquired all the properties in which no other member of the family had any share. Later, the plaint was amended to exclude the immovable properties outside the State of Mysore. Suitable issues were framed to cover these allegations and counter- allegations and all of them were finally decided in favour of the executors. The district Judge decreed the suit, but it was held by the Full Bench that none of the properties was acquired with the aid of joint family nucleus, and that the Kolar Gold Field business was the private business of Ramalingam. The decree of the District Judge, who had ordered possession of the properties in favour of the family, was reversed.

106. The suit in the Madras High Court had been stayed to await the decision of the Mysore suits. In that suit, possession of the movable and immovable properties in Madras was claimed. The immovable properties were :

(1) House No. 1, Weddells Road, with land,

(2) House No. 3, Weddells Road, with land etc.

(3) Some parcels of land.

(4) House No. 14, Monteith Road, Madras.

The movable properties were :

(1) Assets of Oriential films, Madras.

(2) 18366 share of Indian Sugars and Refineries Ltd., Hospet.

(3), 1000 shares of Indian Sugars and Refineries Ltd., Hospet.

(4) Balance of the amount for building constructed for the Mysore Vegetable Oil, Co., Madras.
It was stated in the plaint that since the executors had objected to the jurisdiction of the Mysore Courts to entertain the claim in respect of the properties situated in Madras, another suit was being filed. The same pleas about the joint family its nucleus, its family members were raised. The defence was also the same. When the judgment of the Mysore High Court was relied upon the executors as conclusive on the point of jointness of the family, its nucleus and the joint character of the Kolar Gold Fields business, the sons of Ramalingam alleged that the judgment was not in accordance with rules of natural justice, that the decision was coram non judice, and that the Chief Justice and Balakrishniah J., were not competent Judges, due to their bias and interest, to sit on the Bench. In the course of numerous affidavits, the eldest son, Vishwanathan, made several allegations showing the interest and prejudices of Medappa, C. J., his conduct in and out of Court, and the violation of the rules of natural justice by the Full Bench, over which he presided. Similarly, the presence of Balkrishniah, J., who had already given one judgment in the case had attempted a compromise between the rival parties, was alleged to render him incompetent to sit on the Full Bench. On the other side, the executors claimed that the Mysore High Court had finally decided the issue of jointness in relation to all property movable and immovable. They claimed that in this suit the questions of jointness of the family, the character of Kolar Gold Fields business and the absence of nucleus must be taken to have been conclusively decided in the Mysore suits and appeals, and could not be reopened. The sons of Ramalingam denied that the Mysore Court was a Court of competent jurisdiction, in so far as the property in Madras was concerned. In short, the executors claimed that the Mysore judgment, in so far as any matter decided therein, was conclusive, while the family maintained that it was not a Court of competent jurisdiction and the judgment was itself coram non judice, and had been rendered by violating the principles of natural justice. The first fight thus was under Section 13 of the Civil Procedure Code.

107. Though numerous facts were alleged to show bias and interest on the part of the Chief Justice, the parties went to trial on one allegation only. The allegations against Medappa, C. J. were (a) that he was a close friend of A. Wajid, (b) that he had decided the probate case, had heard the witnesses now relied upon, and had already formed pronounced opinions about them and his judgment in the probate case was in danger of being annuliled by the decision of the District Judge under appeal before him, as the letter had held the family and the properties to be joint, (c) that when he was a District Judge, he was using a car belonging to the executors and was thus under their obligation and also interested in them, and (d) that he had tried to dissuade Mr. Raju, counsel for the sons of Ramalingam, from conducting this case. Rajagopalan. J., who heard the suit in the earlier stages, selected from the allegations two which, according to him, if established, were capable of establishing an ‘interest’ and a ‘bias’ in Medappa, C. J. He declined to frame issues about the other allegations. The two selected allegations were the use of the car and the attempt to dissuade Mr. Raju Rajagopalan, J., also held that the judgment of the Mysore High Court, did not constitute res judicata at least in respect of the immovable property in Madras, (a) because this question was not considered by the Mysore High Court due to the amendment of the plaint, and (b) because the Mysore Court had no Jurisdiction to try it.

108. Against the decision of Rajagopalan, J., both sides appealed. The executors were aggrieved by the decision about res judicata/i> and the enquiry into the conduct of the Chief Justice, and the sons of Ramalingam, by the restricted enquiry into the conduct of the Chief Justice. The Divisional Bench, which heard the appeal, agreed with Rajagopalan, J., about res judicata, and affirmed that part of his order. The Divisional Bench held that the incident of the use of the car was too old, even if true, to show interest and was not relevant. The issue regarding the dissuasion of Mr. Raju was allowed to stand.

109. The allegations against Balakrishniah, J., were that he had suggested the compromise when sitting with Paramasiviah, C. J., and had discussed the terms, that he had thus rendered himself a witness, that he made strong remarks against the family during the hearing of the appeals when sitting with Kandaswami Pillai, J., and the same were expressed in his judgment dated April 2, 1949, and that he showed his bias by awarding costs not out of the estate but against the sons of Ramalingam. He was said to be incompetent to sit on the Full Bench in view of his judgment already pronounced. There were general allegations about the refusal to adjourn the hearing at the request of the sons of Ramalingam, and even when Sir Alladi Krishnaswami Ayyar the senior counsel, was to be absent on public work in the Constituent Assembly.

110. The parties then went to trial before Ramaswami, J. More affidavits and counter-affidavits were filed. Though fresh evidence was also led in this suit, by consent of parties the evidence recorded in the two Mysore suits was treated as evidence in this suit. The records of these suits and of the Privy Council were also marked by consent. The executors asked that the question of the application of Section 13 of the Civil Procedure Code be tried as a preliminary issue. This was declined, and a Letters Patent Appeal and one to this Court also failed. The affidavits filed in this Court were also marked in the case.

111. Among the witnesses examined in the case were Viswanathan, the eldest son of Ramalingam, and Puttaraja Urs, J., for the plaintiffs, and Abdul Wajid, Narayanaswami Mudaliar and Balakrishniah, J., for the other side, Medappa, C. J., and Raju were cited but were not examined. After a protracted trial, Ramaswami, J., held that the judgment of the Full Bench of Mysore was coram non judice and that the judgment was thus not conclusive under Section 13 of the Civil Procedure Code. He further held that the properties in suit were those of a joint family. The claim of the sons of Ramalingam, was thus decreed, and possession was ordered against the executors and also accounts. Ancillary orders were passed in the other suits already mentioned, which were tried along with the main suit, C. S No. 214 of 1944.

112. The executors appealed under the Letters Patent. The Divisional Bench upheld the findings about the joint family, but reversed those about the Mysore judgment being coram non judice. As a result, the Mysore judgment was held to bind the Madras Court in respect of the movables but not in respect of the immovable property in Madras. From the judgment of the Divisional Bench, Civil Appeals Nos. 277 and 278 of 1958, have been filed respectively by the sons of Ramalingam and the executors.. The sons of Ramalingam raise the issue that the judgment of the Full Bench of the Mysore High Court was coram non judice and not conclusive in respect of the movables, while the executors claim that it is conclusive in respect of any matter decided by it. particularly about the Kolar Gold Fields business being the private business of Ramalingam, contending that the only point that was open for decision in the Madras High Court was whether any item of property was acquired without the funds of that private business.

113. Though these appeals were argued at considerable length the points were only two. They are: I. the application of Section 13 of the Civil Procedure Code from these view points; viz., (1) violation of the principles of natural justice, (2) bias and interest of some of the Judges constituting the Full Bench), (3) competence of the Mysore Courts as to the controversy between the parties and the extent of that competence; and II. whether Ramalingam died in, jointness and whether the estates left by him including his businesses belong to the join family, the sons of Ramalingam being the survivors.

114. Section 13 of the Civil Procedure Code reads :

“13. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of British India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in British India”.
115. It will thus be seen that the case was sought to be brought under Clauses (a), (c) and (d) of the section by the sons of Ramalingam, while the executors deny the allegations and claim the benefit of the opening words. I shall, therefore, take up these matters first and shall consider the evidence before deciding how far, in law, the judgment is conclusive, if at all, I shall follow the same order which I have set out.

116. The first head is whether during the hearing of the appeal by the Full Bench the principles of natural justice could be said to have been violated. I his question divides itself into two parts. The first part concerns the actual hearing and the second, the composition of the benches, the first contention is that the Full Bench did not give a lair hearing and compelled the case of the tons of Ramalingam to go unheard. This was said to have arisen from she refusal to adjourn the appeals as requested by the sons of Ramalingam. Now, such a question can hardly be considered by another Court not hearing an appeal but deciding whether the conduct of the Judges of a foreign Court who heard the appeal, amounted to a violation of the principles of natural justice, unless an extremely clear and Strong case is made out. The conduct of a case is a matter ordinarily for the Court hearing it. All that is stated is that the sons of Ramalingam were hustled and not granted some adjournments, when they asked for them. Whether a particular prayer for adjournment ought to have been granted is hardly a question for another Court to decide. In this case, the conduct of the sons of Ramalingam cannot be said to be entirely correct. It is a matter of record that from the moment the names of Judges of the Full Bench were announced they had no desire to have the case heard and decided by them. Admittedly, they made applications to the Maharaja and Dewan for the appointment of ad hoc Judges. The attempt to get the appeals adjourned was based on two reasons: firstly to avoid the presiding Judges, or at least two of them, and secondly, to enable Sir Alladi Krishnaswami Ayyar to appear for them. The attempt to secure adjournments was not only to suit their senior counsel but also to play for time to get other Judges appointed, if possible. As to the senior counsel, it is enough to say that there were other counsel in the case, but the sons of Ramalingam asked them to withdraw from the case. This was not done bona fide but merely to force the Court to grant an adjournment it had earlier refused. In my judgment, the sons of Ramalingam had long notice of the date of hearing, and if they wished to engage other counsel, they had ample time and opportunity to do so. It was argued that the appeals were adjourned once by the Full Bench to accommodate counsel for the executors, but when Sir Alladi asked for an adjournment, it was refused. It was said that this showed a double standard. It is common knowledge that an adjournment is sometimes given. because it is asked betimes but not another, if delayed. All Courts do that. Perhaps, the Full Bench might well have granted an adjournment for a short time specially as the sons of Ramalingam were nervous about the result of their appeals. But I do not consider that I shall be justified in reaching the conclusion that by the refusal, the principles of natural justice were violated, when I notice that three other Counsel were already briefed in the appeals and one of them had argued them before the Divisional Bench. I am thus of opinion that it cannot be held that the principles of natural justice were violated so as to bring the Judgment within the ban of clause (d) of Section 13 of the Code.

117. The next question is the composition of the Full Bench, apart from the conduct of the Judges. Here, the objection is that Balakrishniah, J., was incompetent to sit on the Bench after his views already expressed in his dissenting judgment. Now, it is clear that the two learned Judges, who had heard the appeals, had differed and had delivered separate judgments. It was contended that Balakrishniah, J., was incompetent to make the reference because no sooner Kandaswami Pillai, J., delivered his, than the judgment of the District Judge, with whom he agreed, stood confirmed by virtue of Section 98 of the Civil Procedure Code in force in Mysore State. In other words Balakrishniah, J., had missed his chance to make a reference, because he had already delivered his judgment and the other Judge having delivered his, the result under the Code followed. The action of Balakrishniah, J., taken under Section 15(3) of the Mysore High Court Regulation, 1884, was said to be too late to arrest the consequences of Section 98. In my opinion, this argument has no substance whatever, and I think that it would not have been arguable if there was no authority to support it. I do not think it necessary to enter into the niceties of the question when is a judgment final, that is to say, whether on pronouncement by the Judge or on his signing it. The very interesting argument of the counsel for the sons of Ramalingam maybe left to be decided in a better case. If the argument is accepted, some curious results will follow. Either Balakrishniah, J., had to make a reference without waiting for his brother Judge to deliver his judgment or to lose his right, because no sooner Kandaswami Pillai, J., read his judgment to the end than the judgment of the District Judge would be confirmed. In fact, whoever delivered the judgment first would lose his turn to make a reference. It is obvious that Balakrishniah, J., would wait in common courtesy for his brother Judge to deliver his judgment before making the reference. The judgment of Balakrishniah, J., ends with the order of reference and then follows his signature. What happened really does not appear from the record, but is contained in affidavits, which, to my mind, should not have been read in this connection. It is obvious that the reference was made before the judgment was perfected by the signature. No doubt, there is a ruling of the Allahabad High Court in ILR 9 Allahabad 625 (FB), but the practice of the Mysore High Court was authoritatively established by a Full Bench decision of that court in 4 DLR (Mys) 118 (FB). In view of the cursus curiae thus laid down, the Allahabad view, even if right, cannot be applied, In my opinion, the appeal stood properly referred to the Full Bench.

