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Venkatalutchmi Ammal Vs. Srirungapatnam Srinivasamurthy - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtChennai
Decided On
Reported in(1901)11MLJ91
AppellantVenkatalutchmi Ammal
RespondentSrirungapatnam Srinivasamurthy
Cases ReferredRam Ravji Jambhekar v. Pralhaddas Subkran I.L.R.
Excerpt:
- - england of coordinate jurisdiction with reference to the words 'cause of action' as used in the earlier county courts act and the common law-procedure act, 1852. the law, however, at any rate as regards actions founded on contract, is now well settled. , said (page 51) the first question raised is as to the meaning of 'the cause of action''in section 6, sub-section (1), of the salford hundred court of record act, 1868. in my opinion it is now well settled by authority that in the case of a court whose jurisdiction is limited to a certain area an expression of this kind means that all the matters which go to make up the cause of action must have arisen within that area ;and the plaintiff's counsel was wrong in suggesting that where the late master of the rolls said in jackson v......arnold white, j. 1. this is an appeal against a judgment of shephard, j., dismissing as against all the defendants the plaintiff's suit. the defendants were sued as the executors with the probate of the will of one srirungapatnam venkatavarada aiyangar. the plaintiff is the daughter, and the 1st defendant is the only son of the testator. the will contains the following provisions: (10) moreover as soon as this will shall come into force, out of 'the sum forming four-fifths part of the amount which may be derived from the policies insured in my own name and assigned for convenience in favour of my son and which are in force, government' of india promissory notes shall be purchased and kept for and on 'account of my daughter sowbhagiavathi venkata lutchmammal 'and the interest derived.....
Judgment:

Arnold White, J.

1. This is an appeal against a judgment of Shephard, J., dismissing as against all the defendants the plaintiff's suit. The defendants were sued as the executors with the probate of the will of one Srirungapatnam Venkatavarada Aiyangar. The plaintiff is the daughter, and the 1st defendant is the only son of the testator. The will contains the following provisions:

(10) Moreover as soon as this will shall come into force, out of 'the sum forming four-fifths part of the amount which may be derived from the policies insured in my own name and assigned for convenience in favour of my son and which are in force, Government' of India promissory notes shall be purchased and kept for and on 'account of my daughter Sowbhagiavathi Venkata Lutchmammal 'and the interest derived therefrom shall be paid to the aforesaid 'Venkata Lutchmammal for her life and thereafter the whole of the 'amount of the aforesaid promissory notes shall go to her children 'equally without distinction of male or female, but in case any of her 'children shall not have then attained fully the age of twenty-one' years, their shares shall be withheld and interest thereof shall be 'paid to them for their education and other benefits and to such' of them as shall have attained the age of twenty-one years shall 'be paid their respective shares as soon as they complete twenty 'one years.'

* * * * * (12) Moreover as soon as this will shall come into force 'Government of India promissory notes for the remaining one-fifth' of the insurance policy amount shall be separately purchased and 'kept, and the interest thereof shall be paid to my wife as long as' she may live and thereafter the aforesaid interest and the principal (i.e.,) promissory notes shall go to my daughter Venkata 'Lutchiammal and her children according to the conditions mentioned in para. 10 of this will. If on her death there be no 'children of hers in existence, the whole of these promissory notes' shall go to my son and after his death to his heirs. Only so ; none ' else have any right whatever thereto.

2. The testator died on August 24, 1892. On December 24, 1892 executors took out probate of the will in the Court of the District Judge, Civil and Military Station, Bangalore, the approximate value of the assets in respect of which probate was granted being stated to be Rs. 6,500.' On May 5, 1893, the executors took out probate limited to the Presidency of Madras in the High Court of Judicature at Madras. The petition upon which the Madras probate was granted stated that there was property of the testator to be administered in the Presidency of Madras of the value of Rs. 1,00,000. The control and management of the estate was left by the other executors in the hands of the 1st defendant. On May 5, 1894, the 1st defendant filed in this Court, in the matter of the last will and testament of the testator, an inventory showing assets realized in this Presidency between May 1893 and May 1894 to the amount of Rs. 65,000 odd. On the same date he filed an affidavit in this Court in which he stated 'I have collected the 'several sums amounting nearly to Rupees fifty thousand payable' by the insurance companies on the life of my late father to me 'as the duly registered assignee from the insured (testator) and for' the present with the consent of the testator's only daughter and 'wife, that is, my sister and mother who are the present beneficiaries. I have invested the whole sum of rupees fifty thousand or' thereabouts in securities other than the Government of India 'promissory notes and have been paying them respectively the interest at 6 per cent, out of their respective legacies of Rs. 40,000' and Rs. 10,000 as devised by paragraphs 10 and 12 of the said 'will. This arrangement 1 have made temporarily as all the executors have not yet met and discussed over the matter, and I hope' that this matter too will be settled in a manner consistent with 'the directions of the testator before July next.'

