1. The 1st defendant in a suit for partition of the assets of a person named Dr. Krishnan, who died in England on 18th October 1950, is the appellant; and the dispute is confined to the assets included in Schedule C to the plaint. These assets constitute the sale proceeds of the properties left by Dr. Krishnan in England, both immovable and movable, consisting of a house and other movables. The assets amount to Rs. 1,18,075/- and that amount is now in deposit within the jurisdiction of the lower Court.
2. Three Ezhava brothers, Sankaran Padmanabhan, Sankaran Krishnan (deceased Dr. Krishnan) and Dr. Sankaran Govindan (1st defendant), and a sister, the 2nd defendant, were the children of late Sankaran belonging to the erstwhile Travancore State. Dr. Krishnan left for England in 1920 for higher studies in medicine. For some time he received remittances from home; but after his lather's death his elder brother, Padmanabhan, did not send regular remittances and therefore Dr. Krishnan was stranded in England. He met an elderly lady, Miss Hepworth; and she helped him to prosecute his studies. He qualified himself in medicine and started practice at Sheffield and wasable to build up a comfortable practice. Subsequently be got employed in the National Health Scheme; and he purchased a building, 75-Wood House Road, Sheffield, where he housed his evening surgery. He was living in a rented house aft 97-Prince of Wales Road with Miss Hepworth. He had at the time of his death a private secretary, named Miss Esme Mary Woodliff.
3. In 1946 Dr. Govindan, the 1st defendant, proceeded to England, according to him, with the double purpose to qualify himself for F.R.C.S and to bring back his brother, Dr. Krishnan. He prosecuted his studies in England, for which Dr. Krishnan helped him with money; and ultimately, during the close of 1949, he returned to India. Dr.; Krishnan did not accompany him; and he died in England suddenly on 18th October 1950 without leaving a will. He left no wife nor children, and his assets in England, as stated already, were the immovable property, viz., the house at 75-Wood House Road, Sheffield, and other movables.
4. While Dr. Krishnan was away in England, there was a partition in his family, under which a share was allotted to him also. This was taken by his elder brother, Padmanabhan, who managed the same until he died. The properties included in Schedules A and B to the plaint are the properties allotted to Dr. Krishnan in the family partition and there is no dispute now regarding them.
5. The 2nd defendant, as stated already, is the sister of late Padmanabhan, late Dr. Krishnan and the 1st defendant. The 1st plaintiff is the daughter of the 2nd defendant and plaintiffs 2 to 6 are the 1st plaintiff's children. It is not necessary to give details regarding the others on the party array, excepting to mention that additional defendants 22 and 23 are Mr. Cyril Rawlin Arksey, solicitor, and Miss Esme Mary Woodliff, private secretary respectively, of late Dr. Krishnan, who were the administrators of his estate in England appointed by the High Court of Judicature there.
The suit was originally laid for partitioning the properties in Schedules A and B alone, and the suit was instituted within a year of Dr. Krishnan's demise. Subsequently, proceedings were started in England by Mr. Arksey and Miss Woodliff for administering his estate there; and they obtained the order Ex. LVI, from the High Court of judicature in England. The house and the movables were sold and the entire assets were divided between the 1st and 2nd defendants in halves after meeting the expenses of administration. The administrators handed over the amount to defendants 1 and 2 taking a bond of indemnity from them; and the amount is now in deposit within the jurisdiction of the lower Court. After the administration in England was completed, the plaint was amended adding Schedule C and also claiming partition of the assets included therein. The plaintiffs claimed 6 out of 24 shares in the entire estate left by Dr. Krishnan. The and defendant, it may be noted, though originally claimed a half share in Dr. Krishnan's estate, ultimately agreed to partition the estate including the amount in Schedule C under the Ezhava Act among the heirs of Dr. Krishnan.
