(1) This appeal raises an important question under Section 13 of the Code of Civil Procedure as regards the effect of a foreign judgment on a subsequent suit based on the same original cause of action between the same parties in respect of some other properties.
(2)There is no dispute about the facts relevant to the appeal between the parties. The land in dispute were of the ownership of one Ishwar, son of Ganapiah, who died on 19-1-1945 without leaving any direct heirs behind him. The lands are situated at Manvalli in Siddapur Taluka of North Canara District. Respondent No. 1 institutes O.S. 44/56 in the Court of the Civil Judge, Junior Division, Sirsi on 7-6-1956, for a declaration that he was the nearest heir to the deceased Ishwar and for possession and other consequential relief's against the appellants and other respondents. The plaintiff claimed to be the father's sister's son of deceased Ishwar while the appellant claimed to be the mother's mother of Ishwar. Ishwar owned some immovable property at Talava in Sagar Taluka of Shimoga District which formed part of the princely state of Mysore. In respect of that property the plaintiff instituted O.S. 268 of 46-47 in the Court of Munsiff at Sagar against the appellant and other, claiming to be the nearest heir to deceased Ishwar.
This suit was decreed by the trial Court. The present appellants challenged that decision in R.A. 59 of 48-49 in the Court of the Subordinate Judge at Shimoga, the appellate Court upheld the decision of the trial Court and dismissed the appeal. The former High Court of Mysore dismissed the second Appeal No. 436 of 49-50 on 21-8-1950 declining to interfere with concurrent findings on facts. In the trial Court at Sirsi the plaintiff relied upon the Judgment of the Munsiff's Court at Sagar as conclusive between the parties as regards his right to succeed to the property of Ishwar in preference to the present appellant, under Section 13 of the Code of Civil Procedure. The trial Court held that the judgment operated as res judicata and decreed the suit in full. The present appellants then challenged that decision in Civil Appeal No. 187 of 1957 which was heard by the Civil Court concurred with the view taken by the learned trial Judge and dismissed the appeal on 2-3-1961. The present appeal questions the correctness of that decision.
(3) Mr. T.S. Ramachandra for the appellants contended that the judgment of the Munsiff's Court at Sagar being a foreign judgment, was not binding on the appellants as, under exception (a) to S. 13 of the Code, that Court was not a Court of competent jurisdiction to pronounce judgment on the plaintiffs right to the suit properly. He also contended that as the plaintiff's suit was not one instituted on the basis of the foreign judgment, it was the duty of the trial Court to have decided the relationship of the parties to Ishwar on the evidence before it and the right to succession in accordance with the Hindu Law operating in the North Canara District. He submitted that the Courts below had erred in holding that the judgment of the Sagar Court operated as res judicata. Mr. V. Krishna Murthy the learned Advocate for the first respondent tried to support the judgment of the Courts below and incidentally submitted that as the judgment of the High Court of Mysore was delivered on 21-8-1950, that judgment could not be regarded as a foreign judgment. According to him, it is the law of domicile that determines the question of succession.
(4) It is common ground that the Indian Civil Procedure Code was made applicable to the area comprising the former Mysore State with effect from 1-4-1951; prior to that date, the State had its own Code, though it was substantially identified with the Code of Civil Procedure, 1908. Section 2(5) of the Code as it stood prior to its amendment in 1951, defined a 'foreign Court' as meaning 'a Court situate beyond the limits of British India and is not established or continued by the Governor-General-in-Council' A 'foreign judgment' is defined in Section 2(6) as 'judgment of a foreign Court'. As laid down by the Privy Council in Brijlal v. Govindaram, AIR 1947 PC 192 a foreign judgment is 'an adjudication by a foreign Court upon the matter before it' and not a statement by a foreign Judge of the reasons for his order. Section 13 of Code reads:
'A foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except:-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.'
In the present case, the appellant does not challenge the judgment of the Civil Court at Sager on any other grounds mentioned in Clauses (b) to (f). He concedes that the foreign judgment was between the appellant and the first respondent and some others and that the parties were litigating under the same title as regards their rights to succeed to the properties of Ishwar within the jurisdiction of that Court. The wording of the section makes it plain that such judgment shall be conclusive as to any matter directly adjudicated upon by a foreign Court between the same parties. The word 'matter' occurring in Section 13 of the Code means 'the right claimed'; it is not equivalent to the expression 'subject-matter'. Therefore the decision of a foreign Court on title to immovable property within its jurisdiction will be conclusive between the parties in India provided it is a decision of a competent Court and does not suffer from any to the infirmities mentioned in the different clauses in Section 13 of the Code. In this view the decision of a foreign Court would not be effective in respect of property situate outside the jurisdiction of such Court even though title to properties in both the suits is founded on an identical cause of action. The reason is that succession to the estate of a person is governed by lex situs in the case of immovable properties and therefore the title to immovable property must be adjudicated upon by the Court of the country in which such property is situate.
