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Mathrukovil Kizhakkappat Matathil Ramalinga Aiyar Vs. Thavanur Matathil Krishna Pattar's son Swaminatha Aiyar (26.03.1941 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1941)2MLJ68
AppellantMathrukovil Kizhakkappat Matathil Ramalinga Aiyar
RespondentThavanur Matathil Krishna Pattar's son Swaminatha Aiyar
Cases ReferredMeenakshi Amma v. Subramania Aiyar
Excerpt:
- - dual nationality is now well recognised. 5. as domicile is not a factor and as it is common ground that the respondent was not resident in cochin at any time material and had not submitted to the jurisdiction of the trichur court, the question resolves itself into whether under the law of cochin, he was a cochin subject as well as being a british subject at the date of the institution of the suit......court to execute the decree. he claimed that he was a british subject with a residence outside the cochin state and therefore the decree could not be enforced against him in a british indian court.2. the respondent is a british subject because he was born in british india, but his parents were subjects of the state of cochin. the fact that he could claim british nationality under section 2 (1) (a) of the british nationality and status of aliens act, 1914, does not, however, preclude him from having a dual status. dual nationality is now well recognised. section 13 of the code of civil procedure states 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.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. This appeal raises a question of international law. It arises out of execution proceedings instituted in the Court of the District Munsif of Cannanore. The appellant had obtained a decree against the respondent in the District Court of Trichur, which is in the State of Cochin. For the purpose of execution the appellant caused the decree to be transferred to the District Court of Tellicherry. The District Judge, however, sent the decree to the Court of the District Munsif of Cannanore in order that he might hear and decide the application for execution. When the application came on for hearing, the respondent challenged the right of the Court to execute the decree. He claimed that he was a British subject with a residence outside the Cochin State and therefore the decree could not be enforced against him in a British Indian Court.

2. The respondent is a British subject because he was born in British India, but his parents were subjects of the State of Cochin. The fact that he could claim British nationality under Section 2 (1) (a) of the British Nationality and Status of Aliens Act, 1914, does not, however, preclude him from having a dual status. Dual nationality is now well recognised. Section 13 of the Code of Civil Procedure states 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, except under certain circumstances which are set out. There is only one exception with which the Court is now concerned and that is, the decree must have been pronounced by a Court of competent jurisdiction. The Trichur Court could only be a Court of competent jurisdiction within the meaning of Section 13 if the respondent were a Cochin subject, or were resident within its jurisdiction when the suit was instituted, or had submitted to its jurisdiction. It is common ground that he was resident in British India at the time of the institution of the suit and that there was no submission to the jurisdiction of the Trichur Court.

3. The District Munsif held that the respondent was a Cochin subject and that the appellant was entitled to proceed to execute the decree which he had obtained in Trichur, but on appeal the Subordinate Judge of Tellicherry reversed the decision of the District Munsif on the ground that the respondent, although born of Cochin parents, had lost his Cochin nationality by reason of his change of domicile. There can be no doubt that here the Subordinate Judge erred. Domicile is not a factor. See Dicey's 'Conflict of Laws' (5th Edition p. 405). Therefore, if the respondent is a Cochin national the fact that he had changed his domicile of origin, if it be a fact, could not affect the right of the Cochin Court to adjudicate on a claim against him.

4. In his evidence in the District Munsif's Court the respondent stated that he was not a Cochin subject and this statement has been said to amount to a renunciation of his Cochin nationlity, but renunciation after the decree had been passed against him cannot help him. See Vecht v. Taylor (1917) 116 L.T. 446. In that case the appellant was born in London in 1882. His father and mother were both Dutch subjects, but were ordinarily resident in Great Britain. On the 8th November, 1916 he was arrested on a charge of failing, when called up for military service, to appear at the time and place appointed. The case was adjourned to the 15th November, 1916. On the 9th November, 1916, the ' appellant made a declaration of alienage under Section 14(1) of the British Nationality and States of Aliens Act of 1914, and as the result claimed that he was not a British subject and therefore not liable to be called up for military service. The Divisional Court (Lord Reading, C.J., Ridley and Rowlatt, JJ) said that the first and fatal answer to the appellant's case was that nothing which happened after the 8th November, could be an answer to the charge of failing to submit himself to the military authorities before that date. In accordance with the same principle, if the respondent was a Cochin subject at the date of the passing of the decree any declaration renouncing his Cochin nationality after the passing of the decree would leave the position unchanged.

5. As domicile is not a factor and as it is common ground that the respondent was not resident in Cochin at any time material and had not submitted to the jurisdiction of the Trichur Court, the question resolves itself into whether under the law of Cochin, he was a Cochin subject as well as being a British subject at the date of the institution of the suit. From the time of the passing of 25 Edward III, a son of British parents born abroad has always been regarded as a British subject. There were statutes passed in the reigns of Anne, George II and George III dealing with the question of nationality, but the right of the son of a British subject to claim the nationality of his father has throughout been recognised. The position of the grandson does not call for mention in this case. There was no statute in Cochin until 1932 when the Cochin State Nationals Definition Act was passed. Section 2 of the Act states that descendants of emigrants from the Cochin State, born abroad, shall be considered to be state nationals for two generations. The respondent was born in 1896 and it has been accepted on behalf of the appellant that the statute cannot be given retrospective effect. In these circumstances the Court has to decide what was the law in the Cochin State at the time the respondent was born. This question was not considered in the Courts below, but it has to be considered in this Court.

6. It is manifest from a decision of a Full Bench of the Chief Court of Cochin given in the year 1931 that before 1932 the law of Cochin was the same as the English law on the subject. The case was that of Meenakshi Amma v. Subramania Aiyar (1931) 22 Coch.L.R. 393. There it was expressly recognised that a member of a Cochin tarwad could acquire a foreign nationality by birth or otherwise and that a person could at one and the same time be the subject of more than one State. The Court had to consider whether a person born of Cochin parents had acquired British nationality and after recognising that dual nationality could exist the Court found that the appellant had acquired British nationality and was liable under a decree passed by the Subordinate Judge of Calicut which had been transferred to Trichur for execution. That case differs from the present case in that the decree was passed by a British Indian Court and sent to a Cochin Court for execution, whereas here we have a decree passed by a Cochin Court sent to a British Indian Court for execution, but the principle is the same. The Chief Court of Cochin was the highest Court of the Cochin State at the time and the pronouncement by a Full Bench of the Court must be accepted as an authoritative statement of the law which existed in the State before the passing of the Act of 1932.

7. It cannot be denied that the respondent at birth was a subject of the Cochin State, because he was born of Cochin parents. The fact that he was born in British India did not affect his status in Cochin, and at the time of the institution of the suit he had not lost that status, which means that the Trichur Court was a Court competent to try the appellant's suit against the respondent.

8. For these reasons we allow the appeal and restore the decision of the District Munsif. The appellant is entitled to his costs here and in the Subordinate Court.


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