6. The 1st defendant, however, contended that regarding the assets in Schedule C he was entitled toa half share as granted to him by the High Court of Judicature in England, though he agreed to have the other assets of Dr. Krishnan, viz., the assets in India, both movable and immovable, to be partitioned under the Ezhava Act. The lower Court had disallowed the contentions of the 1st defendant and has directed partition of the assets in Schedule C as well. In appeal the 1st defendant contests the correctness of that decision.
7. According to the lower Court, the decision of the English High Court evidenced by Ex. LVI is not a judgment, because only two out of six prayers made therein were disposed of and no reasons were also given for the conclusions on those two questions. In its view the decisions on those two points are only interlocutory in nature and therefore Ex. LVI is not a final judgment of a foreign Court. The second ground on which the lower Court has rejected Ex. LVI is that it is opposed to natural justice, because the minors were not properly represented in those proceedings. The minors were not represented by their natural guardians, but were represented by the Official Solicitor to the Supreme Court in England as guardian ad litem. The next ground for rejecting Ex. LVI is that it is vitiated by fraud, because the 1st defendant made fraudulent representation to the English High Court that Dr. Krishnan was domiciled in England at the time of his death. According to the lower Court, this representation was false to the knowledge of the 1st defendant; and the High Court of England would not have assumed jurisdiction and administered the estate of Dr. Krishnan, but for this false and fraudulent representation.
8. The main grounds of attack in appeal by the learned Advocate General, on behalf of the appellant, are that the findings of the lower Court regarding Ex. LVI are vitiated, because the administrators, namely defendants 22 and 23, who initiated proceedings in England, were not given notice in this suit; that Ex. LVI is final and conclusive and cannot be avoided for any of the reasons mentioned by the lower Court, and, if at all, it should have been got set aside through the English High Court; that the suit, in so far as it relates to the value of house No. 75-Wood House Road, Sheffield, does not lie in the Court at Trivandrum, and, in any view of the matter, English law, being the lex situs, should apply to that, that being merely the cash value or proceeds of sale of immovable property situate in England; and that Dr. Krishnan was really domiciled in England at the time of his death, so that it is only English law that applies to all his assets.
9. We shall now consider the first question, namely, whether the findings in the suit by the lower Court regarding Ex. LVI are vitiated, since defendants 22 and 23, the administrators appointed by the High Court of England, were not given notice in the suit. The suit as originally instituted did not contain Schedule C. The suit was instituted on 13th October 1951; and defendants 11 to 15 filed C. M. P. No. 3057 of 1952 for impleading defendants 22 and 23. That prayer was allowed; but subsequently, the same defendants filed C.M.P. No. 3353 of 1954 to strike out the 23rd defendant from the party array, because of the difficulty they experienced in serving her. The 1st defendant appears to have then contended that if the 23rd defendant were to be removed from the party array, the 22nd defendant should also be removed. The lower Court, in allowing the prayer for striking out the name of the 23rd defendant, observed that, at any rate, the assets of Dr. Krishnan in England were not sought to be partitioned in the suit. It also appears that the plaint was not served on the 22nd defendant. The learned Advocate General contends that because of this lacuna, the administrators were not given an opportunity to substantiate that Ex. LVI was not vitiated by any infirmities. He proceeds to urge that for that reason the findings of the lower Court against the collusiveness of Ex. LVI are vitiated.
10. We do not think that this contention merits serious consideration. The administrators appointed by the High Court in England are not necessary parties to the suit. In pursuance of the proceeding in England, the administrators sold the assets of Dr. Krishnan and handed over the amount to defendants 1 and 2 taking a bond of indemnity from them. The money has thus come into the hands of defendants 1 and 2 and the same is now in deposit within the jurisdiction of the lower Court. We fail to see how and why defendants 22 and 23 should have been given any opportunity to establish the validity or binding nature of Ex. LVI and how the absence of such notice to them could vitiate the findings regarding Ex. LVI. Defendants and 2 who took the money from the administrators were before the lower Court and the 1st defendant, at whose instance proceedings in England were started, did also contest. Therefore we reject this contention.