118. The next contention is that Balakrishniah, J., sat on the Full Bench after expressing his views on the merits of the appeals in a long and considered judgment. It was contended that this deprived the sons of Ramalingam of a proper hearing before a Judge who had not made up his mind already. There is considerable room for doubt on this point. There have been several cases before, in which Judges who have made a reference to a larger Bench have sat on the Bench, even though they had earlier expressed an opinion. Some of them have also changed their views later. Here again, the practice of the Court must receive some attention. The learned Attorney- General drew our attention to three cases of the Mysore High Court in which precedents are to be found. He also drew our attention to cases from the other High Courts in India and of some Courts abroad. In some of the foreign cases, judges have sat in a Bench hearing the case, after decision by them, in appeal or re-hearing. Of course, one need not go so far as that in our country, though in cases under Clause 26 of the Letters Patent of the Chartered High Courts. Judges who have presided over Sessions Trials have sat at the re- hearing after the certificate of the Advocate-General. Examples of both kinds of cases are to be found in the Law Reports: See ILR 44 Calcutta 477 (FB). AIR 1924 Calcutta 257. The learned Attorney General drew our attention to the Encyclopaedia of Laws and Precedents(1906), Vol. 23, p. 588 and American Jurisprudence (1958), Vol. 30A. p. 76. para. 187 and William Cramp and, Sons v. International Curtis Marine Turbine Co., (1912) 57 Law Ed 1003 and 1951 – l All England Reporter 804. In some of the earlier cases, the practice was quite common due to the smallness of the number of Judges : See, for example. ILR 6 Allahabad 468, Queen Empress v. Saminatha Chetti, ILR 7 Madras 274 (FB), Seshadri Ayyangar v. Nataraja Ayyar, ILR 21, Mad 179. There is no law to prohibit this, and in a small Court with limited number of Judges, this may be unavoidable. It is not to be expected that ad hoc Judges would be appointed every time such a situation arises. But what we have to guide ourselves by is the practice obtaining in the Court, with which we are dealing. If the practice there was common and inveterate no litigant can be said to apprehend reasonably that he would not get justice. There are no less than four cases of the Mysore High Court in which a similar procedure was followed, in addition to those already cited. In my opinion, in view of the strength of the Court and the practice in vogue, the Judgment of the Full Bench cannot, on this circumstance, be described as against the principles of natural justice.

119. The next contention in support of the plea that the decision of the Mysore High Court was coram non judice and against the principles of natural justice, charges the learned Chief Justice and Balakrishniah, J., with unjudicial conduct and prejudice and the former, with interest in the executors. It is convenient to take the allegations against the Chief Justice and Balakrishniah, J., separately.

120. As regards the Chief Justice, it will be recalled, evidence was allowed to be led only on the question of dissuading Mr. Raju from appearing in the case. But no direct evidence was led. What transpired between the Chief Justice and Mr. Raju (if something did transpire) could only be deposed to by one of them. None else was present at that meeting, and neither was examined in the case. Mr. Raju had by then been imprisoned after trial and conviction for an attempt on the life of the Chief Justice, and was not available for examination. It seems that no serious effort was made to get his testimony, and it is now said that ‘legal difficulties’ prevented his examination. But whatever the difficulties, the record shows that the sons of Ramalingam voluntarily gave up Raju as a witness, and now it is too late for them to complain of ‘legal difficulties’. Nor can they for that reason make the worse appear the better reason. The other side also gave up Chief Justice Medappa, Indirect evidence was, of course, sought to be led; but it does not help either party, and the party which must fail, must obviously be the party which made the allegation. Here, the sons of Ramalingam suffer from another disability. Viswanathan himself wrote letters to say that the allegations were false, and were made under advice. referring most probably to Mr. Raju. No doubt, these admissions were sought to be withdrawn but only when confronted with the letters, though Viswanathan, at first, denied their existence. The explanation was that these letters were written under the pressure of Wajid. In view of the basic fact that the allegation itself was proved by evidence, it is pointless to decide whether the letters were written under undue pressure. I can only say that if Wajid’s evidence appeared to be untrue in part, Viswanathan impressed me even less. The fight over the dissuading of Mr. Raju thus, at best, ended in a stalemate, if not wholly against the sons of Ramalingam.

121. Having failed to establish the only issue which was specifically raised, there was an attempt to revive the allegations on which evidence was not allowed. Reference was made in this connection to certain passages in the cross-examination of Wajid and the evidence of Viswanathan. This was on the use of a car belonging to the estate by Mr. Medappa some years before when he was the District Judge. The foundation of this allegation was in affidavits sworn by Viswanathan, who seems to have begun each day of hearing with an affidavit. These affidavits were denied by the other side through Wajid’s affidavits. This vehement war of affidavits only resulted in the interested testimony of Viswanathan, on the one side, and Wajid, on the other. The matter has thus to be examined carefully. The evidence was not related to any specific issue, there being none raised in the case. Most of the evidence was in affidavits, which do not appear to have been ordered and could not, for that reason, be read as evidence. Such evidence as there was highly interested and uncorroborated from any independent source. The affair was extremely old, even if true to establish an interest, such as would disqualify a Judge from hearing the case. In these circumstances, it is evident that the case alleged, cannot be held to have been established.

122. Next was the allegation of friendship between Medappa, C. J., and A Wajid and Mannaji Rao. Mannaji Rao faded out as an executor, and took hardly any interest in his duties as such, and cannot, therefore, be said to have been a potent factor to interest Medappa, C. J. In support of his allegation that Medappa, C. J., and A. Wajid were great friends, Viswanathan swore a few affidavits. A fairly long affidavit (No. 440 of 1950) in the High Court was reproduced in its entirety by Ramaswami, J., in his Judgment. Some other affidavits were sworn in this Court when certain proceedings for a writ of prohibition were started, and they were also read in the High Court and were read to us. Making a selection from these affidavits, the allegations may be stated briefly as follows: Medappa, C. J., was the Chief Steward of the Bangalore Race Club and A. Wajid, his Secretary, that A. Wajid was visiting Medappa, C. J., at the latter’s house when the probate case was going on and that they were great friends. It was also alleged that Chief Justice Medappa’s attitude during the probate case was extremely hostile to the family, which was later reflected in the judgment of that case, and that Medappa, C. J., was extremely wroth, when Viswanathan asked him not to sit on the Full Bench and the Chief Justice forced Viswanathan to disclose the name of the counsel who had advised the move and said that he would see what to do with him.. All these allegations were denied by A. Wajid both in affidavits and in his oral testimony, Balakrishniah, J., was questioned about what happened, in the Court and gave evasive replies.

123. The rule of law about judicial conduct is as strict, as it is old. No Judge can be considered to be competent to hear a case in which he is directly or indirectly interested. A proved interest in a Judge not only disqualifies him but renders his judgment a nullity. There is yet another rule of judicial conduct which bears upon the hearing of case. In that, the Judge is expected to be serene and even-handed, even though his patience may be sorely tried and the time of the Court appear to be wasted. This is based on the maxim which is often repeated that justice should not only be done but should be seen to be done. No litigant should leave the Court feeling reasonably that his case was not heard or considered on its merit. If he does, then justice, even though done in the case, fails in the doing of it.

124. Can we say that Medappa, C. J., was so interested as to be disqualified, or that he acted in a manner that his conduct in Court was a denial of justice? Apart from the fact that A. Wajid denied familiarity, though not acquaintance with Medappa, C. J., there are no instances of undue leaning in favour of the executors. What happened in the case was engineered by Mr. Raju, as the letters of Viswanathan himself suggested. The family which did not know how to get on the right side of a father, however obdurate, acted in much the same way with the Court. Their conduct on and from the announcement of the Full Bench was calculated to exasperate and annoy any Judge, who held his own reputation dear. Of course, the more Medappa, C. J. showed irritation, the more Raju and his clients got publicity value, which they hoped to exploit with the Maharajah. In my opinion, the conduct of the sons of Viswanathan was studied and designed to further their move for a different Bench. If we leave out of consideration the dissuading of Raju, as to which there is no evidence, and the use of the estate car, about which also there is no evidence, there remains a vague allegation of deep friendship denied on the other side and not proved otherwise by independent evidence. I say independent evidence, because the evidence of Puttaraja Urs, J., about a conversation between him and Medappa, C. J., about this case cannot be said to be disinterested, because the witness had his own grievance against the Chief Justice, which he was ventilating to all and sundry. He even went to the length of reporting to the Chief Justice of India. I am not required to pronounce upon the truth or otherwise of Puttaraja Urs, J’s personal aspersions on Medappa, C. J., but it is obvious that he cannot be regarded as a witness who can be trusted to have taken no sides. That leaves only the fact that Medappa, C. J., had heard and decided the probate case against the family. But I do not think that this circumstance was enough to disqualify him from sitting on a Bench to hear a case, in which more evidence had been led. This happens frequently in all Courts.

125. The same conclusion is also reached, when one examines the allegations about the conduct of Balakrishniah, J. There too, the allegations are in affidavits. These allegations are that Balakrishniah, J., made hostile remarks against the case of the sons of Ramalingam, while hearing the appeal with Kandaswami Pillai, J. If every remark of a Judge made from the Bench is to be construed as indicating prejudice, I am afraid most Judges will fail to pass the exacting test. In the course of arguments, Judges express opinions. tentatively formed, sometimes even strongly; but that does not always mean that the case has been prejudged. An argument in Court can never be effective if the Judges do not sometimes point out what appears to be the underlying fallacy in the apparent plausibility thereof, and any lawyer or litigant, who forms an apprehension on that score, cannot be said to be reasonably doing so. It has frequently been noticed that the objection of a Judge breaks down on a closer examination, and often enough, some judges acknowledge publicly that they were mistaken. Of course, if the Judge unreasonably obstructs the flow of an argument or does not allow it to be raised, it maybe said that there has been no fair hearing.

126. The remarks of Balakrishniah, J., which have been quoted in the case, do not bear that suggestion. He seemed to have formed opinions as the arguments proceeded, and if he had kept them to himself, there would have been no complaint. It is because they were expressed that there is one. No doubt, he expressed his opinion in the judgment and then sat on the Full Bench. But I have explained already that due to the retirement of Kandaswami Pillai, J., the incompetence of one other learned Judge who had acted as a lawyer, the choice was between him and Puttaraja Urs, J. Perhaps, that would have been equally objected to on the other side, as subsequent events disclosed. In any case, there was to be a rehearing, and if the Chief Justice included Balakrishniah, J., following the inveterate practice of his (Court, it is too much to say that the judgment was coram non judice, or the principles of natural justice were violated. The further contention that Balakrishniah, J., had tendered himself a witness because the terms of compromise were discussed before him, loses all significance in the face of the order that the compromise, if any, could not be recorded in the interest of the estate.

127. On a review of these allegations, I am not satisfied that the sons of Ramalingam have made out an acceptable case. It cannot, therefore, be said that clauses (a) and (d) of Section 13 are applicable, and that the judgment of the Mysore Full Bench is not conclusive. I should not be taken to hold the view that the hearing was without incident, or that the conduct of these two Judges was always correct. But all the facts are overlaid with exaggeration and perjury, and no definite conclusion can be reached. I am, however, quite clear that the evidence falls far short of that degree of proof which would entitle another Court to say of a foreign judgment that it was coram non judice or that it had been rendered violating the principles of natural justice.

128. I shall next consider the competence of the Mysore Courts and the extent of the conclusiveness of the judgment of the Full Bench under Section 13 of the Civil Procedure Code. To decide these points, it is necessary to examine critically the pleas in the cases in the Mysore Courts and the decision on those pleas. In so far as the decision is concerned, I shall confine myself to the judgment of the Full Bench, for it is only the final judgment, which can be considered conclusive.

129. The suits were filed on identical pleas. Two suits were necessary, because the property was situated in the jurisdiction of two different Courts. In any event, both the suits were consolidated after the return of the Civil and Military Station to the Mysore State. The suits were filed for declaration that the properties were joint family properties, that Ramalingam had no right to dispose of the same by a will, and for possession and accounts. As against this, the executors had contended that the properties were self-acquired. The basis of the claim of the sons of Ramalingam was contained in the following paragraph :

“The said V. Ramalinga Mudaliar came into possession of movable and immovable properties including some houses in Arunachala Mudaliar Road, Civil and Military Station, Bangalore, which had belonged to his father, Vaidyalinga Mudaliar. The said properties were sold by Ramalinga Mudaliar and the sale proceeds were invested in several businesses. In or about the year 1928 the first plaintiff (Vishwanathan) joined his father and actively assisted him in the several businesses of the family. Apart from the fact that there was a nucleus of ancestral property with which the businesses were carried on the plaintiffs submit that the adult members of the family, viz., the first plaintiff and late Mr. V. Ramalinga Mudaliar were actively associated with the family businesses and that all the properties were treated by Ramalinga Mudaliar as family properties.”
130. In dealing with the case, the Full Bench gave the following finding:

(1) That Vaidyalinga Mudaliar who was away in Shimoga and Mysore working as District Sheristadar had nothing to do with the contract business at the Kolar Gold Field Mines;

(2) That Shanmuga borrowed Rs. 2,000/- on a pronote in which his father joined, from a Bank and did business with it successfully;

(3) That this money was returned by Shanmuga to his father;

(4) That the other brothers acknowledged in writing that they had no title or interest in the business of Shanmuga which were his self- acquisitions;

(5) That Ramalingam joined Shanmuga as a partner and later bought out his interest;

(6) That Ramalingam did not come into possession of any movable property of his father;

(7) That even if Ramalingam sold the houses left to him by the father they were his exclusive properties bequeathed to him by Vaidyalingam whose self-acquisitions they were;

(8) That the claim of the sons of Ramalingam that the properties were acquired with the aid of the joint family nucleus and that they were joint family properties was disproved.