3. The policies referred to in Clause 10 of the will as policies in the name of the testator assigned for convenience to his son (the 1st defendant) were a policy in the North British and Mercantile Insurance Company, Calcutta, for Rs. 20,000 and two policies on the Oriental Government Security Life Assurance Company, Bombay, for Rs. 20,000 and Rs. 10,000 respectively. As regards the Calcutta policy the executors on May 30, 1893, gave a written authority to the company to pay the policy moneys to the 1st defendant and take his receipt as a discharge. On June 19, 1893, the 1st defendant writing from Bangalore forwarded to the agents of the company in Madras the policy stamped and signed by the executors. In his letter he stated that the amount of the policy did not fall within the probate as it had been assigned to him and that he could have sued the company if they had refused to pay the amount to him. On July 3, 1893, a cheque in favour of the executors for Rs. 23,510 was forwarded by the company through their agents in Madras to the 1st defendant at Bangalore,

This sum plus a further sum of Rs. 3,500 (Rs. 27,000 in all) appears to have been advanced by the 1st defendant to one K. Shamiengar on September 6, 1893, the 1st defendant taking by way of security a mortgage on lands in Mysore. As regards the bombay policies the policy 'moneys (Rs. 30,000) were paid over to the 1st defendant, apparently in his capacity as assignee of the policies, by cheques sent direct from be embay to the 1st defendant at Bangalore in November 1892 and receipts for the moneys were signed by the 1st defendant at Bangalore on November 13, 1892. It would seem that out of this Rs. 30,000, Rs. 28,000 was advanced to certain parties at Bangalore on the security of mortgages in Mysore.

4. Up to January 1897, the 1st defendant made payments of income to the plaintiff.

5. On January 19, 1897, the plaintiff, who was then residing in Madras, wrote to the 1st defendant as follows:

Castle Kernan, Triplicane,

19/1/97.

MY DEAR SHAMANNA.

I got your letter with the cheque for Rs. 453-14-7. I have 'already written to you that 1 won't accept interest at any loss rate 'than 6 per cent, till the trust money is invested in Government' paper in the name of all the executors. Please send the balance 'Its. 346-1-5) at once, then I will send you the receipt for the full' amount Rs. 800, the interest for lour months ending December' 1896.

Yours affectionately,

(Signed) AMMAYYA.

On January 30, 1897, the 1st defendant writing from Bangalore replied to this letter as follows:

Registered for acknowledgment.

145, Sultanpeta, Bangalore City,

50th January 1897.

MY DEAR AMMAYYA,

In reply to yours of the 27th instant 1 beg to state that you 'as legatee are only entitled to receive the interest given by the' Government, when the amount is invested in the Government stock' as directed in the will. It is immaterial to you in whose name the 'paper stands. I decline to send you the extra amount asked for' on account of interest at 6 per cent.I need not say anything' more at present except that the law is not in favour of your 'contention.'

Yours affectionately,

(Signed) S. SHAHANNA.

6. On August 18, 1898, the 1st defendant through his legal adviser sent an intimation to the plaintiff's legal adviser to the effect that the 1st defendant was in possession and enjoyment of his ancestral estate in his own right under the Hindu law and that the will of the 1st defendant's father being invalid the 1st defendant had no intention of conforming to his father's directions. On September 15, 1898, the 1st defendant filed an affidavit in this Court in the matter of the last will and testament of the testator and in the matter of an application made by two of the executors (defendants 3 and 4) to compel the 1st to file an account of the administration of the estate, in which he stated that his late father had no disposing power over any of the property mentioned in the will and that the will executed by him was invalid and inoperative under the Hindu law. At the same time he filed an inventory showing assets realized in this Presidency since May 1894 to the amount of Rs. 66,000 odd.

7. The plaintiff in her suit asked for judgment as against all the defendants that the trusts of the will in respect of the legacies provided for in Clauses 10 and 12 should be carried into effect, and that if the Court should deem it necessary or expedient the whole estate of the testator should be administered, that the proceeds of the policies should be paid into Court and the income of 4/5 thereof be ordered to be paid or the plaintiff for life and that the right of the plaintiff to receive the rest of the income thereof after the lifetime of her mother should be declared, that an account should be taken of the income derived or which, but for the negligence of the defendants, might have been derived from the proceeds of the policies and that the said defendants be ordered to pay 4/5 thereof to the plaintiff.

8. In the plaint defendants 1, 2 and 4 are described as residing at Mylapore (a place within the area over which this Court exercises jurisdiction). The 3rd defendant is described as residing in Bangalore City. The learned Judge dismissed the suit as against the 1st and 3rd defendants on the ground that this Court had no jurisdiction to try it and as against the 2nd and 4th defendants on the ground that it would be useless to make an administration decree as against them since it was clear on the evidence that all the trust property was in the hands of the 1st defendant.

9. In my judgment as regards the 1st defendant the learned Judge was right. Article 12 of the Letters Patent is in these terms:

And we do further ordain that the said High Court of Judicature at Madras, in the exercise of its ordinary original civil 'jurisdiction, shall be empowered to receive, try and determine suits 'of every description, if, in the case of suits for land or other immoveable property, such land or property shall be situated or in 'all other cases if the cause of action shall have arisen either 'wholly, or in case the leave of the Court shall have been first 'obtained, in part, within the local limits of the ordinary original '' jurisdiction of the said High Court or if the defendant at the time 'of the commencement of the suit shall dwell or carry on business' or personally work for gain within such limits.