11. We shall then take up the last question; Whether Dr. Krishnan was domiciled in England at the time of his death. He belonged to the Travancore State and he left for England in 1920. He was in England for about 30 years and he died there in October 1950. During this period of 30 years he never came to India. As already stated, he did not get regular remittances after the death of his father and it was Miss Hepworth that helped him with money to prosecute and complete his medical education. What appears from the evidence is that he qualified himself in medicine only in or about 1939. The learned Advocate General points out that there were three important occasions on which Dr. Krishnan would have come to India if he really had any idea to come back. Those occasions are the death of his father in 1928, the death of his mother in 1936 and the death of his elder brother, Padmanabhan, in October 1949. The learned Advocate General also points out that Dr. Krishnan did not purchase any residential house in England. These, along with the oral evidence of D. Ws. 3 to 5, the learned Advocate General contends, must establish that Dr. Krishnan chose England as his permanent home and therefore he was domiciled there at the time of his death.
12. There are several letters written by the 1st defendant while he was in England to his relations in India, which disclose that Dr. Krishnan entertained the idea of coming back to India. Exs. VIII, X, I, II, IV and IX are some of those letters. They indicate that Dr. Krishnan was notwilling to leave Miss Hepworth, as it was she who helped him in his difficult days. But they disclose that Dr. Krishnan wanted to come back to India after his insurance policy matured and after he made enough money to lead a comfortable life in India after his return. There are similar letters written by Dr. Krishnan himself; and they are Exs. 1(a), V, VII, VI and III. In these letters also Dr. Krishnan has expressed his intention to come back to India. In fact, in one of the letters written by the 1st defendant, viz., Ex. VIII, he has even stated that Dr. Krishnan's idea was to return after five years and construct a house at Puthenkotta Kunnu. The impression we gather by a perusal of these letters is that Dr. Krishnan wanted to come back to India and that he neverdecided to adopt England as his permanent home.
13. The learned Advocate General explains that these letters written by the 1st defendant were only to console his elder brother, Padmanabhan, and to make him believe that Dr. Krishnan wanted to come back, though the 1st defendant knew for certain that Dr. Krishnan had no such idea. It is also suggested at the bar by the learned Advocate General that the assertion of Dr. Krishnan in his letters that he would come back to India was only to give a threat to his elder brother, Padmanabhan, who was managing the properties obtained by Dr. Krishnan in the family partition and appropriating the income. We are not satisfied that this explanation is sufficient to take away the effect of the expressions of intention made by Dr. Krishnan himself in his letters that he wanted to come back to India.
14. The position in Private International Law is that every person has his domicil of origin and the evidence that is necessary to establish that that domicil of origin is abandoned and a domicil of choice is accepted must be strong (vide page 185 of Cheshire on Private International Law, 6th Edn.). In this case at any rate, the evidence is not sufficient to establish that Dr. Krishnan chose the English domicil and decided to make England his permanent home.
15. It is not quite necessary, according to us, to consider the oral evidence of D. Ws. 3 to 5 on this question, in view of the letters written by Dr. Krishnan himself while he was alive. At any rate, we shall refer in brief to the testimony of these witnesses also. D. W. 3 was in England between 1931 and 1934, while Dr. Krishnan was still pursuing his studies. Dr. Krishnan's expression of intention during that period cannot be of much consequence, because the final decision to return to India or not could arise only after his education was completed.
16. D. W. 4 was in England between 1937 and 1940; and he says that Dr. Krishnan qualified himself in medicine by the end of 1939. He addsthat Dr. Krishnan told him that he had no intention of coming back to India. He adds that Dr. Krishnan did not tell him that he would be permanently staying with Miss Hepworth, but only that he was not coming back to India. This conversation must also have taken place just at the time when Dr. Krishnan completed his studies. Dr. Krishnan's and the 1st defendant's letters of subsequent dates reveal that Dr. Krishnan wanted todraw his insurance amount and also to make sufficient money to provide for a comfortable life after his return. Therefore, the evidence of D. W. 4 is also not of much help.