In the result, it was held that the business and possessions were not of those of a joint family but the separate properties of Ramalingam.
131. The question whether these findings or any of them are conclusive in the subsequent litigation in Madras has been raised in connection with the 18366 shares of the Indian Sugars and Refineries Ltd., by the sons of Ramalingam, who seek to avoid the Mysore judgment and in respect of the immovable property in Madras by the executors who claim the benefit of the same under Section 13 of the Civil Procedure Code. Though the question is mainly one of interpretation of Section 13, the arguments were reinforced by reference to Books on Private International Law and cases decided by English Courts.

132. The law as contained in Section 13 has been the result of an evolution. In the Civil Procedure Code, 1877, the subject of foreign judgments was a part of the law of res judicata. It was enacted in Section 14 that,

“No foreign judgment shall operate as a bar to a suit in British India-

(a) if it has not been given on the merits of the case;

(b) if it appears on the face of the proceedings to be founded on an incorrect view of international law or of any law in force in British India.

(c) if it has been obtained by fraud;

(e) if it sustains a claim founded on a breach of any law in force in British India.”

That the section was to take its colour from the preceding section (13) which dealt with res judicata is made obvious by the VIth Explanation to the latter section, which read :

“Where a foreign judgment is relied on, the production of the judgment duly authenticated is presumptive evidence that the court which made it had it had competent jurisdiction, unless the contrary appears on the record; but such “presumption may be removed by proving the want of jurisdiction.”
There was one other section (Section 12 ), which laid down the circumstances for the application of the doctrine of Lis Alibi Pendens, with which we are not concerned.

133. In the Code of 1882, an Explanation was added to Section 14 by Act VII of 1888 (Section 5) that the Courts in British India must examine, in a suit based on a foreign judgment of any foreign Court in Asia and Africa (excepting a Court of Record established by Letters Patent of Her Majesty or any predecessor of Her Majesty or a Supreme Consular Court established by an Order of Her Majesty in Council) the merits of that judgment when it was pleaded as a bar in a suit before the British Indian Courts. This was obviously done to prevent the judgments of the Courts of Indian States to be placed on an equal footing with those in European Countries. The Governor-General in Council was, however, given the power to declare which Courts in the Indian States could have their decrees executed in British India as if they were decrees passed by a British Indian Court. Some Indian States were so declared, and it is interesting to know that Mysore State was one of them.

134. In the Code of 1908, with which we are concerned, the ban against the judgments of Indian States was removed, and Section 14 was re-enacted as Section 13, and Explanation VI was re-enacted with slight modifications of language as Section 14 which worded in a negative way and Section 13, which states affirmatively that a foreign judgment shall be conclusive is significant and lies in the fact that during this time there was a corresponding advance in the theories of Private International Law in England. But this much is evident that in dealing with the question of foreign judgments in India, we have to be guided by the law as codified in our Country. That law attaches a presumption (though rebuttable) of the competency of the Court, which pronounced the foreign judgment. It makes it (a) conclusive (b) as to any matter thereby directly adjudicated between the same parties or between parties under whom they or any of them claim litigating under the same title. The conditions precedent are contained in six clauses of which the first clause is that it must be pronounced by a Court of competent jurisdiction.

135. It may be mentioned at this stage that Section 41 of the Indian Evidence Act provides that a final judgment’ order or decree of a competent Court in the exercise of probate, matrimonial, admiralty or insolvency jurisdictions shall be relevant and also conclusive proof as to certain legal character. The contention on behalf of the executors has been that Section 41 of the Indian Evidence Act provides the rules for judgments in rem, while Section 13 of the Civil Procedure Code provides for judgments in personam and the only judgments in rem are those mentioned in Section 41. To this argument, I shall come later.

136. The first point to decide is whether the Mysore Courts were competent to decide the controversy which they decided. What it meant by competency can be looked at from two points of view. There is the internal competency of a Court depending upon the procedural rules of the law applicable to that Court in the State to which it belongs. There is also its competency in the eye of international law. The competency in the International sense means jurisdiction over the subject-matter of the controversy and jurisdiction over the parties as recognised by rules of international law. What is meant by competency in this context was stated by Blackburn, J., speaking for the Judges in answer to the question referred by the House of Lords in (1870) 4 H L 414. Relying upon Story’s Conflict of Laws, the learned Judge observed:

“We may observe that the words as to an action being in rem or in personam, and the common statement that the one is binding on third persona and the other not, are apt to be used by English lawyers without attaching any very definite meaning to those phrases. We apprehend the true principle to be that indicated in the last few words quoted from Story. We think the inquiry is, first, whether the subject-matter was so situated as to be within the lawful control of the State under the authority of which the Court sits and secondly, whether the sovereign authority of that State has conferred on the Court jurisdiction to decide as to the disposition of the thing, and the Court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive against all the world.”
Story’s exact words are to be found in paragraph 586 of his Book, and this is what the learned author said:

“In order however to found a proper ground of recognition of any foreign judgment in another country, it is indispensable to establish that the Court pronouncing judgment should have a lawful jurisdiction over the cause, over the thing, and over the parties. If the jurisdiction fails as to either it is… treated as a mere nullity, having no obligation, and entitled to no respect beyond the domestic tribunals. And this equally true, whether the proceedings lie in rem or in personam or in rem and also in personam.”
The opinion expressed by Story here is, in its turn, based on that of Boullenois in his Traite et de la Personnalite et de la Realite des Lois Coutumes ou Status, (1766) Vol I, pp. 618-620.

137. The law stated by Blackburn, J., has been universally accepted by all the Courts in the English speaking countries and it was quoted with approval recently by the Privy Council in Ingenohl v. Wing On and Co., AIR 1928 PC 83. No distinction in approach to the question of competence is made between cases in rem and in personam. In 1899-1 Ch 781, Lindley, M. R., stated the law relating to competency to be this:

“Where no substantial justice, according to English notions, is offended, all that the English Courts look to is the finality of the judgment and the jurisdiction of the Court, in this sense and to this extent – namely, its competence to entertain the sort of case which it did deal with, and its competence to require the defendant to appear before it. If the court had jurisdiction on this sense and to this extent, the Courts of this country never inquire whether the jurisdiction has been properly or improperly exercised, provided always that no substantial injustice, according to English notions, has been, committed.

There is no doubt that the Courts of this country will not enforce the decisions of foreign Courts which have no jurisdiction in the sense above explained – i.e., over the subject-matter or over the persons brought before them : Schibs by v. Westenholz, (1870) 6 Q B 155, Rousillon v. Rousillon, (1880) 14 Ch D. 351; Price v. Dewhurst, (1838) 4 My and Cr 76; Buchanan v. Rucker, (1808) 9 East 192; Gurdyal Singh v. Rajah of Faridkote, 1894 A C 670. But the jurisdiction which alone is important in these matters is the competence of the Court in an international sense – i.e., its territorial competence over the subject matter and over the defendant. Its competence or Jurisdiction in any other sense is not regarded as material by the Courts of this country. This is pointed out by Mr. Westlake (International Law, 3rd ed. Section 328) and by Foote (Private International Jurisprudence, 2nd ed. p. 547), and is illustrated by Vanquelin v. Bouard, (1863) 15 C B (NS) 341…..

It may be safely said that, in the opinion of writers on international law, and for international purposes, the jurisdiction or the competency of a Court does not depend upon the exact observance of its own rules of procedure…..

A judgment of a foreign Court having jurisdiction over the parties and subject-matter -i.e., having jurisdiction to summon the defendant before it and to dicide such matter as it has decided -cannot be impeached in this country on its merits : (1870) 4 H L 414 (in rem): (1870) 6 Q B 139 (in personam) ; Messina v. Petrococchino, (1872) 4 PC 144 (in personam). It is quite inconsistent with those cases and also with (1863) 15 C B (N S) 341 to hold that such a judgment can be impeached here fore a mere error in procedure. And in (1870) 4 HL 414 Lord Colonsay said that no inquiry on such a matter should be made.”
138. The dictum of Lindley, M. R., goes a bit too far in reducing internal want of jurisdiction to nothing. It may be that the judgment of the foreign Court may be a nullity, and it would be too much to say that full faith should be given to such a judgment. Indeed, in England, this part of dictum was not applied; Papadopoulos v. Papadopoulos, 1930 P 55. That apart, in my opinion, the above passage admirably sums up the law connected with the competency of the foreign Court. Mere irregularities of procedure in the exercise of jurisdiction by the foreign Court are not enough : See Ashbury v. Ellis, 1893 A C 339 at p. 344; but a total want of internal jurisdiction may have to be noticed if pleaded in answer to the foreign judgment. There is no real difference in so far as competency goes between actions in rem and actions in personam. In some actions in personam, the necessity of jurisdiction over any particular thing may not arise. This is always necessary in judgments in rem relating to immovable property. Besides this a judgment in personam binds only the parties, while a judgment in rem seeks to bind others also. Thus, the objection to the jurisdiction of the Court in a foreign country on other than international considerations, must be raised in that country. This is settled in (1863) 15 C B ( N S) 341. Objections to it internationally can be raised in the Court in which the judgment is produced. But even if the objection to the jurisdiction be raised in the Court where the judgment is produced, that Court will consider in actions in rem whether the foreign Court had jurisdiction over the subject- matter and the defendant and also in actions in personam, whether the jurisdiction was possessed over the subject-matter and the parties. In the approach there is no difference. In the latter class of cases, the English Courts consider the defendant bound where: –

(1) he is the subject of the -foreign country in which the judgment has been obtained;

(2) he was resident in the foreign country when the action began;

(3) he, in the character of plaintiff, has selected the forum in which he is afterwards sued;

(4) he has voluntarily appeared;

(5) he has contracted to submit himself to the forum in which the judgment was obtained.

I leave out the sixth ground added by Becquet v. Mac Carthy, (1831) 2 B and Ad. 951, as it has not been universally endorsed and has been said to go to the verge of the law.
139. In addition to these, the English Courts take into consideration the conduct of the party raising the objection against the foreign judgment. If he, as plaintiff, invoked the jurisdiction of the foreign Court, he cannot be allowed to complain against the judgment on the ground of competence. This was laid down in very clear terms by Blackburn, J., in (1870) 6 Q B 155 as follows:

“Again we think it clear, upon principle, that if a person selected, as plaintiff, the tribunal of a foreign country as the one in which he would sue, he could not afterwards say that the judgment of that tribunal was not binding upon him.”
The contrary case is General Steam Navigation Co. v. Guillou, (1843) 11 M and W 877 at p. 894, where the conduct of the defendant was not held binding. Recently, in Harries v. Tayalor, 1915-2 K B 580, appearances conditionally by a defendant in a foreign Court to object to jurisdiction was considered not to be the sort of conduct to bind him, but in Travers v. Holley, 1953 P 246, Donning, L. J. (as he then was), has made certain obiter remarks against the last case. Since I am not concerned with the conduct of a defendant before a foreign Court but that of a plaintiff, I need not refer to these cases in detail.

140. Applying these tests to find out if the Mysore Courts were competent to deal with the case both internally and internationally, it is clear that they were. The subject of the controversy was the status of Ramalingam, a subject and resident of Mysore State. His will made in that jurisdiction was admitted to probate there. His sons and other relatives who figured as parties and those in possession of the property, were in that State. The property which was the subject of dispute, including the Kolar Gold Fields business situated in Mysore State, but excluding the shares in the Indian Sugars and Refineries Ltd., (which are disputed as to their situs) was also in Mysore. The sons of Ramalingam themselves commenced the two suits and invoked the jurisdiction of the Mysore Courts. They claimed that the Kolar Gold Fields business belonged to a joint family and not to Ramalingam alone. They, in fact, succeeded at first, but lost on appeal. In view of these considerations and applying the dicta of Blackburn, J., and Lindley, M. R., the conclusion is inescapable that the Mysore Courts were competent internally as well as internationally to decide about the status of Ramalingam and the rights to or in the Kolar Gold Fields business between these very parties. It may, be mentioned here that the competence is to be judged in relation to the subject-matter of the suit in the foreign Court and not in relation to the subject- matter of the suit in another country where the judgment is produced. Ex facie, the Mysore Court exercised no jurisdiction in respect of the properties in Madras. They were never the subject- matter of the Mysore suits and that subject-matter is wholly irrelevant when considering the competency of the Mysore Court. What has to be considered is the effect of the Mysore judgment upon the litigation in Madras in view of Section 13 of the Code. If, then, the Mysore Courts were Courts of competent jurisdiction, the question, is how far are the judgments conclusive. The properties, with which we are concerned, are the 16,000 odd shares of the Indian Sugars and Refineries Ltd., and the immovable properties in Madras. The executors claim that in respect of the shares there is a decision between the parties and in respect of the immovable property, no question of status of Ramalingam, or the ownership of the Kolar Gold Fields business can be reconsidered in view of the Mysore judgment, while the other side seeks to avoid the judgment altogether.