10. It is clear from the evidence that the 1st defendant did not at the time the suit was instituted' dwell or carry on business or personally work for gain' within the local limits of ordinary original jurisdiction of this Court. Leave to institute the suit was not obtained. Consequently the only question to be considered is--did the cause of action arise wholly in Madras. In my judgment it did not. Sir Bhashyam Iyengar on behalf of the respondent contended (hat no part of the cause of action arose in Madras. However this may be , under the express words of Article 12 this Court has no jurisdiction unless the cause of action arose wholly in Madras. The testator lived for the greater part of his life in Mysore, and died there; the trust was created in Mysore, the bulk of his estate was in Mysore, the will was made in Mysore; the legatees resided in Mysore at the time of the testator's death, and, with the exception of the plaintiff and her mother, resided in Mysore at the time the suit was instituted. When probate was granted by this court there were no doubt assets within the jurisdiction of this court,, but the bombay and Calcutta policy moneys were outside the jurisdiction and were not included in the Madras probate. The proceeds of the bombay policies were never dealt with by the 1st defendant in Madras and were invested on mortgage in Mysore. The fact that the cheque for the Calcutta policy was sent to the 1st defendant through the Company's agents in Madras, instead of --as in the case of the bombay policies--direct to the 1st defendant at Bangalore is, in my opinion, immaterial. Whether the cause of action be the right ex debito justitia to have the estate administered by the Court, or whether the cause of action arose on the formal repudiation by the 1st defendant of a trust which he had acknowledged and acted under, or on his committing a breach of trust in investing the proceeds of the policies in mortgage securities instead of in Government of India promissory notes as directed by the will--in any one of these views it seems to me that it cannot be said that the cause of action arose wholly in Madras. If the cause of action be a right ex debito justitia to have the estate administered and the trusts of the will enforced, the facts that the 1st defendant took out a limited grant of probate in this Court and acknowledged and acted under the trusts created by the will within the local limits of the jurisdiction of this Court do not in themselves in my judgment confer jurisdiction upon this Court to entertain a suit for the administration or the partial administration of the testator's estate. If the cause of action be the repudiation of the will, the first formal repudiation would seem to have taken place in Bangalore in August 1898 though this was no doubt followed up by the affidavit of September 1898 affirmed at Bangalore but filed in this Court to which reference Las already been made. Assuming that the fact of the repudiation of the will in Madras was a breach of the obligation in Madras which gave rise to a cause of action, it may be said that there was also a breach in Mysore, since it cannot be contended that the trust created by the will in favour of the plaintiff required that it should be carried out in Madras and-not elsewhere. It seems doubtful whether, for the purpose of dealing with the question of jurisdiction even the breach of the obligation can he said to have arisen 'wholly' in Madras.

11. If the cause of action be the breach of trust in failing to invest the proceeds of the policies in Government of India promissory notes, it is difficult to see how the breach can be said to have been committed within the focal limits of the jurisdiction of this Court. The accident that the plaintiff happened to be residing in. Madras at a time when under the trust created by the will monies were payable to her by the executors cannot be said to give rise to a cause of action in Madras. The general proposition relied on by the learned Counsel for the appellant, that a suit cannot be brought against any executor or administrator, in his official capacity in the Court of any country but that from which he derives his authority to act by virtue of the probate or letters of administration there granted to him (Williams on Executors, Edition 9, Vol. II, p. 1872), does not apply to the facts of this case. The probate had nothing to do with the vesting of the property in the trustees. The trusts were created by the will. The executors as trustees under the will might have been sued if no grant of probate had been taken out, and if at the time of the institution of the suit the 1st and 3rd defendants had dwelt or carried on business or personally worked for gain within the local limits of the ordinary original jurisdiction of this Court, they could have been sued in this Court. The interest of the executors in the estate is derived exclusively from the will and vested in them from the moment of the testator's death. Moreover, the Madras probate does not purport to give the executors any authority to act except for the purpose of realizing assets in Madras. The case of Ewing v. Orr Ewing, 9 Appeal Cases 34, which was relied on by the appellant's Counsel, affords us no assistance as to what is the 'cause of the action' in the present case. Moreover, in that case leave had been obtained under Order XI of the Rules of the 8C to serve the three Scotch trustees in Scotland. be the Lord Selborne and Lord Blackburn lay stress upon the fact that the three Scotch trustees had been served under an order which they did not seek to discharge.

12. Lord Blackburn observes: 'An application might have been made to set aside that service and then the Court would have had to exercise a discretion as to whether that service should be set aside.'

13. The administration suit cannot be regarded as a continuation or extension of the probate proceedings. As Lord Selborne observed in the Orr Ewing's case: 'The Court which grants probate is not a court of administration though (where there are no executors nominated by the will) it may appoint administrators. Nor are the executors (in any sense exclusive of the jurisdiction of any other forum, in a case in which it might otherwise attach) officers of that Court'. In Nistarini Dassi v. Nundo Lal I.L.R. 26 C. 891, which was also relied upon on behalf of the appellant, no question arose as to the jurisdiction of the Court to entertain the administration suit. The only question was whether, the Court having jurisdiction to entertain the suit, it could set aside certain leases of land out of the jurisdiction which the executors had granted to themselves. Mr. Justice Stanley held that it was competent for Court to set aside these leases. He puts it thus:

If the trustees had assigned some of the properties to a stranger and recovery of the property from such stranger had been sought in the action, a question of jurisdiction might arise; but here it is the executors in whom the property was vested by the will of the deceased who are alone sought to be made responsible for an alleged act of may administration, namely, the granting of leases of part of the trust estate to themselves.' This decision has really no bearing on the point we have to consider, namely, whether, in the present case, the cause of action arose wholly within the local limits of the ordinary original jurisdiction of this Court. The English decisions on similar words as used in the County Courts Acts, the Mayor's Court Act, and the Common Law Procedure Act, 1852, are to some extent a guide as to the construction to be placed upon the words used in Article 12 of the Letters Patent. As Sir Adam Bittleston observes in his judgment in De Souzu v. Coles 3 M.H.C. 884 in the course of which he reviews at length all the English decisions under the County Courts Act of 1846--' When words of such familiar use in the English law are adopted in an English legal instrument such as the Letters Patent... it is, 1 think, reasonable to suppose that they have been used in the sense which has been assigned to them by the decisions of the English court's ; and as it seems to me we ought to be guided in an interpretation of them by those decisions. In Mulchand Joharimal v. Suganchand Shivdas I.L.R. 1 B. 23 the bombay High Court adopts this view.