17. D. W. 5 says that he visited Dr. Krishnan at his residence at Sheffield during the Easter in 1949. He says further that during the conversation Dr. Krishnan told him 'firmly and resolutely' that his intention was to remain permanently in England. The witness adds that Dr. Krishnan expressed this intention with such strong feelings, that there could have been no mistaking about it. As rightly pointed out by the lower Court, even if this expression of intention were true, it should not be given undue importance in the face of the letters we have already referred to. The alleged conversation must have taken place in the presence of Miss Hepworth, who helped Dr. Krishnan in his difficult days: It is only natural that he expressed strongly in favour of adopting England as his permanent home in the presence of Miss Hepworth. Though he had the real and secret intention of returning to India, which was also expressed in his letters to his relations, it was only natural that he expressed a contrary intention ia the presence of Miss Hepworth. Thus, the evidence of D. W. 5, even if it is all true, is not sufficient to dispel the impression conveyed by the letters of Dr. Krishnan and the 1st defendant. Therefore, we agree with the finding of the lower Court on this question, that Dr. Krishnan did not discard his domicil of origin and acquire a domicil of choice.
18. The next question for consideration is how far Ex. LVI is final and conclusive and whether it can be ignored for the reasons given by the lower Court, The lower Court has given four reasons for holding that Ex. LVI is not conclusive: they are (1) that Ex. LVI being a pronouncement made by a foreign Court in an action initiated after the present suit was filed, it cannot operate as res judicata; (2) that it is not a judgment at all; because, only two out of six reliefs claimed in Ex. K, the Originating Summons, are decided leaving the others to be heard in Chambers and even those conclusions are only in the nature of interlocutory orders; and because no reasons are given for even those decisions, as contemplated by the provisions of the Code of Civil Procedure to constitute them a judgment, (3) that the proceedings are opposed to natural justice, because the minors, who are some of the plaintiffs in the present action, were not represented by their natural guardians and were only represented by the Official Solicitor as guardian ad litem; and (4) that it was obtained by fraud.
19. The conclusiveness or otherwise of Ex. LVI has to be decided in the light of Section 13 of the Code of Civil Procedure. Section 13 provides that 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. Then six exceptions are provided; and we are concerned in this case with Exceptions (d) and (e). Those exceptions are that where the proceedings in which the judgment is obtained are opposed to natural justice and where the judgment has been obtained by fraud, it shall not be conclusive.
20. Some of the reasons given by the learnedSubordinate Judge are obviously untenable, forexample, the first ground. The rule of res judicata applies to all adjudications in a former suit,which term denotes a suit decided prior to thesuit in question whether or not it was institutedprior thereto. This has been the law in India aspointed out by the Supreme Court in Viswanathanv. Ruka-ul-Mulk Syed Abdul Wajid, AIR 1963 SC1. The second ground given by the learned Subordinate Judge is also not correct; namely, thatEx. LVI is not a judgment, because no reasonsare given for the conclusions and because all thereliefs claimed are not considered. TheSupreme Court decision already referred to makesthe position clear that what is conclusive underSection 13 is the judgment, i.e., the final adjudicationand not the reasons (vide also Brijlal v. Govindram,AIR 1947 PC 192). It cannot, therefore, be saidthat because no reasons are given in Ex. LVI,it is not a judgment. Similarly, the other reasongiven by the learned Subordinate Judge, that onlytwo out of six questions raised are answered andnot the others, does not also affect the conclusiveness of those conclusions if they are otherwise conclusive.