141. Numerous cases from English Law Reports and some standard text-books on the subject of Private International Law or, as it is sometimes called, the conflict of Law, were cited in support by the rival parties. It may, however, be said at the start that the treatment of the subject in India is somewhat different from that in England. In our country, the binding force of a judgment arises partly from adjective law and partly from the law of evidence. The subject of res judicata, which is based upon a rule of public policy as expressed in Coke on Littleton as interest rei publicae ut sit finis litium is mainly to be found in the Civil Procedure Code, while the evidentiary value of Judgments is dealt with in the Indian Evidence Act. In England, the subject of res judicata is mainly dealt with as part of the law of evidence, and a former judgment is said to create an estoppel by record. The subject of the conclusiveness of foreign judgments is dealt with in India in the law of procedure, while in England it is dealt with as a part of Private International Law. This law is not to be taken as a kind of law binding upon the States of the world arising out of a communis consensus of the States. There is no such consensus, though reciprocal laws exist. Each country decides for itself how far the foreign judgments will be received. A foreign judgment receives different treatment in different parts of the world. Apart from reciprocity between different Countries which have agreed to be mutually bound, there are numerous approaches to the problem. In some Countries direct enforcement of such judgments, if registered in the Country of origin, is permitted in the same way as in Sections 44 and 44A of our Civil Procedure Code. In others, the judgment (unless reciprocal agreements exist) must be sued upon. There too, the question arises whether the original cause of action merges in the judgment – transitu in rem judicatum, or survives. In some Countries like France, the judgement of a foreign Court is subjected to scrutiny, while in some of the Nordic Countries, the judgment has no value. In 1927 P 211, jurisdiction was refused, because the judgment of the English Court would not have bound the parties in the foreign Country. Numerous rules have been evolved in England and the English speaking Countries, mainly by Judges, which show the extent to and the conditions under which the judgment is received. In America, the Restatement has done much to simplify the subject, but even so, it has proved inadequate. The subject has been made so complicated that one learned author has been provoked to say :

“In one respect the law of Conflict of Laws is nothing but an unmitigated nuisance, serving no useful purpose whatever.” (Leflar -The Law of Conflict of Laws (1959) Para. 8 of Introduction).
142. The salient points of English law on the subject may be stated to be that all judgments are divided into two broad categories – judgments in rem and judgments in personam. The best definitions of these terms are to be found in Halsbury’s Laws of England, Vol. 22, p. 742 para. 1605, which reads:

“A judgment in rem may be defined as the judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing, as distinct from the particular interest in it of a party to the litigation. A judgment in personam determines the rights of the parties inter se to or in the subject matter in dispute, whether it be corporeal property of any kind whatever, or a liquidated or unliquidated demand, but does not affect the status of either persons or things, or make any disposition of property, or declare or determine any interest in it except as between the parties litigants. Judgments in personam include all judgments which are not judgments in rem but, as many judgments in the latter class deal with the status of persons and not of things, the description “judgments in personam”.
The definition of Halsbury is merely a re-statement of a definition given by Bowers, and it has been accepted and applied by Evershed, M.R., in Lazarus Barlow v. Regens Estates Co. Ltd. 1949-2 K B 465 at p.475. Such judgments, says Phipson on Evidence, 8th Edn., p. 401, are conclusive in the case of judgments in rem against parties or their privies or strangers, and in the case of judgments in personam, against the parties and their privies only. In the matter of foreign judgments, the rule about judgments in rem has been somewhat reduced in its extent in one direction – and extended in another in recent years in England. In the matter of status, it has been extended to give more and more faith to foreign decrees but in the other direction, it has been curtailed. In respect of things and determinations of rights or title to things (excluding immovable property as to which I shall say something later) judgments in rem are now confined to Admiralty actions. There is, however, a remnant in respect of notables, which is represented in the three rules of Westlake (Section 149) which are :

(a) judgments which immediately vest the property in a certain person as against the whole world;

(b) judgments which decree the sale of a thing in satisfaction of a claim against the thing itself; and

(c) judgments which order movables to be sold by way of administration. This distinction is summed up by Holmes, C. J., in Tyler v. Judges of the Court of Registration, (1900) 175 Mass 71, as follows:

“If the technical subject 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 defense, the action is in personam, although it may concern the right to, or possession of, a tangible thing………….If on the other hand the object is to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established, and if any one in the world has a right to be heard on the strength of alleging facts which, if true show an inconsistent interest, the proceeding is in rem……………..All proceedings, like all rights, are really against persons. Whether they are proceedings or rights, in rem depends on the number of persons affected.” (Cheatham – Cases and Materials on Conflict of Laws p. 168).

This classic exposition, which has evoked the admiration of every text-book writer and also the Privy Council in AIR 1928 P C 83, sums up in an admirable manner the distinction between the two kinds of judgments.
143. I shall now follow up and analyse the application of these principles in England and America where the law is almost the same, and then show how the subject has been treated in the India Statutes. In dealing with this subject, I shall not enter upon two subjects. They are the reciprocal arrangements and Arbitral awards, which are two classes apart. The first condition of recognition of a foreign judgment is, of course, the competency of a foreign Court, about which I have said much already. The next condition is the absence of fraud or collusion. Further still, the judgment which is propounded must not offend the public policy of English law, or must not be contrary to the principles of natural justice. Barring these, the judgments of foreign Courts are received in actions based on them and given effect to under certain conditions arising from whether they are in rem or in personam. I have shown already that the judgments in rem are concerned with res. But the word “res” is given a very large meaning. Lord Dunedin in Salvesan v. Administrator of Austrian Property, 1927 A C 641 at p. 662, observed :

“The other point on which I want to say a few words is the question of what is a judgment in rem. All are agreed that a judgment of divorce is a judgment in rem, but the whole argument of the judges in the Court of Sessions turns on the distinction between divorce and nullity. The first remark to be made is that neither marriage nor the status of marriage is, in the strict sense of the word, a res, as that word is used when we speak of a judgment in rem. A res is a tangible thing within the jurisdiction of the Court, such as a ship or other chattel. A metaphysical idea, which is what the status of marriage is, is not strictly a res, but it, to borrow a phrase, savours of a res, and has all along been treated as such. Now the learned Judges make this distinction. They say that in an action of divorce you have to do with a res, to wit, the status of marriage, but that in an action of nullity there is no status of marriage to be dealt with, and therefore no res. Now it seems to me that celibacy is just as much a status as marriage.”
See also the observations of Lord Haldane at pp. 652-653.

144. Commencing upon that case, Cheshire (op. cit. sup) says at p. 657 :

“Thus the word res as used in this context includes those human relationships, such as marriage, which do not originate merely in contract, but which constitute what may be called institutions recognised by the State.”
In the same way, adoptions in foreign Countries which were not recognised in England at one time are now being recognised. See Dicey’s Conflict of Laws, 7th Edn., p. 460, particularly p. 461, where Dicey’s original view is shown to be obsolete. The subject of adoption is being treated as in pari materia with legitimation. Cheshire’s views expressed in his book (pp. 442,443) show that on the analogy of a case like In re, Goodaman’s Trusts (1881) 17 Ch D 266, they are being equated. Cheshire then observes in forceful language.

“The genius and expansion of the common law would indeed wither away if the traditional practice were to be abandoned of applying the principles already established for one type of case to another type substantially similar in nature.”
He then concludes that the existence of Y’s status as fixed by the law of the domicile common to him and his adopter must on principle be recognised in England. In England, judgments, n personam which are ancillary to such Judgments in rem were considered binding at one time, see Phillips v. Batho, (1913) 3 K B 25; but the view has since changed somewhat.

145. As regards the extent of conclusiveness of foreign judgments, the subject again gets divided into two parts. Judgments in rem, according to Foote on Private International Law, 5th Edn., p. 625, are received in respect of any matter decided by them. The following passage gives his views :

“Accepting then, as incontrovertible the principle that a foreign judgment in rem is conclusive in all Courts and against all parties, it remains to consider to what its conclusiveness has been held to extend. As to the facts directly adjudicated upon there can be no doubt; but there is often difficulty in applying the principle to facts inferentially decided, as well as to the grounds, expressed or implied, of the foreign decision. The safest expression of the English law on the subject appears to be that the truth of every fact, which the foreign Court has found, either as part of its actual adjudication or as one of the stated grounds of that decision, must be taken to be conclusively established.”
He, however adds that the foreign Court will not be taken as having established any fact which it has not expressly found as laid down in the judgment relied on. Short of this, not only the actual decree but every adjudicative, fact is treated as conclusively decided. Rattigan in his Private International Law at p. 268 observes :

“This conclusiveness extends to every (act, which the foreign Court has found either as part of its actual adjudication or as one of the stated grounds of its decision.” Dicey in his Conflict of Laws, 7th Edn. (Rule 183) states the law in concise form:

“A foreign judgment is conclusive as to any matter thereby adjudicated upon and cannot be impeached for any error either.

(1) of fact

(2) or of law.”
In so far as judgments in personam are concerned, any of the matters decided inter partes are binding on the parties and privies, though not on strangers. This follows from the rule now firmly grounded that a foreign judgment will be examined from the point of view of competence but -not of its errors, subject of course, to there being no fraud, collusion, breach of the principles, of natural justice or of public policy of England or a wrong apprehension of the law of England if that law be involved, From the conclusiveness of foreign decrees, it may be said here that the penal laws of another Country or Judgments involving a penal decree are exclued. It is customary to quote Chief Justice Marshall’s famous dictum in the Antelope (1824-27) 10 Wheat 66, 123 : 6 Law Ed.268. The Courts of no country execute the penal laws of another”. The same is the position of decrees. orders or judgments in matters of taxation and penalties under taxing laws. The American Courts follow in these respects the law in England, and Goodrich in this Conflict of Law,p.603. sums up the American approach in one pithy sentence:

“A valid foreign judgment should be recognised and given effect in another State as a conclusive determination of the rights and obligations of the parties. This is the modern doctrine.”
He adds further :

“On principle, the foreign judgment should be conclusive. The judgment has determined that, under the law of the State where it was rendered, the plaintiff has or has not certain rights, and that the defendant is or is not under certain corresponding obligations. Those rights and obligations as exist in the State where the judgment was rendered so long as the judgment remains in force. When such a judgment is presented for recognition and enforcement in another State, it ought to be treated no less favourably than any suit founded upon foreign operative facts.”
146. Indeed, there is now a liberal approach in respect of immovable property outside the jurisdiction. At p. 217, Goodrich has cited instances of recognition of foreign judgments in respect of matters which, normally, would not come within the jurisdiction of the Court. He says:

“Plaintiff asks that defendant, who is before the Court, be compelled to execute in plaintiff’s favour a conveyance of land which lies outside the State. Is there any defect in jurisdiction because the land is in another State. It is clear that the Court could not make its decree operate directly to convey the land nor could it effectively authorise a master appointed by them to make the decree if the defendant were unable or unwilling to do it. “II But, f, at the situs of the land, a deed executed elsewhere will be recognised as effective, Court may order the defendant, who is before it, to execute a deed conveying the land. This power has been exercised by the Court ever since the time of the historic litigation between William Penn v. Lord Baltimore, (1750) 1 Ves Sen 444 and is recognised in innumerable decisions.”
The same views have been expressed by Stumberg in Conflict of Laws (2nd Edn.), p. 69, Nussbaum in his Principles of International Law (1943), pp: 229, 235 and others.