14. Under the Consolidating County Courts Act (51 and 52 Viet. C. 43, S., 74) as has been the case since 1867 a county court may by leave entertain any action if the cause of action arose within its district either 'wholly or in part.' But under the County Courts Act of 1846 (see Section 60) a county court had no jurisdiction if 'a part of the cause of action' arose outside the local area of its jurisdiction. If a part of a cause of action arises outside a given district/or area, it is obvious that the whole of the cause of action cannot have arisen within that district or area. The decisions under the Act of 1846 are therefore in point. The same observation applies to the decisions as to the jurisdiction of the Mayor's Court which has no jurisdiction when, any material] part of the cause of action arises out of its jurisdiction, [see bowlor v. Barberion Development Syndicate (1897) 1 Q.B. 164 and to decisions under Section 18 of the Common Law Procedure Act, 1852 (15 and 16 Viet. Ch. 76). The decisions under the County Courts Acts as pointed out fey the bombay High Court in Balaji Baikaji Pinge v. Gopal bin Raghu Kuli 3 B. 23, are more in point with regard to the interpretation of the Letters Patent than the decisions under the Common Law Procedure Acts. The provisions of the Common Law Procedure Acts deal with procedure and not with jurisdiction, i.e., they furnish a convenient means of exercising an existing jurisdiction ; they are not intended, as the pro visions of the County Courts Acts and the Letters Patent, to create and delimit a local jurisdiction. It may be observed that Section 75 of the County Courts Act, 1888, expressly provides that proceedings for the administration of the assets of a deceased person shall be taken in the Court within the district of which the deceased person had his last place of abode in England, or in which the executors or administrators or any one of them shall have their or his place of abode. There is no corresponding or analogous provision in the Letters Patent, and. the question of jurisdiction has to be determined solely with reference to the question where the cause of action wholly arises. For a long time there was no doubt considerable conflict of authority between courts in. England of coordinate jurisdiction with reference to the words 'cause of action' as used in the earlier County Courts Act and the Common Law-Procedure Act, 1852. The law, however, at any rate as regards actions founded on contract, is now well settled. The most recent English decision with reference to a cause of action arising within specified local limits is the decision of the court of appeal in Payne, v. Hogg (1900) 2 Q.B 43. By the Salford Hundred Court of Record Act, 1168, jurisdiction is given, to the Hundred Court 'if the cause of action arose within'' a specified area. With reference to these words A.L. Smith, L.J., said (page 51) the first question raised is as to the meaning of 'the cause of action'' in Section 6, Sub-section (1), of the Salford Hundred Court of Record Act, 1868. In my opinion it is now well settled by authority that in the case of a court whose jurisdiction is limited to a certain area an expression of this kind means that all the matters which go to make up the cause of action must have arisen within that area ; and the plaintiff's Counsel was wrong in suggesting that where the late Master of the Rolls said in Jackson v. Spithall L.R. 5 C.P. 542 to the effect that 'cause of action' meant the act which gave the plaintiff his cause of complaint applied in the case of such a court. Collins, L.J., said 'with regard to the first question raised, namely, as to the moaning of the cause of action' in Section 6 of the Salford Hundred Court of Record Act, 1868, 1 think it clear that it means the whole cause of action as explained in Cook v. Gill L.R. 8 C. P. 107 and not ' cause of action' as defined in Jackson v. Spithall, which latter case turned upon a special reading of the language of the Common Law Procedure Act, 1852, which uses the expression ' a cause of action' and not 'the cause of action,' the expression used in the Act we are construing'. Romer, L.J., agreed with the other members of the Court as to the meaning of the words 'cause of action'' in the Act in question.

15. Aritcle 12 of the Letters Patent itself draws a distinction between cases where the cause of action arises wholly, and cases where it arises in part within the local limits. As Mr. Justice Holloway points out in his judgment in DeSowza v. Coles, the phrase 'whole cause of action' has never been used except by the Judges, but 1 fail to see how any distinction can be drawn between the phrase 'if the cause of action arises wholly' within a given area and the phrase if the whole cause of action arises within that area. I cannot see how the decision in Jackson v. Spithall, which turned on the construction of the words 'a cause of action', is in any way a conclusive authority upon the question of the construction of the words 'if the cause of action shall have arisen... wholly... within, &c.;' It seems to me that in the present case the title of the plaintiff and the obligation of the defendants were be the matters which arose outside the area of the jurisdiction of this Court, and that, consequently, this Court had not jurisdiction to entertain the suit.

16. With regard to the case of Luckmichand v. Taravarmull 8 Moore 291, which was relied upon by the appellant, and which Mr. Justice. Hollo way in his judgment in DeSouza v. Coles treated as the governing authority in this class of cases in preference to the decisions of the English Common Law Courts, I entirely agree with the view expressed by Mr. Justice Greene in the case reported in I.B. p. 23. With reference to the Privy Council decision and to Mr. Justice Holloway's comments thereon, the learned Judge observes:

Mr. Justice Holloway in his judgment in De Souza v. Coles 3 M.H.C. Rep. 413, lays it down that this decision involves' implicitly the following propositions:

(1). The making of the contract is a matter perfectly indifferent and is no part of the cause of action.

(2). The place at which an obligation is to be performed is 'its seat and the place of jurisdiction. That place of expected performance may be determined by the circumstances of the case, and 'in a contract of partnership its main seat is the place at which 'each of the partners is be und to pay what may be due.