21. The six questions raised or reliefs claimed in Ex. K may be noted at this stage: they are (1) that it may be determined whether Dr. Krishnan died domiciled in England or in Travancore; (2) that it be decided whether the plaintiffs therein should appear and take part in this suit commenced in the Court at Trivandrum; (3) that it be determined as to who the legal heirs of Dr. Krishnan and what their shares are; (4) that directions may be given regarding service of proceedings; (5) that administration of the estate of Dr. Krishnan be ordered; and (6) that costs may also be granted. Of those six reliefs claimed only the first and the last were decided in Ex. LVI. It was declared that Dr. Krishnan was domiciled in England at the time of his death; and costs were also allowed. Regarding the other reliefs the Originating Summons was adjourned to be heard in Chambers. So far as the first question relating to the domicil of Dr. Krishnan is concerned, there was a decision of the English High Court and it cannot be said that that decision is not a judgment; and to that extent the reasoning of the learned Subordinate Judge is not right.
22. The next ground in the reasoning of the learned Judge is that the proceedings in which Ex. LVI was obtained are opposed to natural justice, because the natural guardians of the minors were not appointed their guardians ad litem. Admittedly, the Official Solicitor represented the minors as guardian ad litem. It is also not disputed that the said minors have their natural guardians alive. No attempt appears to have been made to appoint those legal guardians as guardians ad litem in the proceedings commenced by Ex K. But the learned Advocate General draws our attention to the decision in Pemberton v. Hughes, 1899-1 Ch 781, where it is observed that a judgment or decree pronounced by a Court of a foreign country will be treated and acted upon as final in England, notwithstanding any irregularity of procedure underthe local law, provided the foreign Court bad jurisdiction over the subject-matter and over the persons brought before it, and the proceedings do not offend against English views of substantial justice. Basing on this decision he contends that the failure to appoint the legal guardians of the minors as guardians ad items was only an irregularity in procedure; and for that reason it should not be held that Ex. LVI is not conclusive. If the defect is merely an irregularity in procedure, there may be some force in this contention. But, in this case the proceedings under Ex. K. were commenced in England by Mr. Arksey and Miss Woodliff at the instance of the 1st defendant and he was fully aware of the existence of the natural and legal guardians of the minors. It is not pretended that the Official Solicitor was appointed guardian only on the refusal of the natural guardians; which can only mean that that fact was suppressed by the 1st defendant. This will become more patent when we consider the question of fraud. We are inclined to think that the failure to appoint the natural guardians of the minors as guardians ad litem is not a mere irregularity in procedure.
23. The next ground appears to be more formidable; namely, that Ex. LVI has been obtained by fraud. We have now to consider as to what is the meaning of 'faud' in this connection. 'Fraud is an extrinsic, collateral act; which vitiates the most solemn proceedings of Courts of Justice'; says Grey C. J. in the Duchess of Kingston's Case, 1776-2 SLC 644. Extracting this Cheshire observes at page 668: 'The essential distinction, therefore, is between mistake and trickery.' The learned author then considers the relevant decisions on the question. So far as this case is concerned, if the plaintiffs succeed in establishing that the English Court 'was imposed upon' or tricked, as a result of which the order in Ex. LVI came to be passed then it is not conclusive. What Section 13(e) of the Code says is that where the foreign judgment has been 'obtained by fraud', it will not be conclusive; and 'fraud' in this sub-section must have naturally the same meaning,
24. The learned Advocate General contends that until and unless Ex. LVI is got set aside by the English court, the plaintiffs in the present action cannot ignore the decision on the question of Dr. Krishnan's domicil. He draws our attention to a passage at page 153 of Halsbury's Laws of England, 3rd Edn., Vol. 7, to the effect that in order to avail himself of the plea of fraud in a foreign judgment, the party alleging it in England must first obtain a reversal of the foreign judgment, which is conclusively good until reversed. We do not think it is necessary for us to consider whether this position is correct; because Section 13 of the Procedure Code, which admittedly applies to the present case, does not lay down any such proposition, that the foreign judgment has to be set aside by the foreign court itself. The provision only enacts that a foreign judgment, if it has been obtained by fraud, is not conclusive. Therefore, we do not accept this contention.