(5) The word 'conclusive' occurring in S. 13 as explained in Dicey's Conflict of Laws' (seventh Edition, at page 993) means 'unimpeachability'. Section 13 of the Code itself embodies the various grounds on which the conclusiveness of a foreign Judgment can be attacked. In the matter of conclusiveness, there is a well recognized distinction in private International Law between a judgment in rem and a judgment in personam. In his work on 'Private International Law' G.C. Cheshire has explained the points of distinction in very clear terms.
'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. x x x x x x'
So far as the law in India is concerned, Section 41 of the Indian Evidence Act incorporates the law on the subject of judgment in rem, without using that expression. A final judgment, order or decree of a competent Court 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 is relevant when the existence of any such thing is relevant. Such judgments are conclusive of matters actually decided upon between the parties to the suit or their privies. The conclusiveness of a foreign judgment forms the subject-matter of Section 13 of the Code of Civil Procedure and receives the same recognition in India as is accorded to it in England. In the present case the conclusiveness of the judgment of the Sagar Court attaches only to the title to the property situated within the jurisdiction of that Court. That judgment cannot have extra-territorial effect because the Court at Sagar was not competent to adjudicate upon the rights of parties in respect of immovable property situated outside its jurisdiction.
(6) In this view, it would appear that the Courts below have erred in holding that the judgment of the Sagar Court operated as res judicata. The principle of res judicata laid down in S. 11 of the Code is wider than the principle of conclusiveness of foreign judgment laid down in S. 13 of the Code. The points decided by the Civil Court at Sagar related to the preferential claim of the rival claimants to the property of deceased Ishwar situated in a foreign territory. Mr. Krishna Murthy's contention that the judgment of the Sagar Court ceased to be a foreign judgment when the princely State of Mysore became part of the Indian Union cannot be accepted because subsequent political changes cannot change the nature of judgment delivered by a Court which was a foreign Court when it pronounced that judgment. As laid down by the Supreme Court in Moloji Narasingh Rao v. Shankar Saran, : 2SCR577 , 'the effect of the judgment obtained before the constitutional changes does not change unless there is a specific provision to the effect.' and 'if a decree is unenforceable in a particular Court when it was passed, it does not become enforceable and valid simply because of the political changes. x x x x x '.
(7) In this connection Mr. Ramachandra submitted that the rival claims of the parties to succeed to the estate of deceased Ishwar has to be decided afresh on the evidence before it by the Civil Court at Sirsi. He sought to sustain this argument by relying upon the decision of the Supreme Court in Viswanathan v. Rukn-ul-Mulk Syed Abdul Wazid, : 3SCR22 . That was an appeal which arose out of suits instituted by the plaintiffs as sons of one Ramalingam, for possession of movable and immovable properties in the town of Madras, against the executors of Ramalingam's will and others. The defendants sough to non-suit the plaintiffs on the strength of a judgment of the former Mysore High Court which had rejected the plaintiff's claim for possession of movable and immovable properties ascertaining that the property in suit was the joint family property of themselves and their deceased father Ramalingam and that the latter was not competent to dispose the same by will. It was contended by the executors that the decision of the Mysore High Court operated as res judicata. Their Lordships of the Supreme Court repelled the contention on the ground that the suits in the District Court at Bangalore did not relate to the personal status of Ramalingam and his sons but to the character of the property devised by the will and that the judgment of the foreign Court was not conclusive. While discussing this contention, the Supreme Court laid down:
'..... A decision of foreign Court directly relating to title to immovable property within the jurisdiction will of course be regarded between the same parties as conclusive by the Courts in India; but that decision is ineffectual in the adjudication of claims to immovables without the jurisdiction of that foreign Court, even if the foundation of title in both the jurisdictions is alleged to 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 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 properties must be decide 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. x x x x x x'
Their Lordships further discussed the plea of res judicata with reference to a foreign judgment and explained the law on the point.
'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 judgment 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 matter which might and ought to have been made ground of attack or defence is the former suit. The rule of conclusiveness of foreign judgment 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 the Court for the application of the 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 law.
In this view of the legal position, the judgment of the Civil Court at Sagar will be conclusive only in so far as the claim to property situate within its jurisdiction is concerned and cannot operate as res judicata in the suit in Sirsi Court.
(8) My attention was also drawn to the decision of Tekchand, J. in Amru v. Bhagwani, AIR 1929 Lah 627 in which his Lordship laid down that Section 13 of the Civil Procedure Code is no bar to the Courts in British India deciding an issue relating to title to an immovable property in British India, though it had been adjudicated upon by a foreign Court. In arriving at this conclusion his Lordship found support from the following passage from Piggot on 'Foreign Judgment'-
'If a Court pronounces a judgment affecting land out of its jurisdiction, the Courts of the country where it is situated, and, it is presumed, also the Courts of any other country are justified in refusing to be bound by it, or to recognise it; and this even if the judgment proceeds on the lex loci rei state'.
(9) The learned Advocate for the appellant has also relied upon the decision of Privy Council in Maqbul Fatima v. Amir Hasan Khan, AIR 1916 PC 136 in which the Judicial Committee merely affirmed the view taken by the High Court of Allahabad to the effect:
'...... It is only in proceedings based upon 'foreign judgments' that the question of the effect of the 'foreign judgment' can properly arise.'-
It is unnecessary to discuss this fact of the question since the present suit is not based upon the judgment of a foreign court but is founded independently upon the original cause of action.