With all respect for the opinion of Mr. Justice Holloway, it does not appear to me that the case, when considered, does involve the propositions mentioned, or, at any rate, the first of them.' The decision may rather, it seems to me, be treated as one involving this, that in such circumstances as there existed, the contract of partnership on the footing of which transactions were engaged in, was not a part of the cause of action, and that not being a part of the cause of action, the Court considered the place where it was made to be a matter perfectly indifferent. The suit was not one for a breach of any term of the partnership contract, but rather as appears what in English pleading would be called an action on an account stated, the statement of such account having taken place within the jurisdiction of the Court where the suit was brought. The only other form the suit can have assumed would be for a partnership account and where else could the cause of such action be said to arise, except where by the consent of the parties fee head-quarters of the partnership had been established, the moneys advanced, the accounts kept and the final accounts of the partnership dealings closed? The language of the judgment is, to say the least, consistent with the existence of the opinion on the part of the Judicial Committee, that the making of the contract not being a part of the cause of action, the fact that it was made out of the jurisdiction wars immaterial, and did not preclude the Court from entertaining the suit which was either on an account stated within the jurisdiction in respect of partnership transactions the head-quarters of which were within the jurisdiction, or for an account of such partnership transactions.

17. Inasmuch as, in my view, the obligation was created outside the jurisdiction of this Court, and there is nothing to show that the obligation had to be performed within the jurisdiction, it is not necessary to consider the decision of Kernan and Kindersly, JJ., in Muhammad Abdul Kadur v. E.I. Railway Co. I.L.R. 1 M. 375. But the decision appears in conflict with a long chain of authorities, English and Indian. The decision has been expressly dissented from in Calcutta and bombay (see the judgment of the bombay High Court in Dhunjisha Nusserwanji v. A.B. Fforde I.L.R. 11B. 649 and Rampurtah Samruthroy v. Premsukh Chandamal 15 B.g 93, and of the Calcutta High Court in be y a Narain Tewary v. The Secretary of State fur India 14 C. 256 at page 270), and does not appear to have been followed in any reported case in this Presidency.

18. A question was raised before us on behalf of the respondents which, having regard to the view indicated above, it is not necessary that I should consider. The point, however, was fully argued, and it seems desirable to deal with it. It was argued on behalf of the 1st defendant that even assuming that the cause of action arose wholly in Madras, inasmuch as the 1st defendant was a foreigner and not resident in Madras, this Court had no jurisdiction in personam over him. No issue was raised as to the defendant being a foreigner, and the evidence on the point is not conclusive. I assume, however, for the purposes of the question under consideration, that the domicile of the 1st defendant is Mysorean and that he is a subject of the State of Mysore owing allegiance to the Maharajah of Mysore.

19. Of course no exception can be taken to the general proposition that every statutory enactment should be interpreted and applied, so far as its language admits, so as not to be inconsistent with the comity of nations or with the established rules of international law. But if a legislative enactment cannot be construed without contravening the principles of international law, it is none the less the duty of the Municipal tribunals governed by the enactment to give effect to it. In the case St. Gohain Co. v. Hoyermann's Agency (1893) 2 Q.B.D. 96 Lord Esher, in dealing with the construction of Order XLVIII Rule 11 of the K.S.C., states the principle in these words: 'The words ' any person' are of course large enough to include a foreigner, and a foreigner who is resident abroad and to include one who has never been In England in his life, and has never had what has been called the protection of the English law, and merely carries on business in England by his agents. But the question is, ought the Court to give an interpretation to the words which would include such a person? If the rule had contained the words expressly in terms including a foreigner resident abroad, then an English Court would be bound to obey the directions of its own legislature, but when the words used are capable of one or other construction, then the Court ought to adopt the construction which will prevent an infringement upon the principles of international law by extending the jurisdiction of the English Courts against foreigners residing abroad who have in no way submitted to their jurisdiction.'

20. So far as the Indian authorities are concerned they certainly in my judgment, support the view that, whether the cause of action arises wholly within the local limits, or where the cause of action arises in part within the local limits, and leave to institute the suit has been obtained, the Court has jurisdiction over a non-resident foreigner.

21. In Kessowji Damodar Jairam v. Khimji Jairam I.L.R. 12 B. 507, to was held that a person who was not a British subject but, who, at the time the suit was instituted, carried on a branch business at be m' bay through an agent, was not liable to be sued in the High Court of bombay where the cause of action arose wholly outside the jurisdiction of that Court. The point which Mr. Justice Scott had to consider in that case was whether the word 'defendant' as used in Article 12 of the Letters Patent in connection with the carrying on of business, was limited to British subjects. Admittedly the cause of action arose wholly outside the jurisdiction. The question which the learned Judge put to himself 'was 'can I give the word ' defendant' in the same sentence a double meaning, i.e., a limited sense as regards jurisdiction over those who carry on business and a general sense inclusive of foreigners and British subjects in its application to those who personally work for gain or dwell there?' His answer to this question is in the affirmative, and he construes the words 'if the defendant... shall carry on business' as meaning 'if the defendant being a British subject...shall... carry on business.'

23. In Girdhar Damodar v. Kassigar 17 B. 662, on a reference under the Presidency Small Cause Courts Act, 1882, an exactly similar question of construction arose.

24. Sir Charles Sargent and Mr. Justice Starling declined to follow the decision of Scott, J., and held that the Court had jurisdiction. The question of the effect of the cause of action having arisen within the local limits upon the question of jurisdiction did not arise in that case since, under the Small Cause Courts Act, the fact that the cause of action arose, wholly or in part, within the local limits does not give the Court jurisdiction until leave to institute the suit has been obtained, and leave was not obtained in that case.