25. The next attack is that 'where two parties fight at arm's length, it is the duty of each to question the allegations made by the other and adduce all available evidence regarding thetruth or falsehood of it : neither of them can neglect his duty and afterwards claim to show that the allegation of his opponent was false'. In support of this the Advocate General cites some decisions as well of Indian Courts e. g., Kadirvela Nainar v. Kuppuswami Naiker ILR 41 Mad 743 : (AIR 1919 Mad 1044) (FB). He developes his contention further and argues that a judgment in a previous suit cannot be avoided on the ground that it was obtained by perjured evidence. Applying the contention to the present case, it means that the conclusion of the English High Court in Ex. LVI that Dr. Krishnan was domiciled in England at the time of his death could, at the most, be said to be the result of perjured evidence given by witnesses against real facts regarding the intention of Dr. Krishnan and therefore, that conclusion should not be held to be not conclusive under Section 13(e) of the Code. We are not impressed. We have already indicated that the 1st defendant knew that Dr. Krishnan had no intention of making England his permanent home and that his idea was to return to his domicil of origin, namely Travancore. It was with this knowledge that the 1st defendant instructed Mr. Arksey and Miss Woodliff to start proceedings in England by way of Originating Summons under Ex. K and that, several months after the institution of this suit in the court at Trivandrum, in which also there was an issue relating to the domicil of Dr. Krishnan.
Ex. H, a letter by Mr. Arksey to the husband of the 1st plaintiff and the father of the other plaintiffs shows that be understood from the 1st defendant that the latter was advised that, according to the new Constitution of India, Dr. Krishnan would definitely be domiciled an Englishman and that the 1st defendant and his sister, the 2nd defendant, would be the only persons entitled to his estate in accordance with the law of England. He also refers to the advice given by Messrs. King and Partridge of Madras So that effect. Mr. Arksey states further that the grant of administration was obtained in good faith on the assumption that the deceased was believed to be domiciled in England at the time of his death; but as that assumption was not accepted by some of Dr. Krishnan's relatives, the administrators had two courses open to them, namely, either to obtain a ruling from a competent court as to the domicil of Dr. Krishnan or to administer the estate by agreement among all the possible beneficiaries. This indicates how and in what spirit Ex. LVI was obtained from the English court; that is, it was assumed that Dr. Krishnan had English domicil, though the 1st defendant was aware that it was not so.
26. Moreover, Ex. LVI was obtained under Order XI of the Supreme Court Rules, the relevant rule providing for service out of jurisdiction of a writ of sumomns or notice of a writ of summons in an action for the administration of the personal estate of a deceased person, who, at the time, of his death, was domiciled within the jurisdiction of the English High Court. This again shows that the proceedings were taken on the basis of the English domicil of Dr. Krishnan at the time of his death, all the defendants in Ex. K being outside jurisdiction. In such a case pf 'assumed jurisdiction' to summon defendants from outsidejurisdiction, a full and fair disclosure of all material facts is expected by the English court. It is evident from the facts stated already that the 1st defendant, at any rate, did not fully apprise Mr. Arksey and Miss Woodliff of the real facts regarding the intention of Dr. Krishnan, which affected his domicil at the time of his death; and this nondisclosure of all material facts was a 'trickery or an imposition' on the English court and this led to the issue of the summons to parties outside jurisdiction.
As we have already indicated, even the conclusion regarding the domicil of Dr. Krishnan appears to have been more than an assumption than an adjudication, though some affidavits, including an affidavit of the 1st defendant, appear to have been filed in the proceedings. This view of ours will only be reinforced when we point out that the assets collected by the administrator were banded over to defendants 1 and 2 only on taking an indemnity bond (vide Ex. LVII). It is again noteworthy that one of the questions, whether the administrators should get themselves impleaded in this suit, was also left to be decided in Chambers; and it does not appear that anything was done in Chambers subsequently. In any view of the matter, we are inclined to agree with the learned Subordinate Judge that the 1st defendant, in spite of his knowledge that Dr. Krishnan had no idea to settle down in England permanently, made the administrators believe and thereby impose upon the English court that Dr. Krishnan had an English domicil at the time of his death, as a remit of which the decision under Ex. LVI was obtained. We are therefore of opinion that Ex. LVI is not conclusive.