(10) From the aforesaid discussion, it will be manifest that the lower Courts erred in treating the judgment of the Sagar Court as res judicata. Mr. Krishna Murthy for the respondents sought to support the judgments of the courts below by relying on the decision of the Bombay High Court in Vasant v. Dottoba, : AIR1956Bom49 and that of the Privy Council in Nataraja v. Subbaraya AIR 1950 PC 34. In both these cases, the judgments of the foreign courts related to the declaration that the claimant in each case had been validly adopted according to the law of domicile of the widow making the adoption. So far as the Bombay High Court is concerned, it held that the judgment of the Civil Court at Belgaum in so far as it declared the status of the adopted son in a suit between the same parties was binding between the parties in their subsequent litigation in the Civil Court at Kolhapur.
In Nataraja's case, AIR 1950 PC 34 the Privy Council held that the judgment of the Court at Pondicherry recognising the validity of the adoption as having been duly made in accordance with the law of domicile of the widow was 'to be given great weight in all the matters with which it dealt' in the suit at Madras as the appellants were not parties to the suit at Pondicherry. In the circumstances of the case, their Lordships were of the opinion that 'the French judgment has to be regarded as strong and uncontradicted evidence.
(11) Mr. Krishna Murthy next referred to the decision in AIR 1947 PC 192. In that case the plaintiff instituted a suit on the original side of the Bombay High Court against the respondents for certain reliefs on the basis of an agreement of partnership entered into at Indore in respect of a Mill working at Indore. The respondents relied upon an award decree passed by the High Court at Indore as conclusive between the parties and the Bombay High Court dismissed the plaintiff's suit. In an appeal to the Privy Council the appellants conceded that the arbitration in the case was governed by the Indore Arbitration Act. So, their Lordships were of the opinion that the appropriate Court to deal with the matter was the Court at Indore, that it was a Court of competent jurisdiction within Section 13 of the Code and that 'it was for the High Court of Indore to interpret its own law and rules of procedure.
(12) The decisions relied upon by Mr. Krishna Murthy proceeded on the principle that the judgment of foreign Courts which declare the status of persons domiciled within their territory are by the comity of nations treated in India as analogous to judgments in rem. The decision in Messa v. Messa, AIR 1938 Bom 394 and Nataraja v. Subbaroya, AIR 1939 Mad 693 affirm this position. It is difficult to predicate what are all the matters comprehended by the term 'status'. There is an exhaustive discussion of the meaning of this term by Roscoe Pound' in his 'Jurisprudence' (See Vol. IV pages 262 to 272, Edition 1959). It is sufficient to note that status of a person means his 'Personal legal condition, that is to say, a man's legal condition only so far as his personal rights and burdens are concerned, to the exclusion of his proprietary relation'. An adjudication on adoption will in law amount to a declaration of status and is decided according to the law of domicile of the party making the adoption. The claim to succession is not a matter of status in this sense but would relate to the 'proprietary relation' of the claimant with reference to deceased estate-holder.
(13) Though the argument advanced for the appellant that rights to immovable property should be decided according to the law of the land in which such property is situate is sound, it has little practical value in India in respect of persons who are governed by the Hindu Law. The Indian Succession Act which is the law of the country does not apply to Hindus and the right to succession is governed by the Hindu law which is the law of domicile. As stated in Maine's Hindu Law and Usage:
'prima facie any Hindu residing in a particular province of India is held to be subject to the particular doctrine of Hindu law recognised in that province. But this law is not merely a local law. It becomes the personal law, and a part of the status of every family which is governed by it. Consequently where any such family migrates to another province, governed by another law, it carries the own law with it, including any custom having the force of law......' (Pages 89-90, Eleventh Edition).
(14) In short, 'the conclusiveness of a foreign Judgment in rem relating to foreign land is based on the exclusive jurisdiction which the courts of every country claim to exercise over lands situate within that country; and on the same principles, no foreign judgment affecting to adjudicate on the title to English realty would receive recognition in an English Court (Vide Paragraph 270, Halsbury's Laws of England, Vol. VII, Third Edition, page 152). It has already been indicated that this is also the law laid down by the Supreme Court in Viswanathan's case, : 3SCR22 . The Civil Court at Sagar did not decide and could not have decided, the title to the properties situate within the jurisdiction of the Civil Court at Sirsi and therefore the judgment of the Sagar Court cannot operate as res judicata. It would follow that the Courts below therefore erred in holding that the judgment operated as re judicata. The Courts have not addressed themselves to the evidence in the case and hence it would be necessary to remand the case for decision on merits. It would be for the trial Court to determine the evidentiary value of the judgment of the Sagar Court in determining the main question at issue.
(15) In the result, I allow, the appeal, reverse the judgment of the two lower Courts and remit the suit back to the trial Court for decision according to law in the light of the observations made above. Both parties will be free to lead such evidence as they think fit. Costs of this appeal shall be costs in the cause.
(16) Appeal allowed.
(17) Case remanded.