147. In India, the law as to conclusiveness of judgments is contained in Sections 40-44 of the Indian Evidence Act and Sections 11-14 of the Civil Procedure Code. Section 41 of the former makes certain special kinds of judgments conclusive, while Section 11 makes judgments in India and Section 13 makes foreign judgments conclusive under certain conditions. I shall first analyse the section in the Indian Evidence Act. Section 40 makes the existence of a judgment etc., which by law prevents any Court from taking cognisance of a suit or holding a trial, a relevant fact when the question is whether such Court ought to take cognisance of such suit or hold such trial. This enables a judgment, order or decree whether of a Court in India or a foreign Court, to be propounded for the particular purpose mentioned. Section 42 next mentions that judgments etc., other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the inquiry, but such judgments, etc., are not conclusive proof of what they state. The illustration shows what is meant by matters of a public nature. Section 43 then lays down that judgment etc., other than those mentioned in Sections 40, 41 and 42, are irrelevant unless the existence of such judgments etc., is a fact in issue or is relevant under some other provision of the Evidence Act. Sanction 44 says lastly that any party to a suit or other proceeding may show that any judgment etc., which is relevant under Section 40, 41 or 42 and which has been proved by the adverse party was delivered by a Court not competent to deliver it or was obtained by fraud or collusion. Section 41, which I left out, provides for relevancy of certain kinds of judgment and for their conclusiveness. It reads:

“A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency 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, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof- that any legal character which it confers accrued at the time when such judgment, order or decree came into operation:

that any legal character to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person:

that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declared that it had been or should be his property.”
148. The judgments mentioned in this section are called judgments in rem. As far back as Yarakalamma v. A. Naremma, 2 Mad HCR 276, a distinction was made between judgments which bound only the parties to it and judgments which bound also strangers. The terms of Roman Law which divided law into quod ad res pertinet and quod ad personas pertinet furnished the root, and this classic distinction has been taken as the foundation. In Kanhya Lal v. Radha Churn, 7 Suth WR 338. Peacock C. J., gave a list of judgments in rem, and that list has been followed in framing Section 41. The list of such judgments is much longer in Taylor on evidence, and the present day Private International Law includes all questions of status within it. Sir James Stephen is reported to have said that he included only those judgments to which conclusiveness could be given from the point of view of law of evidence and the conclusiveness attaches as to a given matter of fact relevant to the issue, which may be proved from the judgment. That there may be other provisions, of some other law which may also attach conclusiveness to judgment etc., of some other kinds goes without saying. Section 41 does not prohibit the making of other laws. The provisions of Section 11 of the Civil Procedure Code, for example, go much farther than Section 40 or Section 41 of the Indian Evidence Act. Section 40 touches only the fringe of the law of res judicata ; but provision for that has been made more exhaustively in Section 11 of the Civil Procedure Code. The difference between provisions in the law of Evidence and the law of procedure is that one deals with the question of proof and the other, with a bar of suit. A fact which can be proved from a judgment made conclusive for that purpose need not be proved afresh. The proof of the judgment is enough. But a second suit can only be barred on the principle of res judicata if the law says so; and this bar is regarding the adjudication of a controversy decided before. It is not possible to add to the list of subjects mentioned in Section 41 of the Indian Evidence Act, except by legislation. Conclusiveness there attaches only to the subjects mentioned therein, and a fact established by a judgment of a competent Court on any of the subjects is taken to be proved, and established in all subsequent proceedings and does not require to be proved again. The Judicial Committee in Appa Trimbak v. Waman Govind, AIR 1941 PC 85 p. C. 85 did not extend the principle of Section 41 to a case of adoption and a former judgment on the question of adoption was considered under Section 11 of the Code and not under Section 41 of the Indian Evidence Act. The former Judgment was not accepted under Section 11 of the Code as it did not come within its terms, and the fact was allowed to be proved de novo. The reason given for the non-applicability of Section 41 was said to be that the decisions on adoption were excluded by Sir Barne Peacock in 7 Suth WR 838 and also in Section 41.

149. From the above, it follows that conclusiveness, from the point of view of the law of evidence, will attach to a judgment, order or decree, only if it falls within the categories mentioned in Section 41. Once a judgment etc., falls within it, the law dispenses with the proof of the fact and the conclusion of the former judgment etc., about the legal character which it confers or declares, together with the declarations of property arising from that legal character, is final. In my opinion, the conclusiveness under Section 41 of the Indian Evidence Act cannot fee claimed in this case for the Mysore judgment in view of the enumeration of certain jurisdictions in the section, because the status of being joint or separate in relation to a Hindu coparcenery property is not one of the legal characters mentioned in it.

150. The question thus to consider is whether Section 13 of the Civil Procedure Code is confirmed to those judgments, which do not fall within Section 41, or in other words, to judgments in personam as contended by the learned Attorney General. There is nothing in the language of Section 13 to suggest this, as the section provides. a general rule about foreign judgments and makes them conclusive between the same parties or between parties under whom or any of them claim litigating under the same title. From the mention of parties and their privies, it does appear as if the section is confined to, judgments inter partes, to borrow the language of Halsbury. But a comparison of the terms of the section with those of Sections 40-44 of the Indian Evidence Act discloses a different meaning. Section 41 speaks of a competent Court, and Section 44 allows the question to be raised whether the judgment was obtained by fraud or collusion. Bus Sections 40-44 of the Indian Evidence Act do not contain certain provisions which are contained, in Section 13 as conditions precedent to the conclusiveness of foreign judgments. It is inconceivable that a foreign, judgment in rem of the class mentioned in Section 41, of the Indian Evidence Act was intended to operate as conclusive, even though it was opposed to the principles of natural justice or though it was not given on the merits of the case or if it was founded on an incorrect view of international law or the law of India, or was in breach of any law in force in India. The existence of such prior conditions in Section 13 of the Code and their absence in the Evidence Act compel one to hold that both judgments in rem and judgments in personam are contemplated by Section 13 of the Code. The only difference is that while the Code makes foreign judgments conclusive inter partes, Section 41 makes certain determinations described there as conclusive proof even against strangers. But such determinations, if found in foreign judgments, must also comply with the conditions stated in Section 13 to merit conclusiveness, and a foreign judgment will fail to bar a suit if those conditions are not also fulfilled. It is from this standpoint that I shall consider these appeals, because, in my opinion, no other approach is admissible.

151. The judgment of the Mysore High Court cannot be brought within the terms of Section 41 of the Indian Evidence Act except in so far as it would have, if the probate granted by the Mysore Court had been cancelled. Such an eventuality has not taken place, and I need not consider it, because even there, some difficulties are possible. Here, the judgment of the Mysore High Court was given between the self-same parties, who are litigating under the same title in Madras The executors rely here, as they did in Mysore, on the will of Ramalingam, and the sons of Ramalingam rely on his being a member, of coparcenery. The will is effective or ineffective if it dispose of the separate property of Ramalingam or the property of a coparcenery. These titles were finally decided in respect of the properties in Mysore including the business of Ramalingam and the properties, movable and immovable, in Mysore State. No decision was given in respect of the property in Madras. The matter relating to Hindu coparcenery and the position of Ramalingam were really question of status, and why this is so I shall now explain.

152. Ordinarily, a judgment upon status is considered to be a judgment in rem: see the classic definition of a judgment in rem in Smith’s Leading Cases which has stood unchanged through the many editions. There is, however, no settled definition of ‘status.’ Paton in his jurisprudence (1946) at p. 256 quoting the analysis of Dr. Allen (Legal Duties) says :-

“Status may be described as the fact or condition of membership of a ground of which the powers are determined extrinsically by law, status affecting not merely one particular relationship, but being a condition affecting generally though in varying degree a member’s claims and powers.”

Dr. Allen calls it,

“the condition of belonging to a particular class of persons to whom the law assign certain peculiar legal capacities or incapacities or both.”

Dr.-Allen also adds :

“We must – distinguish three quite separate things: Status, the condition which gives rise to certain capacities or incapacities or both; Capacity, the power to acquire and exercise rights; and the Rights, themselves which are acquired by the exercise of capacity.”

Thus status leads to capacity, and capacity to rights and the rights can be said to be embedded in status and to spring from it. Scrutton, L. J., in In re Luck’s Settlement Trusts 1940-1 Ch. 864 at p. 890, and: “Status is in every case the creature of substantive law.”
153. According to Salmod, the aggregate of mans’s proprietary rights constitutes his estate his assets or property. The sum total of his personal rights, on the other hand, constitutes his status. According to him, substantive Civil Law is thus divided :-

Domestic status, as he explains in an appendix to his Book is :

“the law of family relations, and deals with the nature, acquisition and loss of all those personal rights, duties, liabilities and disabilities which are involved in domestic relationship.”

The conflict of law ordinarily recognises status created by the law of another country. See 1940-1 Ch 864, at p. 891 and 1927 A C 641. In the domain of Domestic Status (barring marriage) there is no element of contract, and Maine says in Ancient Law “the movement of progressive societies has hitherto been a movement from status to contract.” Holland in his Jurisprudence gives sixteen instances of status and includes in them “patria potestas’ which brings the matter very near a Karta of a joint Hindu family.
154. All the above definitions have been judicially noticed and applied by the Australian High Court in the exposition of Section 35 of the Judiciary Act, 1903, which allows an appeal to be brought without leave from any judgment of the Supreme Court of a State which “affects the status of any persons.” In Daniel v. Daniel 4 CLR 563 at p. 566, Griffith, C. J., defined status to be :

“a condition attached by law to a person which confers or affects or limits a legal capacity of exercising some power that under other circumstances he could not or could exercise without restriction.”
In Shanks v. Shanks, 65 CLR 334, this definition was accepted and in Ford v. Ford, 73 CLR 524, all the definitions considered by me were referred to among others and the analysis of Dr. Allen was approved.

155. It must therefore follow that where the source of rights is birth and the domestic relationship leads to rights but not to proprietorship of property the rights can only be said to arise from status. A coparcener in a Hindu coparcenery cannot be admitted by contract. The right is obtained by birth. Even an infant “en ventre sa mere” is in Hindu Law relating to a coparcenery born for many purposes. His rights are thus determined by status. In early laws there is always an emphasis on rights following on birth and writers of Jurisprudence have commented that in such societies there is always difficulty in rising above birth. No doubt the words status and estate had a common origin but in course of time they have acquired different legal meanings : See Pollock and Maitland History of English Law, Vol. II, Ist Edn. pp. 10 and 78. In the law of Hindu Coparcenery, there is no ownership of property apart from the coparcenery and the rights in the property are such as are determined by status. Where domestic relationship determines the status and the status the rights, all disputes and claims can only be based on status and not on proprietorship. Inheritance thus depends on domestic status, and in the same way survivorship, the right to share partition and maintenance are the aspects of domestic status. In this sense, a coparcenery is nothing more than a kind of corporation not arising from contract but status and any matter relating to coparcenery is first a question of status and only when the status is established that a source of material rights comes into being.

156. If the matter had rested with the application of modern theories of Private International Law I would have been tempted to characterise the decision of the Mysore High Court as partly in rem and partly in personam that dealing with the question of joint or separate acquisition of the Kolar Gold Fields business by Ramalingam as involving a decision arising out of status and thus in rem. Such composite actions are not unknown. Story has adverted to them in a passage I have cited earlier and the Court of Appeal in England in In re Trepca Mines Ltd., 1960-1 W L R 1273 found the action to be partly in rem and partly in personam. The decision of the Mysore High Court was one on status and savoured of a decision in rem. Limited as the Judicial approach is by the existence of Section 41 of the Indian Evidence Act and the decision of the Judicial Committee in Appa Trimback’s case, AIR 1941 P C 185, I venture to express this opinion. Private International Law today is developing by reciprocity and more kinds of judgments are being received as conclusive, which twenty years ago were not considered as conclusive. If we do not give faith to foreign judgments on the subject of adoption, family status and questions arising from such domestic relations, other Countries will also follow suit about our judgments. It will be quite amazing if a judgment on adoption in Ceylon (for example) is not considered binding in this Country and vice versa. Adoption is not one of the subjects mentioned in Section 41, and if treated as a decision on status and thus in rem will be conclusive between the same parties and their privies under Section 13. The same must be said of judgments on joint family status or the position of any particular member vis a vis the family. To treat judgments in this manner accords with the modern notions of Conflict of Laws.

157. Even if the subject be viewed from the angle of a judgment in personam, it is obvious that “the matter” decided by the Mysore High Court was whether Ramalingam was a member of a coparcenery and acquired the Kolar Gold Fields business and other properties as such member. That was the res decided, the destination of the properties being ancillary to this main decision.

158. It was argued on the basis of the ruling of the Judicial Committee in 74 Ind App 203 at P. 210 that the word “judgment” in Section 13 of the Code means “an adjudication by the foreign Court upon the matter before it” and not the reasons for the judgment. The words of the section are” directly adjudicated thereby.” What was meant by the Privy Council was that the adjudicative part of the judgment is conclusive and this part of the Mysore High Court judgment is that Ramalingam was not carrying on the Kolar Gold Fields business as a coparcener but independently. If that was not the adjudicative part there was very little else. The language of Section 13 speaks not of the judgment but “any matter thereby directly adjudicated upon”, and the word “any” shows that all the adjudicative parts of the judgment are equally conclusive in the sense in which Foote and Rattigan and others have described them.