25. In Ram Ravji v. Pralpadas 20 B.k 138 at the time of the institution of the suit the defendant had ceased to carry on business within the local limits, but part of the cause of action had arisen within the local limits and leave to institute the suit had been obtained. The point, therefore, which the Court had to consider, was precisely the same as the point in the present case, since in the present case, assuming the cause of action to have arisen wholly within the local limits, no leave to institute the suit was necessary. The Court held that the reasoning upon which the decision in 17 B.k 662 was founded was applicable to the case then before the Court the Court adopted this reasoning and held that the plea to the jurisdiction failed. Of the three bombay cases, therefore, the two latter decisions taken together are direct authorities in support of the view that this Court would have jurisdiction, and the earlier case is not really an authority which conflicts with the view since admittedly, the cause of action in that case arose wholly outside the local limits. It is to be observed, moreover, that the decision in the case reported in 20 B.k 183 was after the decision of the Privy Council in the case of Gurdyal Singh v. Rajah of Faridkot (1894) App. Cas. 670.

26. In the Faridkot case the actual point decided by the Privy Council was that when a decree had been obtained exparte in the Courts of a Native State against a defendant who was not a subject of that State, an action founded on this decree ought not to be entertained by the Courts of another state or country. If the judgment in the Faridkot case is to be regarded as concluding the question of jurisdiction in the present case, it follows that, in construing Article 12 of the Letters Patent, the words 'the defendant being a British subject' must be read into the article after the words 'in all other cases'. I do not think that it was ever intended by the Judicial Committee that their decision in the Faridkot case should have such far-reaching consequences.

27. Lord Selborne, in pronouncing the judgment of the Judicial Committee, observes: 'In a personal action to which none of these causes of jurisdiction apply' (the 'causes of jurisdiction' referred to by Lord Selborne being all. causes of a general territorial character)' a decree pronounced in 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 authorized by special local legislation) in the country of the forum by which it was pronounced.' Here the words 'absolute nullity' are clearly qualified by the words in parenthesis at the end of the passage. The question therefore is--is there an authority by special local legislation (in the present case Article 12 of the Letters Patent) by virtue of which a decree against a foreigner when the cause of action has arisen within the local limits is not a 'mere nullity' in the country of the forum in which it is pronounced. In other words, are we to read Article 12 as it stands, or are we to read into it the words 'the defendant being a British subject' after the words 'in all other cases'?

28. In the case reported in 20 M.k 112 this Court was of opinion that the question there raised was concluded by the judgment of the Privy Council in the Faridkot case. But although there was an issue raised as to whether the Ceylon Court had jurisdiction over the person of the defendant who was domiciled and resident in British India, the question for decision was, not whether the Ceylon Court had jurisdiction but whether in the Courts of this country an action could be maintained on a decree obtained in Ceylon, the defendant being domiciled and resident in British India. The finding of this Court that the Ceylon Court had no jurisdiction was not necessary for the purpose of deciding the question before the Court, and is in conflict with the two bombay cases (one of which was decided after the decision of the Privy Council in the Faridkot case) referred to above.

29. The application of the words 'when authorised by special local legislation' as used by Lord Selborne in the judgment in the Faridkot case is illustrated by the judgment of the Privy Council in Asbury v. Ellis (1893) A.C. 339.

30. In that case the Privy Council hold that under the enactment which created the New Zealand Legislature the New Zealand Legislature were empowered to subject to the tribunals of that country persons who were neither by themselves nor by their agents present in the Colony.

31. With regard to the question of enforcing a judgment so obtained in the courts of another country the Judicial Committee observe:

It was said that a judgment so obtained could not be enforced beyond the limits of New Zealand, and several cases of suits founded on foreign judgments were cited. Their Lordships only refer to this argument to say that it is not relevant to the present issue. When a judgment of any tribunal comes to be enforced in another country, its effect will be judged of by the courts of that country with regard to all the circumstances of the case.' The same principle was enunciated by James, L. J., in Ex parte Blain 12. Ch. D. 522. In dealing with the question of jurisdiction of the English Court of Bankruptcy to make an adjudication of bankruptcy against a foreigner the learned judge says:--' English legislation has said that if a debtor allows his goods to be taken in execution, certain consequences shall follow, and English legislation has a right to say that with regard to an English subject. But what right has it to say so with regard to a Chillan? No doubt it has a right to say to a Chillan, or to any other foreigner: ' If you make a contract in England, or commit a breach of a contract in England, under a particular Act of Parliament, a particular procedure may be taken by which we can effectually try the question of that contract or that breach, and give execution against any property of yours in this country.' But that is because the property is within the protection and subject to the powers of the English law. To what extent the decision of such a question would be recognized abroad remains to be considered, and must be determined by the tribunals abroad. If a foreigner, being served with a writ under the provisions of the Judicature Act, did not choose to appear, and the Legislature said, If you do not appear you will commit a default in that way, and we will give a judgment against you', whether that judgment would, under such circumstances, be recognized fey foreign tribunals, as being consistent with international law and the general principles of justice, is a matter which must be determined by them.