27. We may, in passing, refer to the learned Advocate General's contention that fraud is not definitely and specifically pleaded in this case and for that reason fraud shoud not be considered as a ground. The proceedings in England were started only several months after this suit was instituted. At the stage of filing the plaint there was thus no fraud to be pleaded. In the replication filed after the order in Ex. LVI was passed, there are allegations of fraud in the sense that the English court was imposed upon; and we think they are sufficient, in the circumstances of the case.
28. Lastly, we shall consider the contention of the learned Advocate General that even if Dr. Krishnan did not abandon his domicil of origin and acquire a domicil of choice, even then the sale proceeds of house No. 75-Wood House Road. Sheffield should be divided according to the English law, the lex situs. In other words, the contention is that succession to immovable property is to be governed by the law of the land where the immovable property is situate and the position will be the same even if the property is converted into money.
29. In support of this proposition, the learned Advocate General invites our attention to Dicey on Conflict of Laws, 7th Edn Ch. 18, page 512. Rule 85 of Dicey says that all lights 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). At page 520 Dicey again says that succession to immovables situated abroad, or ofmoney representing such immovables, is determined by whatever system of law the lex situs would apply. The learned author says further that the lex situs determines, among other things, who is entitled to succeed to the immovables. To the same effect is the passage appearing in Cheshire, 6th Edn., at page 603. Cheshire says that where the owner of immovables dies intestate, the order of descent or distribution prescribed by the lex situs is applied by the English court, no matter what his domicil may have been.
In Halsbury's Laws of England, 3rd Edn., Vol. 7, at page 27, it is stated that freehold interests, interests analogous to freehold, and chattel interests in land must always in the nature of things be immovables. It is also stated that where freeholds are subject to a trust for sale but remain unsold an interest in the proceeds of sale is an immovable, and the intestate succession thereto is governed by the lex loci rei sitae. Again at page 29 it is stated that where a foreign immovable is sold, the rights of persons interested in the proceeds of saltdo not cease to be governed by the law of the place where the immovable was situated merely because the proceeds of sale have been brought within the jurisdiction in specie. The passage proceeds that if land in a foreign country devolves as personal estate by the local law, the proceeds of a sale made by the local administrator are received as personal estate by the administrator in the country where the deceased owner was domiciled. On this qusetion, however, we have the pronouncementof our Supreme Court in Viswanathan's case, already referred to (AIR 1963 SC 1). Their Lordships of the Supreme Court observe in paragraph 36:
'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 domicil.....'.
Therefore, it is clear that the domestic law of England must apply to house No. 75-Wood House Road, if that property is considered by English Law to be immovable.
30. In domestic English law the division of properties is as real and personal and not as immovable and movable. But in the sphere of Private International Law the Anglo-Saxon distinction between realty and personalty is abandoned and the division into immovable and movable is accepted. Thus the division as personalty and realty cuts across the division as movable and immovable, in the sense that personalty includes both movables and immovables. Realty is not synonymous either with land or with immovables (vide Cheshire, Ch. XIV, page 461 and Dicey, page 496).
31. The question whether a particular property is movable or immovable has to be decidedunder the law of the place where the property issituated. Therefore, if according to the law ofEngland this property, namely the house, is considered, for the purpose of Private InternationalLaw, to be immovable, then it goes without sayingthat the English law of succession must apply tothis property. If on the other hand, under thelaw of England the property is considered, for thepurpose of Private International Law, to be movable, then the lex domicili of the deceased mustapply.