159. It was argued that the subject-matter of the suit in Madras was immovable property over which the Mysore Court did not and could not exercise jurisdiction. Reference was made to Dicey’s Conflict of Laws and (1870) 4 H L 414 to show that only the Courts of the Country where immovable property is situated have jurisdiction and the lex situs is applicable. In (1870) 4 H L 414 the question really was whether the sale of a chattel ( a ship) in satisfaction of a claim against the chattel itself was binding on certain parties who had not submitted to the jurisdiction of the French Courts and it was held that a judgment ordering such sale was a judgment in rem if the chattel at that time was in the territory of the foreign State. The ship in question had taken provisions on board for which payment was demanded and the action in the French Tribunals was taken against the Commander Benson who was required to pay ‘par privilege sur ce Navire.’ Of course the owner Clause or Castrique the purchaser did not appear before the French Tribunals but jurisdiction of the French Tribunals was founded on the presence of the ship in French waters at Havre. Such question can hardly arise in respect of immovable property because the Courts of the Country where the immovables are situated can alone have the jurisdiction and no foreign Court can decide the dispute or enforce it effectively.

160. Apart from the fact that even in England the distinction between real and personal property has not been adhered to when the English Courts specify immovable property for purposes of Private International Law it is obvious that the distinction does not come within Section 13 of the Code. If the Mysore High Court purported to decide about immovable property for purposes of Private International Law it is obvious that the distinction does not come within Section 13 of the Code. If the Mysore High Court purported to decide about immovable property in Madras or the law applicable to the family was different, I would have at once agreed with the argument. But the argument confuses the jurisdiction and the law, on the one hand with “the matter decided” on the other. The rule in British South Africa Co. v. Companhia De Mocambique, 1893 A C 602 that no Court can entertain actions in respect of immovable which are situated in a foreign country does not prevent in India under Section 13, the conclusiveness inter partes of a judgment as to any matter adjudicated thereby. That is quite a different affair if the adjudication is about proprietorship based on status. The rule in the above case would have made the decree of the Mysore High Court a nullity if the Mysore High Court had decided an issue about immovable property in Madras. But the Mysore High Court did not decide any such question. It decided a question of the status of Ramalingam and the ownership of the Kolar Gold Fields business with complete jurisdiction between the same parties litigating under the same title. That decision must he viewed in the Madras suit as a conclusive adjudication. The Madras Court could not decide the question of the ownership of the Kolar Gold Fields business de novo and as ancillary to that decision determine the right to the property in Madras. Of course the Madras Court was free to try other questions and consider other defences such as why the judgment of the Mysore High Court was not applicable to the properties before it; but the fundamental question of ownership of the Kolar Gold Fields business, it could not try over again. In my opinion, even the evidence led in the Madras suit to reopen that question was inadmissible though evidence to prove bias, interest etc., on the part of the learned Judges was properly allowed to be led. It was not open to the Madras High Court to try the question of Ramalingam’s status de novo and that part of the decision must be treated as without jurisdiction. I am therefore not entering into that question nor considering the evidence.

161. Before I consider the question of the shares of the Indian Sugar and Refineries Ltd., Madras I wish to refer to a case of the Privy Council on which great reliance has been placed. That case is reported as Mt. Maqbul Fatima v. Amir Hasan, AIR 1916 P C 136. The judgment that is printed in the All India Reporter is of the Allahabad High Court which the headnote says was “confirmed” by the Privy Council. I shall content myself with citing the headnote :

“A obtained judgment in the Sub-Court Bareilly (British Indian Court) declaring his title to the properties of the deceased situate within the jurisdiction of that Court. Subsequently B instituted a suit against A in Rampur, a Native State for recovery of possession of the properties of the deceased situate within the Native State. There upon A filed the present suit for a declaration that the Judgment of the Bareilly Court would operate as res judicata in the Rampur Court and for a perpetual injunction restraining B from proceeding with the suit therein. The High Court held that as the Courts in British India were not competent to try suits with respect to property situate in Native State the judgment of the Bareilly Court would not operate as res judicata.

It being urged that under Section 13, Civil Procedure Code the rule contained in which was alleged to apply in Rampur the Judgment of the Bareilly Court was conclusive between the parties, the High Court held that it was only in proceedings on foreign Judgment that the question of the effect of foreign Judgment could properly arise.”
The second reason given by the High Court was quite sufficient and valid. There was no need to decide the first point which was for the Rampur Courts to decide. The High Court however, went further and decided whether their judgment would be res judicata under Section 13 of the Civil Procedure Code (as applied in Rampur which the High Court presumed was the same as in British India) in Rampur State and came to the conclusion that the words “directly adjudicated there by” meant the actual decretal part of their judgment. This question was not for the High Court to decide but for the Rampur Court.

162. I may mention here this suit which was filed for an injunction was one of a kind resorted to in the seventeenth Century of which the Reports do not exist apart from Lord Nottingham’s manuscripts to be found in 3 Swanston 603-607 (46) which seems to have long ago fallen in desuetude. No wonder the Privu Council judgment was :

“Their Lordships do not see their way to reverse the decision appealed from and will humbly advise His Majesty to dismiss the appeal. As the respondent, have not appeared there will be no order as to costs.”
163. It only remains to consider the argument in relation to the shares of the Indian Sugars and Refineries Ltd. It was contended that the shares must be deemed to be situated where they could be effectively dealt with and that was Madras, where the Head Office of the Company was situated. Learned counsel relied upon some English cases in support of his contention. It is not necessary to refer so those cases. The situs of shares between the Company and the shareholders is undoubtedly in the country where the business is situated. But in a dispute between rival claimants both within the jurisdiction of a Court over shares the Court has jurisdiction over the parties and the share scrips which are before the Court. The Mysore Court was in this position. Between the rival claimants the Mysore High Court could order the share scrips to be handed over to the successful party and if necessary could order transfer of the shares between them and enforce that order by the coercive process of the law. It would be a different matter if the Company refused to register the transfer and a different question might then have arisen; but we are told that the Company has obeyed the decision and accepted the executors as the shareholders. The judgment of the Mysore Courts on the ownership of the shares is ancillary to the main decision. It is therefore not necessary for me to consider the argument of Mr. Desai that jurisdiction attaches on the principle of effectiveness propounded by Dicey, but which has been criticised by the present editors of his book and by Cheshire. In my opinion; this controversy does not arise in this case, which must be decided on the plain words of Section 13 of the Civil Procedure Code.

164. For the reasons above given I would dismiss the appeal of the sons of Ramalingam (Civil Appeal No. 277 of 1958) and allow that of the executors (Civil Appeal No. 278 of 1958), dismissing C. Section No. 214 of 1944 with costs throughout. In the light of what I have decided I would have considered the remaining appeals and passed appropriate orders therein ; but this is unnecessary as my brethren take a different view in the two main appeals.

ORDER
165. In view of the majority judgment, there will be decree in terms as stated in the Judgment of the majority.

Order accordingly.

Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana (SC) 2012 AIR SC (Civil) 91

SUPREME COURT OF INDIA

JUDGMENT

R.V. Raveendran J. – By an earlier order dated 15.5.2009 [reported in Suraj Lamp & Industries Pvt.Ltd. v. State of Haryana & Anr. – 2009 (7) SCC 363], we had referred to the ill – effects of what is known as General Power of Attorney Sales (for short ‘GPA Sales’) or Sale Agreement/General Power of Attorney/Will transfers (for short ‘SA/GPA/WILL’ transfers). Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money (‘black money’) and to avoid payment of ‘unearned increases’ due to Development Authorities on transfer.

2. The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof :

(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.

Or

An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.

(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorising him to manage, deal with and dispose of the property without reference to the vendor.

Or

A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorising the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.

(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).
These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of Attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer, either at the instance of the vendor or at his own instance.

Ill-Effects of SA/GPA/WILL transactions

3. The earlier order dated 15.5.2009, noted the ill-effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:

“Recourse to ‘SA/GPA/WILL’ transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons :

(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.

(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.

(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.

Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the Government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.

This kind of transactions has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such ‘power of attorney sales’ comes to know about the vendors action, he invariably tries to take the help of musclemen to ‘sort out’ the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous ‘Power of Attorney Sale’ purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions.”
It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bona fide purchasers wanting to own a property with an assurance of good and marketable title.

4. This Court had therefore requested the learned Solicitor General to give suggestions on behalf of Union of India. This Court also directed notice to States of Delhi, Haryana, Punjab, Uttar Pradesh to give their views on the matter. The four states have responded and confirmed that SA/GPA/WILL transfers required to be discouraged as they lead to loss of revenue (stamp duty) and increase in litigations due to defective title. They also referred to some measures taken in that behalf. The measures differ from State to State. In general, the measures are: (i) to amend Registration Act, 1908 by Amendment Act 48 of 2001 with effect from 24.9.2001 requiring documents containing contract to transfer for consideration (agreements of sale etc.) relating to any immoveable property for the purpose of section 53A of the Act, shall be registered; and (ii) to amend the stamp laws subjecting agreements of sale with delivery of possession and/or irrevocable powers of attorney in favour of non-family members authorising sale, to the same stamp duty as deed of conveyance. These measures, no doubt, to some extent plugged the loss of revenue by way of stamp duty on account of parties having recourse to SA/GPA/WILL transactions, instead of executing deeds of conveyance. But the other ill-effects continued. Further such transaction which was only prevalent in Delhi and the surrounding areas have started spreading to other States also. Those with ulterior motives either to indulge in black money transactions or land mafia continue to favour such transactions. There are also efforts to thwart the amended provisions by not referring to delivery of possession in the agreement of sale and giving a separate possession receipt or an affidavit confirming delivery of possession and thereby avoiding the registration and stamp duty. The amendments to stamp and registration laws do not address the larger issue of generation of black money and operation of land mafia. The four States and the Union of India are however unanimous that SA/GPA/WILL transactions should be curbed and expressed their willingness to take remedial steps.

5. The State of Haryana has however taken a further positive step by reducing the stamp duty on deeds of conveyance from 12.5% to 5%. A high rate of stamp duty acts as a damper for execution of deeds of conveyance for full value, and encourages SA/GPA/WILL transfers. When parties resort to SA/GPA/WILL transfers, the adverse effect is not only loss of revenue (stamp duty and registration charges) but the greater danger of generation of ‘black’ money. Reducing the stamp duty on conveyance to realistic levels will encourage public to disclose the maximum sale value and have the sale deeds registered. Though the reduction of the stamp duty, may result in an immediate reduction in the revenue by way of stamp duty, in the long run it will be advantageous for two reasons : (i) parties will be encouraged to execute registered deeds of conveyance/sale deeds without any under valuation, instead of entering into SA/GPA/WILL transactions; and (ii) more and more sale transactions will be done by way of duly registered sale deeds, disclosing the entire sale consideration thereby reducing the generation of black money to a large extent. When high stamp duty is prevalent, there is a tendency to undervalue documents, even where sale deeds are executed. When properties are undervalued, a large part of the sale price changes hand by way of cash thereby generating ‘black’ money. Even when the state Governments take action to prevent undervaluation, it only results in the recovery of deficit stamp duty and registration charges with reference to the market value, but the actual sale consideration remains unaltered. If a property worth ‘5 millions is sold for ‘2 millions, the Undervaluation Rules may enable the state Government to initiate proceedings so as to ensure that the deficit stamp duty and registration charges are recovered in respect of the difference of ‘3 millions. But the sale price remains ‘2 millions and the black money of ‘3 millions generated by the undervalued sale transaction, remains undisturbed.

6. In this background, we will examine the validity and legality of SA/GPA/WILL transactions. We have heard learned Mr. Gopal Subramanian, Amicus Curiae and noted the views of the Government of NCT of Delhi, Government of Haryana, Government of Punjab and Government of Uttar Pradesh who have filed their submissions in the form of affidavits.

Relevant Legal Provisions

7. Section 5 of the Transfer of Property Act, 1882 (‘TP Act’ for short) defines ‘transfer of property’ as under :

“5. Transfer of Property defined : In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself [or to himself] and one or more other living persons; and “to transfer property” is to perform such act.” xxx xxx
Section 54 of the TP Act defines ‘sales’ thus :

“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made. Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.-A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property.”
Section 53A of the TP Act defines ‘part performance’ thus :

“Part Performance. – Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,

and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,

and the transferee has performed or is willing to perform his part of the contract,

then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.”
8. We may next refer to the relevant provisions of the Indian Stamp Act, 1999 (Note : Stamp Laws may vary from state to state, though generally the provisions may be similar). Section 27 of the Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affect the chargeability of duty on that instrument. Article 23 prescribes stamp duty on ‘Conveyance’. In many States appropriate amendments have been made whereby agreements of sale acknowledging delivery of possession or power of Attorney authorizes the attorney to ‘sell any immovable property are charged with the same duty as leviable on conveyance.

9. Section 17 of the Registration Act, 1908 which makes a deed of conveyance compulsorily registrable. We extract below the relevant portions of section 17.

“Section 17 – Documents of which registration is compulsory – (1) The following documents shall be registered, namely :-

xxx xxx

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

xxx xxx

(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.
Advantages of Registration

10. In the earlier order dated 15.5.2009, the objects and benefits of registration were explained and we extract them for ready reference :

“The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non- registration.

Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future “any right, title or interest” whether vested or contingent of the value of Rs. 100 and upwards to or in immovable property.

Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.

Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.”
Registration of documents makes the process of verification and certification of title easier and simpler. It reduces disputes and litigations to a large extent.

Scope of an Agreement of sale

11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr., (1977)3 SCC 247, observed :

A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra, [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.”

In India, the word ‘transfer’ is defined with reference to the word ‘convey’. The word ‘conveys’ in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership…. ….that only on execution of conveyance ownership passes from one party to another…..”
In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra, 2004(4) R.C.R.(Civil) 303 : [2004(8) SCC 614] this Court held :

“Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.”
It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.

12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.

Scope of Power of Attorney

13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata, 2005(12) SCC 77, this Court held :

“A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.

Scope of Will

14. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.

Conclusion

15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank, 2002(1) R.C.R.(Civil) 543 : 94(2001) DLT 841, that the “concept of power of attorney sales have been recognised as a mode of transaction” when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.

17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularise the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.

18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not ‘transfers’ or ‘sales’ and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said ‘SA/GPA/WILL transactions’ may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by Development Authorities. We make it clear that if the documents relating to ‘SA/GPA/WILL transactions’ has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.

19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding ‘SA/GPA/WILL transactions’ are not intended to apply to such bona fide/genuine transactions.

20. We place on record our appreciation for the assistance rendered by Mr. Gopal Subramaniun, Senior Counsel, initially as Solicitor General and later as Amicus Curiae.

21. As the issue relating to validity of SA/GPA/WILL has been dealt with by this order, what remains is the consideration of the special leave petition on its merits. List the special leave petition for final disposal.

Petition disposed of.

Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao , (SC) 2006(14) Scale 186

SUPREME COURT OF INDIA

JUDGMENT

S.B. Sinha, J. – Appellant is the son of Late Umeshchandra Madhav Joshi (hereinafter referred to as “the deceased”). He owned considerable properties. A Charitable Trust by the name of “Umesh Yoga Charitable Trust” was created by the deceased in his native village at Manor. For the said purpose, he donated 7 acres of land of his own. 4 acres of land was said to have been donated by the appellant herein. Deceased purchased a residential house at Dadar named “Umesh Dham” in 1949. The first floor of the said house was used for residence, which he also used for holding Yoga classes and also for manufacture of Hair Oil. Deceased started yoga classes. He also started manufacture of hair oil, namely, (Ramtirth Brahmi Hair Oil). Sometime thereafter, he along with his children shifted his residence to the ground floor of the said house. He had 7 sons and 3 daughters. Appellant herein is his second son. Respondent No. 2 allegedly eloped and married a Muslim boy. Respondent No. 1, however, had an arranged marriage. The relationship amongst the brothers and sisters, except respondent No. 2 was said to be cordial. Sudarshan, Jagdish and Pravin were allegedly helping the testator in management of the business of manufacture of hair oil. All his sons, namely, Sudarshan, Dr. Vishnu, Jagdish, Arvind, Sunil and Tarabai (respondent No. 2) lived together at the same house known as ‘Umesh Dham’. Appellant herein and another brother Sunil were not married. Appellant is a doctor of repute. He is a Gynaeocologist and Obstetricist and his qualifications are M.D. (Obst. and Gyt.), FISC, FCPC, D.G.O.D.F.P. He started his practice in 1971. He opened a clinic and hospital at Parel.

2. From the records, it appears that the deceased was suffering from malignancy Liposercoma (sic). There are some evidences on record to show that he was also suffering from left ventricular failure with Ischemia heart disease. The deceased is said to have no faith in the allopathy system of medicine. He had developed some respiratory problem. He was investigated by Dr. Panikar, a student of Appellant. He was taken to ICU of Breach Candy Hospital on 13.11.1983 by Appellant and his wife.

3. On 14.11.1983, the deceased expressed his desire to execute a Power of Attorney as also a Will. On his purported instructions, Appellant contacted Mr. M.K. Mahimkar, Advocate, who was working with M/s. Ramesh Shroff and Co. Mr. Mahimkar and Appellant visited the testator at Breach Candy Hospital. Deceased instructed Mr. Mahimkar to draft a Power of Attorney before drafting the Will as he expressed a desire to speak to his wife before executing the Will. He allegedly spoke to his wife. The Will was drafted the next day. While the Will was being drafted he asked Appellant and Pravin, his another son to wait outside the room. Appellant and Mr. Mahimkar visited the hospital during non-visiting hours for execution of the Will. It was drawn up in Mr. Mahimkar’s handwriting allegedly at the spot. They and one Mr. Phadke, classmate of Mr. Mahimkar entered the cubicle of ICU of the Hospital at 3.30 p.m. for execution of the Will. The deceased sent for Dr. Bhupender Gandhi, a friend of Appellant for attesting the Will. He reached the cubicle at about 4.30 p.m. The Will thereafter was executed.

4. Indisputably, the deceased was under the treatment of one Dr. Udwadia of the said Hospital. Appellant neither treated him nor did he examine him at any point of time. He even did not know of the diseases he had been suffering from. On 21.11.1983, the deceased was discharged from the hospital. He received visitors on 22.11.1983. In the early morning of 23.11.1983, he allegedly asked his wife Tarabai to count the cash lying in the almirah. He died soon after having asked his wife for coffee.

5. After cremation of the dead body, the factum of execution of the Will by the deceased was disclosed. A meeting of the family members was arranged in the office of Mr. Mahimkar for inspection of the Will; consent letters were also prepared; Pravin signed the same at the spot as he was to leave for Manore. Xerox copies of the consent letters were prepared. First Respondent herein also signed the consent letter. On 7.12.1983, a joint consent letter was given by sons of the deceased. Sunil also gave his consent letter on the said day separately.

6. However, no step was taken for obtaining a probate soon thereafter. On 1.4.1985, a deed of assignment in regard to the manufacturing unit of Hair Oil was executed in favour of Sudarshan for a consideration of Rs. 4 lakhs. As per the deed of assignment, a sum of Rs. one lakh (hereinafter as Will) was to be paid on or before 31.12.1986 and the rest of the amount was to be paid on or before 31.3.1988.

7. A Testamentary Application was filed by Appellant on 21.12.1985. On 8.1.1987, a joint consent letter was filed by Tarabai, Dr. Vishnu, Arvind and Sunil in the said Testamentary Application.

8. On 14.1.1987, a Promissory Note for Rs. 3 lacs was executed by Sudarshan in favour of Appellant in furtherance of the said deed of assignment. On 10.3.1987, a Caveat was filed by Mridula, first Respondent without affidavit and on 28.4.1987 an Affidavit was filed by her withdrawing the “no objection” earlier given for grant of probate. She was allowed to do so after she affirmed on an affidavit in support thereof.

9. The second respondent also filed a caveat. Thereafter a Testamentary Suit was filed by Appellant before the Bombay High Court wherein respondents herein were parties. The hearing was taken up in 1994. Recording of evidence in the matter commenced on 7.11.1984. It continued upto 8.11.1994. Arguments were heard and concluded in December 1994. Appellant examined himself in the said proceeding. He had examined his mother Tarabai and also the attesting witnesses viz., Mr. Mahimkar and Dr. Bhupender Gandhi. He also examined Dr. Vijay Kumar PanikA . R.

10. A learned Single Judge of the High Court by a judgment and order dated 28.11.1995 dismissed Appellant’s application for grant of probate, inter alia , opining that ‘although respondents herein could not prove that the signatures of the testator appearing in the Will as also those of the attesting witnesses, were not theirs; the circumstances surrounding the execution of the Will were so suspicious that it was impossible to believe that the Will had been executed at the place, time and in the manner suggested by Appellant’. In arriving at the said conclusion, the learned Single Judge took into consideration the purpose for which the Will was proposed to be executed, the manner in which the same was drafted and executed, the effect thereof and various other circumstances and in particular the one that Appellant was totally ignorant of the ailment(s), the deceased was suffering from. The learned Single Judge concluded that no case for grant of probate had been made out.

11. An Intra-court Appeal was filed by Appellant thereagainst. During the pendency of the Appeal, Purnima, another sister of Appellant took out Chamber Summons, revoking her consent to the Probate Petition on 16.6.2003, inter alia , on the allegations that she had doubts about the genuineness of the alleged Will and wished to support the respondents herein. Chamber Summons had also been taken out by Jagdish, Pravin and Dr. Vishnu in the pending appeal. They also revoked their consent to the probate petition and prayed to be joined with Respondents herein. In support thereof, an affidavit was affirmed by Jagdish in July 2003 not only questioning the genuineness of the Will but also expressing his shock and surprise at the fraud played on all the family members by Appellant. By reason of the impugned judgment dated 4.2.2004, a Division Bench of the High Court affirmed the judgment and order of the learned Single Judge.

12. Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of Appellant raised the following contentions in support of the appeal :

(1) Execution of the Will having duly been proved, the High Court committed an error in passing the impugned judgment. The fact that all the brothers and sisters of Appellant had given their consent, except Respondent No. 2 herein, who was under the influence of her husband, who was a Muslim boy clearly established that the Will was genuine.

(2) Subsequent withdrawal of the consent by Mrudula would also show that she had changed her mind only on the ground of not having been paid an amount of Rs. 50,000/- as was allegedly promised to her which cannot be relied upon.

(3) The evidence brought on records clearly show:

(i) The deceased was of sound mind and, thus, had the capacity of making his Will on 15.11.1983.

(ii) Indisputably, the deceased having executed the Will and the same having been attested by Shri Mahimkar and Dr. Gandhi, the genuineness thereof could not have been questioned.

(iii) The background of hospitalization of the deceased had not been appreciated by the High Court in its proper perspective, as it failed to consider that he had always been reluctant to take allopathic drugs and was, thus, expected to be in the hospital for a short period.

(iv) The deceased was kept in the ICU, not because his condition was serious but because no bed was available elsewhere.

(v) Although he was suffering from cancer, the same being within tolerable limits, it was not necessary to put him under any sedative.

(vi) Deceased left hospital in good health. He was brought home by Niranjan. He went to his office on the first floor and met all his family members. On 22.11.1983, he signed a letter of authority addressed to the Punjab National Bank. He had also expressed his desire to go to the village after his discharge from the hospital.

(vii) On 22.11.1983, he met many of his friends and enquired about their various activities. On 23.11.1983 at 3.00 a.m. he asked Tarabai, his wife to prepare coffee for him.

(viii) Mrudula has been visiting her father during his illness and at least she should have testified in the witness box to depose that in regard to the deceased’s mental condition and having not done so, she now should not be permitted to take a different stand.

(4) Despite overwhelming evidence of his being in a proper state of mind, no evidence was adduced on behalf of Appellant.

(5) The High Court committed a serious error insofar as it failed to take into consideration that Appellant did not play an unprominent role in the preparation of the Will and was not even present at the time when instructions were being given for its preparation on 15.11.1983 as also at the time of execution thereof.

(6) He never visited his father and did not know anything about the ailments his father was suffering from, which cannot be said to be unnatural, particularly when he was only a gynaecologist and not an oncologist.
13. Mr. Rajiv Dutta and Mr. Sunil Kumar Gupta, learned Senior counsel appearing on behalf the first and second Respondents respectively, on the other hand, submitted :

(1) Both the learned Single Judge and Division Bench of the High Court having arrived at a concurrent finding of fact, this Court should not interfere therewith.

(2) The circumstances in which the Will was prepared, attested and executed, namely, in a cubicle of ICCU raise serious doubts about the genuineness thereof.

(3) No independent witness having been examined, for reasons being known to the appellant, the impugned judgment cannot be faulted as particularly non-examination of the doctor who had been attending the deceased at Breach Candy Hospital having not been explained, the case must be held to be shrouded in mystery.

(4) Both the attesting witnesses Dr. Gandhi and Mr. Panikar being known to the Appellant for a long time, no reliance has rightly been placed on their evidence by the High Court.

(5) There was no reason as to why the deceased would not leave anything for his other children, particularly when he was running a business and the residential house was not being used for any charitable purpose.

(6) Like Appellant, Sunil, who was the youngest of all, was also unmarried and having been residing with his father and unemployed, it was unnatural that no arrangement was made for him.

(7) Deceased having been suffering from a serious ailment, it was unlikely that he expressed his desire to execute a Power of Attorney and Will at the same time.

(8) No reason has been assigned and no explanation has been offered as to why no step was taken immediately for grant of probate despite the fact no objection was raised by any of the legal heirs, except the second respondent.

(9) No explanation has been offered as to why the business of manufacture of hair oil would be transferred to Sudarshan for valuable consideration.

(10) The fact that another sister and three brothers of Appellant revoked their consents and expressed doubts as regards the genuineness of the Will also establishes that the execution of the Will was surrounded by suspicious circumstances.