32. The question whether a Court is entitled to exercise jurisdiction is entirely distinct from the question whether where a Court has adjudicated, the adjudication can be made the foundation of an action in the courts of another country. The only principle of international law which is relevant in regard to the first question is that the enactment which creates the jurisdiction, should, if susceptible of more than one construction, be interpreted in conformity with the comity of nations and the principles of international law. If it cannot be so interpreted, it is none the less the duty of the tribunal, assuming the conditions prescribed by the enactment for the exercise of the jurisdiction are shown to exist, to adjudicate ; although in such a case the tribunals of other countries, in accordance with the principles of international law, would decline to recognize the adjudication as in any way binding upon them. So far 1 have dealt generally with the decision in the Faridkot case. I would observe, however, that in the Faridhot case the decree was obtained ex parte although it would seem that the defendant had notice of the suits and had an opportunity of appearing though he advisedly declined to do so. In the present case the defendant appeared and pleaded to the jurisdiction, but in his plea to the jurisdiction ho did not in his written statement raise the point that he was not amenable to the jurisdiction of this Court by reason of his being a foreigner owing allegiance to the Maharajah of Mysore, and no issue was taken with reference to it. In these circumstances, if any decision turned upon the question now under consideration, I should feel some doubt as to whether the 1st defendant was entitled to rely on this defence.

33. A number of cases as to the construction ofI.L.R.S.C. Order XI (service out of the jurisdiction) and of the old. Rules 6 and 7 of Order IX--now superseded by Order XLVIII A--(service on partners or a firm) were cited in argument--which illustrate the general principle. But I do not think any useful purpose would be sorved by examining these cases in detail since they all turn on the precise words as used in the rule under consideration. As regards the bankruptcy cases the English courts in dealing with this class of cases have always been largely influenced by the consideration that bankruptcy affects a man's status. In the most recent decision re: A.B. (1900) 1 Q.B. 541, Lindley, M.R., puts it thus: 'It must be borne in mind that bankruptcy is a very serious matter. It alters the status of the bankrupt. This cannot be overlooked or forgotten when we are dealing with foreigners, who are not subject to our jurisdiction. What authority or right has the Court to alter in this way the status of foreigners who are not subject to our jurisdiction? If Parliament had conferred this power in express words, then, of course, the Court would be bound to exercise it. But the decisions go to this extent, and rightly,I think, in principle, that unless Parliament has conferred upon the Court that power in language which is unmistakable, the Court is not to assume that Parliament intended to do that which might so seriously affect foreigners who are not resident here, and might give offence to foreign Governments.'

34. The conclusion at which I have arrived is that if the cause of action in this case had arisen wholly within the local limits, this Court would have had jurisdiction to entertain the suit as against the first defendant. But inasmuch as, in my judgment, the cause of action did not so wholly arise, I think, Shephard, J., was right in dismissing the suit as against him. As regards the 3rd defendant he entered an appearance in the ordinary course and did not plead to the jurisdiction. I think he must be taken to have submitted to the jurisdiction. I think the suit ought not to have been dismissed as against him.

35. As regards defendants 2 and 4 they were residents within the jurisdiction at the time the suit was instituted, and I see no reason why the plaintiff is not entitled to the decree prayed for as against them. 'The fact that all the trust property is in the hands of the 1st defendant does not, appear to me to be a good reason for dismissing the suit as against defendants 2 and 4. There is an allegation of wilful default in the carrying out of the trust as against all the executors (see paragraph 9 of the plaint), and it seems to me that this involves a charge of specific breach of trust-as against them all see Barber v. Machrell 12 Ch. 1 534.

36. In my opinion as regards the 1st defendant, the judgment of Shephard, J., (subject to the question of costs which I will mention later) should be affirmed and the appeal dismissed. As regards defendants 2, 3 and 4, I think that the plaintiff is entitled to the relief claimed as against them and that, as against them, the appeal should be allowed.

37. Notwithstanding that in my view this Court has no jurisdiction to entertain this suit as against the 1st defendant, I think we have jurisdiction under Section 220 of the Code of Civil Procedure and Article 21 of the Letters Patent to order that the costs of the plaintiff be in this Court and in the Court below should be paid out of the estate, and, in the special circumstances of this case, especially having regard to the fact that for a period of about 4 years, the 1st defendant admitted and acted under the trust. I think this is the order we ought to make. I think the defendants should bear their own costs here and in the Court below.

Davies, J.

38. The plaintiff sues the four executors of her father's will to carry into effect the trust created therein in her favour. The subject of the trust is a specific sum of about Es. 50,000, the proceeds of certain policies of life assurance of the deceased testator, and it is directed by the will that this money be invested in Government of India promissory notes and the interest on four-fifths thereof be paid to the plaintiff and the remaining one-fifth to the deceased's wife and after her death to the plaintiff. After plaintiff's death her children are to inherit, The testator died in August 1892, and the 1st defendant, his son, the only working executor, received from the Insurance Companies in due course the above said sum of Rs. 50,000. The papers show that Rs. 23, 510-11-0 was received in July 1893, and the 1st defendant admits the receipts of the whole Rs. 50,000, by the 4th of May 1894, in paragraph 11 of his affidavit Exhibit S. He paid the plaintiff interest on her portion of the fund, namley, Rs. 40,000 at 6 per cent. per annum, i.e., Rs. 200 a month up to August 1896 and for the next four months, i.e., to the end of 1896 at 3 1/2 per cent., the rate of the current Government loan, in which, however, he has not, and never had invested the money. From January 1899 the plaintiff has received nothing by way of interest and is not aware of what has become of the fund, the 1st defendant having formally repudiated the trust in August 1898. Hence this action against him for malversation and against the other throe defendant executors for negligence in not looking to the due performance of the trust.