32. Mr. P. K. Kurien, the learned advocate of some of the contesting respondents, has drawn our attention to the Administration of Estates Act, 1925 (English Act). Under Section 33 of the said Act the real or personal estate of a person dying intestate shall be held by his personal representatives and the real estate is to be held upon trust to sell the same. Under Section 46 (v) of the same Act the mode of succession which will apply to a case like the present is also indicated. Mr. Kurien then draws our attention to the English equitable doctrine of conversion, He invites our attention to Snail's Principles of Equity, 25th Edn., Ch. VI. The principle is enunciated as 'that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given; whether by will, by way of contract, marriage articles, settlement, or otherwise, and whether the money is actually deposited, or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed'. From these premises Mr. Kurien argues that in the present case, on the death of Dr. Krishnan, his estate came to be held on trust for sale and thus became personal estate and therefore, to such personal estate it is the lex domicilii that applied and not the lex situs.
33. What we have to consider first is whether the house in England left by Dr. Krishnan was movable, or immovable property for the purpose of Conflict of Laws. Dicey says on page 499 that interests in land in England held on trust for sale, but not yet sold, are interests in an immovable, though under the equitable doctrine of conversion they are treated as personal estate by English domestic law. In the light of this, is the house a movable or an immovable? At the time of Dr. Krishnan's death the house was an immovable and the right he had in the house was also an Immovable. It was that right that he left at his death; and on his death it came to be held by his personal representatives as estate held on trust for sale. Firstly, the house left by Dr. Krishnan was not personalty at the time of his death and it was an immovable. It was not an interest in land held by him on trust for sale. It might be that the land was held, on the death of Dr. Krishnan, by his personal representatives on trust for sale and by the subsequent sale thereof it was converted into cash also; but that does not make the estate in the shape of the house left by Dr. Krishnan personal estate; nor will it make land or immovable left by Dr. Krishnan moveable.
34. This position will be clear if reference is made to the case in Re, Berchtold, 1923-1 Ch 192. In that case a domiciled Hungarian died intestate having been entitled to an interest in English freehold subject to a trust for sale but not yet sold. On the basis of the English doctrine of conversion it was argued by his next of kin by Hungarian law that they were entitled to the interest. The English Court rejected this plea and held that the interest left by the deceased was an immovable' and therefore, the next of kin by English law were entitled to it. Russell, J. observed in that case that what the doctrine of conversion said was that real estate had to be treated as personal estate or personalestate as real estate; and not that immovables were turned into movables or movables into immovables. According to the English law the interest left by the deceased in that case, for the purpose of Conflict of Laws, was an interest in an immovable and since the land, though held on trust for sale, was not sold at the time of the death, it was immovable for the purpose of Conflict of Laws and the English law applied to the cast.
35. According to us, the principle that should apply to the house left by Dr. Krishnan in England in the present case is the same. On the finding that Dr. Krishnan had not lost his domicil of origin, his immovable properties in India and all his movables, whether in India or England, should be divided according to the law of succession in India. And succession to the house in England, being immovable property according to the law of the situs as applied to Conflict of Laws, should be decided under the English law of succession. The subsequent conversion of that immovable into money does not also alter this position. Hence, we are of opinion that the lower Court was in error in treating the sale proceeds of the house as movable property and applying the law of succession applicable to Ezhavas in Travancore.
36. As a result of the foregoing discussion, we dismiss the appeal excepting regarding a half of the net proceeds of sale of house No. 75-Wood House Road. Regarding this half we allow the appeal; and the appellant 1st defendant will get this half for himself and the other half will be divided among all the other sharers, because the 2nd defendant has already agreed to such a course, and the plaintiffs will get their share from out of it. Regarding the other assets of Dr. Krishnan in Schedule C the decision of the lower Court is confirmed. In the circumstances of the case, all parties will suffer their respective costs before us. The direction regarding costs of the lower Court given by the learned Subordinate Judge will, however, stand.