(11) Theory set up by the propounder that the Will was executed in furtherance of the Charitable Trust activities having been found to be not correct and the property of the deceased comprised not only of a business but also a residential house clearly goes to show that the High Court was correct in opining that the execution of the Will has not been proved by Appellant.
14. Before adverting to the rival contentions of the parties, as noticed hereinbefore, we would place on record that three brothers of appellant, namely, Arvind, Vishnu and Sunil had filed interlocutory applications before this Court for their impleadment in this Appeal. Mr. Jaideep Gupta, appearing in support of the said application submitted that they are supporting the appellants.

15. The learned Single Judge as also the Division Bench of the High Court had taken great pains in analyzing the evidence, both oral and documentary, brought on records.

16. The learned Judges proceeded on the basis that the Will in question bear the signatures of the deceased and might have been attested by Mr. Mahimkar, Advocate and Dr. Bhupender Gandhi, but circumstances surrounding the execution of the Will being suspicious and the appellant having not been able to remove the same, the prayer for grant of probate should not be granted.

17. The circumstances enumerated by the learned Division Bench in affirming the judgment and order passed by the learned Single Judge are as under :

(i) The Propounder took part in execution of the Will, being sole recipient of the legacy.

(ii) The dispositions made in the Will by the testator are unnatural, unfair and improbable as wife and grand children were excluded from the benefit thereof despite the fact that he had love and likings for all.

(iii) There is no recital in the Will that Respondent No. 2 was to be specifically excluded.

(iv) Why the Will had been executed by the testator within 24 hours of his hospitalization has not been explained.

(v) Witnesses to the Will were interested persons, and evidence adduced in support of execution of the Will was unsatisfactory, particularly when the doctor treating him had not been examined.

(vi) The ailment from which the testator had been suffering was not being disclosed which shows that he might have been terminally ill as within eight days from execution of the Will, he died.

(vii) There was no satisfactory evidence to show as to why the testator sent for Dr. Gandhi for attestation of the Will although he did not have much acquaintance with him.

(viii) No satisfactory evidence was brought on record as regards the cause of death of the deceased.

(ix) There is no explanation as to why the appellant and others visited the hospital during non-visiting hours in the ICU cubicle for execution of the Will.
18. From the evidence brought on record, it appears that the deceased knew that he had been suffering from cancer for 10-15 years prior to his death as he claimed that he was cured of his disease because of his practices in yoga. Admittedly, he was suffering from Liposarcoma which is a malignancy of fat cells. He was also suffering from left ventricular failure. The ailments were serious ones as was expressed by Dr. Bhupender Gandhi in his deposition. Dr. Gandhi happened to be a long standing friend of the appellant. He admitted to have met the deceased only once or twice but never treated him; even never examined him. Dr. Panikar was a student of the appellant. He was a young doctor. He had regularly been checking up the deceased medically. From the evidence of Panikar, it appears that the deceased knew that he had been suffering from cancer but according to him as he used to do yogas, he was cured of the said disease. He was suffering from respiratory trouble also. Deceased although was not taking any allopathic medicine, he could be persuaded to be hospitalised. Panikar assured him that he would be hospitalized only for one night. Whether necessary or not, he was admitted in ICU. The treatment started immediately. Presumably because he would not take any oral allopathic drugs, he was put on intravenous fluid. If he was aware of the fact that he would remain in the hospital for one day only, it does not appeal to any reason as to why he would think of execution of a Power of Attorney as also of execution of a Will in favour of Appellant at the same time. If he was under the impression that he was no longer suffering from cancer, it was expected that he would think of execution of any document only after he came back home. He asked the appellant only to contact M/s. Shroff and Co. He did not say about Mr. MahimkA . R. Mr. Mahimkar was said to have been deputed by the firm. No evidence to that effect was led. Admittedly, he was known to the appellant since 1976. He had handled the Habeas Corpus petition before the Bombay High Court filed by the husband of Respondent No. 2. Mahimkar came with Appellant. He was accompanied by a Clerk. They were allowed to enter ICU without any prior appointment. There is nothing to show that permission of the hospital authorities had been taken in regard to the visit of persons who were not his relatives. In the small cubicle of ICU which was separated by curtains only and there were other serious patients, Power of Attorney and the Will were said to have been drafted. The execution of the Will was allegedly deferred by a day as deceased wanted to consult his wife. According to her, she raised no objection to the execution of the Will in favour of Appellant. Whether the youngest son and other children were taken into confidence or not, is not known. Power of Attorney would have served the necessity of representing the deceased before various authorities and banks. The very fact that he wanted to execute a Power of Attorney clearly shows that he did not believe that he would meet his end soon. Ordinarily, a person would not think of execution of a Power of Attorney and a Will simultaneously. Although, he chose to execute the Will, he evidently did not have any document with him for the purpose of instructing the Advocate effectively and in details. No document had been handed over to Mr. Mahimkar by the appellant and the deceased. He came to the hospital with a Clerk, dictated the Will then and there and the same was executed by the deceased. Dr. Gandhi although a friend of the appellant deposed in his evidence that the deceased had not known him very intimately. Why, thus, he had been called as an attesting witness is a mystery. A nurse had allegedly tried to contact him. Whether he could be contacted or not is not known. He, however, walked almost immediately after the Will was drafted. He attested the signatures of testator.

19. In his Will, the deceased had, inter alia , declared:-

“I, Umeshchandra Madhav Joshi of Bombay, Indian Inhabitant, aged 76 years, residing at Umeshdham, 27, 2nd Vincent Square Street, Dadar, Bombay 400 014, do hereby revoke all my former Wills and testamentary dispositions and declare this to be my last Will and Testament.

1. I appoint my son Dr. Niranjan Umeshchandra Joshi to be the Executor and Trustee of this my last Will.

1. Whatever movable and immovable estate I am seized and possessed of or otherwise well and sufficiently entitled, the same belong to me absolutely and no one has any claim or interest whatsoever to or in the same or any part thereof and I am entitled to make such dispositions thereof as are hereinafter contained.”

xx xx xx

“7. I declare that all the rest and residue of my estate wheresoever situate, after payment of funeral expenses, debts, liabilities, probate duty, costs, charges and expenses of management and administration is hereinafter referred to as my “Residuary Estates”.

8. I devise and bequeath my residuary estate to my son Dr. Niranjan Umeshchandra Joshi absolutely.

9. I authorise and empower my executor and Trustee to postpone the realization, sale and/or conversion of my estate or any part thereof for so long as he shall think fit.”
20. Why other terms of the Will had to be inserted is not known. There were two schedules in the Will. The first schedule thereof reads as under:-

Valuation of the movable and immovable property of the deceased in the State of Maharashtra

1.

Cash in the house

Rs. 2,434.00

2.

Household goods, furniture

Rs. 1,000.00

3.

Cash in Bank:

i) Punjab National Bank, Khodadad Circle, Dadar, Bombay 400 014 Current A/c No. 1835

Rs. 3,56,465.85

ii) Punjab National Bank, Khodadad Circle, Dadar, Bombay 400 014 A/c No. 8794

Rs. 32,316.47

4.

Leasehold property consisting of Leasehold land with building standing thereon known as Umeshdham, Vincent Square, Street No. 2, Dadar, Matunga Estate, Dadar, Bombay 400 014, as per the Valuation report of M/s. Design Collaboration, Architects, Bombay

Rs. 4,00,000.00

5.

Securities:

Deposits with Bombay Electric Supply And Transport Undertaking as security For payment of energy bill etc. paid Under Receipt No. 61253 dated 27.5.80

Rs. 4,850.00

Rs. 8,12,066.32

Deduct amount shown in Schedule No. 11

Rs. 4,77,605.30

Net Total

Rs. 3,34,461.02

21. Schedule II details his liabilities to each of such persons named therein, amounting to Rs. 4,77,605.30. Mr. Mahimkar or Dr. Gandhi do not say that documents required to prepare the Will were with the deceased. Deceased was admitted in the hospital on an emergency basis. Evidently when he was admitted in ICU, he would not be permitted to carry documents with him. It is unnatural that he would remember all the details of his assets including the amount of cash and the amount lying in bank as also the details of his liabilities etc.

22. Both the schedules of the Will were meticulously drafted. Tarabai in her deposition did not say that she or Appellant had furnished all those details to Mahimkar in advance. Except they, in the given situation, no other could do so. An inference can, therefore, be safely drawn that Appellant had a role to play in execution of the Will. Story of the Will being drafted in the cubicle of ICU of the Hospital, thus, cannot be believed. In all probabilities, Will was drafted by Mahimkar in his Chamber. It may also be borne in mind that as the deceased could only sign in English, question of his dictating the Will and at least the term thereof was wholly unlikely. Will has been drafted by a professional. The theory set up by the propounder that he believed that the appellant would carry out his charitable activities is not reflected from the Will. No reason has been assigned as to why he had chosen Appellant alone for taking the entire benefit of the legacy.

23. It is of some interest to notice that although the amount of cash in hand had already been disclosed in the first schedule of the Will but when he came back, he asked Tarabai to count the cash once over again. What was the amount, if any, found in the cash-box is not known.

24. It is true that the contesting respondents did not examine themselves, but it is equally true that apart from his mother and friends, nobody was examined on behalf of Appellant also. If the other sons had implicit faith in their father and accepted that the Will was genuine, they could also have been examined. They indisputably signed consent letters. We do not know under what circumstances, consent letters were obtained. Only Pravin had given consent in the Solicitor’s office; others gave their consent at a later stage.

25. What was the frame of mind of the deceased could have been best stated by the Doctor who was attending on him. Appellant curiously even was not aware of the ailments, the deceased was suffering from. It is expected that he would have known at least the ailments of his father, particularly when he was diagnosed to be suffering for ventricular failure. His other three sons, particularly Sunil had been helping the deceased in carrying on the business. There is no averment in the Will how the business and the Trust would be run.

26. Some directions in regard to running of the Trust were also expected to be given in the Will.

27. The manner in which the death certificate of the deceased had been issued also raises some suspicions. Although, he expired at his own house, and he was declared dead by Dr. Panikar; the death certificate was prepared in a printed form. It was filled up in hand but the time of death was shown as 7.00 a.m. The cause of death is said to be respiratory failure. How the printed form was filled in, may better be stated in the words of the learned Single Judge:

“……..The next important document is the Medical Certificate showing the cause of death given by Dr. PanikA . R. It is a printed form which is filled in hand wherein the time of death is shown as 7 a.m. and against “Disease of condition directly leading to death” the following is written in hand: “Respiratory failure”and as against “approximate interval between onset and death” 8 days are mentioned. Under “Antecedent Cause” and “Morbid conditions, if any, giving rise to the above cause, stating the underlying condition least” “Bronchopneumonia and Liposarcoma” in hand are entered into and as against “Approximate interval between onset and death” ’20 days’ are mentioned. It is signed by Dr. Panikar with his full name written under the signature and as against “Address or rubber stamp of the institution”. Rubber stamp showing “Parel Hospital, 94, Shri Parmar Guruji Marg, Parel, Bombay-400 012″ is affixed.”
28. Who had filled up the form in not known. It is nobody’s case that Dr. Panikar was attached to Parel Hospital.

29. Even in the death report entered into the Municipal record of the Bombay hospital the cause of death was shown to be Bronchopneumonia and Liposarcoma.

30. The learned Single Judge has also noticed that there are documents to show that the deceased was being treated by several other doctors including Dr. Anibhut P. Vohra. All the persons including ‘Tarabai’ curiously did not know the nature of ailments the deceased was suffering from and the period of his illness. In her deposition, she was confronted with her affidavit in earlier litigations but she profusely denied the averments and contents thereof. She had also denied the signatures of persons on the documents pertaining to earlier litigation other than herself and her husband on various documents with which she was confronted with. There is no reason as to why she should do so particularly when her categorical stand in the earlier litigations was that deceased had been suffering from various ailments since a long time.

31. The conduct of Appellant in executing the deed of assignment in favour of Sudarshan even before filing the application for grant of probate cannot also be appreciated. Before the grant of probate, he had no legal authority in that behalf.

32. Section 63 of the Indian Succession Act lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Indian Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.

33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.

34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances :-

(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;

(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;

(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
[See H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors., AIR 1959 Supreme Court 443 and Management Committee T.K. Ghosh’s Academy v. T.C. Palit and Ors. AIR 1974 Supreme Court 1495]

35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. [2006(11) SCALE 148], wherein this Court has held that the court must satisfy its conscience as regards due execution of the Will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the Will is otherwise proved.

36. The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be.

37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the judge even if there exist circumstances of grave suspicion. [See Venkatachala Iyengar (supra)]

38. Even if we apply the tests laid down by this Court in large number of decisions, including the ones referred to hereinbefore, we are of the opinion that no case has been made out to interfere with the findings of both the learned Single Judge as also the Division Bench of the High Court.

39. In Venkatamuni (supra), this Court has also opined that the appellate court while exercising its jurisdiction would ordinarily not interfere with the finding of fact arrived at by the learned Trial Judge if the view taken by it is reasonable. We, therefore, agree with the conclusions arrived at by the High Court.

40. The appeal is dismissed with costs. Counsel’s fee assessed at Rs. 25,000/-.

Appeal dismissed.