39. The learned Judge dismissed the suit as against the 1st and 3rd defendants on the ground that under Section 12 of Letters Patent this Court has no jurisdiction over those defendants, they not being residents of Madras and the whole cause of action not having arisen in Madras, and as against defendants 2 and 4, who are residents of Madras, on the ground that no specific breach of trust was laid against them. As the 3rd defendant by a petition on the record expressly submitted to the jurisdiction, he should be placed in the same position as defendants 2 and 4,'and the case against these three defendants will be separately dealt with at the end. It is with the 1st defendant that the plaintiff is mostly concerned. Now, there can be no doubt upon the evidence, as the learned Judge has found, that the 1st defendant did not reside in Madras at the time of the institution of this suit. The only question for determination, therefore, is whether or not the whole cause of action arose in Madras. A number of decided cases was cited at the Bar pro and con in regard to the proposition that the broach of obligation does not constitute the sole cause of action but that the creation of the obligation has also to be included to make the cause of action complete. So that when only the breach takes place in the jurisdiction of the Court limited to a certain local area, the whole cause of action has not accrued in that area. That Seems now to be settled law, the last reported case being Payne v. Hogg L.R. 1900 Q.B. 48. But this and the other decisions to the like, effect dealt with cases of breach of contract. In my opinion it is by no means clear that they are applicable to all or any cases of breach of trust, or especially to such a case as this where the trust may be said to follow the beneficiary and the place of performance be considered as the place where the obligation originates. The place of performance in this case was undoubtedly Madras, where the plaintiff resides, and where the 1st defendant last paid her the interest. No direction was given in the will that the plaintiff should reside in, or be paid at, any particular place. Her right therefore is to be paid wherever she may be so long as the place is within reasonable reach of the trustees or of the active trustee, the 1st defendant. I am therefore of opinion that on this ground alone the whole cause of action arose in Madras. But there are other facts which in combination with the fact of payments of interest being made to the plaintiff in Madras lead me to the conclusion that the whole cause of action arose here. They are, first, that the probate of the will creating the trust was taken out from this Court and that the 1st defendant upon that probate accounted to this court particular trust (paragraph 11 of Exhibit S). It was therefore expressly acknowledged by him in Madras; secondly, that the 1st defendant repudiated the trust in Madras by a letter sent to the 2nd defendant residing here ; thirdly, that part of the trust money, viz., Rs. 25,100 referred above, was misapplied in Madras by being lent to a private individual here (Exhibit I1) instead of being invested in Government promissory note.

40. I however record only the above condensed judgment on the question of the cause of action, because I must hold that the 1st defendant is not subject to our jurisdiction in this personal action for the reason that he is an alien. That the 1st defendant is a subject of His Highness the Maharajah of Mysore and a permanent resident of the Bangalore City in the Mysore State and as such a foreigner, is beyond doubt. He asserted his claim at the outset in his affidavit Exhibit U which has not been answered, and it is fully supported by other evidence. He is not dwelling or carrying on business or personally working for gain in Madras (Section 12 of the Letters Patent). Therefore, by international law, he is not amenable to the jurisdiction of this court in a personal action, albeit the whole cause of action arose in Madras, unless he has submitted himself to the jurisdiction. The rule is very clearly laid down by their Lordships of the Judicial Committee in Gurdyal Singh v. Rajah of Faridkot I.L.R. 22 C. 222 which was a case wherein the whole cause of action had arisen in the foreign State. I quote the following passage from the judgment.' In a personal action... a decree pronounced in 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 authorized by special local legislation) in the country of the forum by which it was pronounced.' The 'special local legislation' referred to as the exception can never be required to confer jurisdiction in a case where the whole cause of action arises within the jurisdiction as the jurisdiction would follow as a matter of course in such a case. So it must refer to local legislation in respect to the persons to be made subject to the jurisdiction such as we have it in the Letters Patent, that is, persons residing or carrying on business and so on within the jurisdiction. The 1st defendant is not such a person, and therefore action against him in no case lies. The only question then left is whether the 1st defendant has submitted to the jurisdiction of this Court. It is urged by Mr. Kenworthy Brown, for the plaintiff, that the taking out of the probate of the will in this court with the subsequent liability to account under Section 98 of the Probate and Administration Act of 1881 was such a submission; but, as is pointed out by Mr. Justice Shephard, such obligation as was entailed by taking out the probate has been discharged. Without repeating the learned Judge's reasons I agree with him that the taking out of probate did not amount to a submission by the 1st defendant to this Court's jurisdiction in the matter of this suit. The decision of the bombay High Court in Girdhar Damodar v. Kassigar Hiragar I.L.R. 17 B. 662 which was also relied on by the plaintiff's Counsel in favour of the contention that a foreigner was liable to its jurisdiction was decided on the express ground that business was carried on by the foreigner within the jurisdiction, and the decision of the same High Court in Ram Ravji Jambhekar v. Pralhaddas Subkran I.L.R. 20 B. 133 seems to be based on the same ground. But that particular circumstance is wanting hero. On the authority, therefore, of the Privy Council above cited, I am of opinion that the plaintiff cannot proceed against the 1st defendant and I accordingly dismiss the appeal as against him.

41. As to the other defendants, the 2nd and 4th are residents of Madras and the 3rd has expressly submitted to the jurisdiction of the Court. So there can be no doubt that as regards them the suit in this Court is not bad for want of jurisdiction. As they are charged with negligence as trustees in not seeing to the due fulfilment of the trust which they have accepted, I think the plaintiff is entitled to proceed against them to enforce the trust money being brought into Court for its due application.

42. In reversal, therefore, of the decree appealed against I would order the suit to he restored to the file to be proceeded with according to law against defendants 2, 3 and 4. 1 would also allow the appeal in respect to costs and direct that the plaintiff's costs throughout be paid out of the estate of the testator and that the defendants do bear their own costs.


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