Alfred Henry Lionel Leach, C.J.
1. This appeal has given rise to an interesting argument, but when the statutory provisions with which it is concerned are examined the decision does not present great difficulty.
2. On the 27th August, 1938, the appellant, a Chinaman, carrying on business at Penang in the Federated Malay States, instituted a suit in the Court of the District Munsiff of Pattukottai, the suit which has given rise to this appeal. He had business dealings in Penang with one Sheik Ali, who was the assignee of a mortgage created on the 30th August, 1922 by the father of the first, second and third defendants. On the 23rd April, 1930, Sheik Ali left a will under which he bequeathed all his properties to the plaintiff in satisfaction of money which he owed to him. The testator died on the 28th May, 1930. The suit was to enforce payment of the amount due under the mortgage of 30th August, 1922, the property covered by it being situate in the jurisdiction of the District Munsiff of Pattukottai. The cause title shows ten defendants. As we have indicated, the first three defendants are the sons of the mortgagor. The fourth, fifth, sixth and seventh defendants are the heirs of a subsequent mortgagee. The eighth, ninth and tenth defendants are the heirs of the first defendant who died pending the suit.
3. By a judgment dated the 16th August, 1941, the District Munsiff of Tanjore to whose Court the suit had been transferred, dismissed it. He found on the issues raised by the defendants that the testator was not of sound disposing state of mind when he executed the will, that the will was invalid under the Mahomedan law and that the mortgage deed had in fact been discharged by a payment made to the brother of the testator. The plaintiff appealed to the Court of the District Judge, West Tanjore, but the District Judge transferred the appeal to the Court of the Subordinate Judge. The appeal was filed on the 20th October, 1941 and was heard on the 2nd October, 1942. The Subordinate Judge gave his judgment on the 16th October, 1942. He found that the testator was in full possession of his mental faculties at the time of the execution of the will, that the will was valid and that the mortgage debt had not been discharged. Defendants 4 to 7 appealed to this Court. The appeal was heard by Byers, J.,1 who allowed it on the ground that the appeal to the Subordinate Judge was not maintainable because at the time of the hearing the plaintiff was an enemy within the meaning of Rule 97 of the Defence of India Rules read with Rule 2. Between the filing of the appeal in the District Court and the hearing of it by the Subordinate Judge the Japanese had overrun the whole of the Federated Malay States and the Straits Settlement. Singapore was occupied by the Japanese on the 15th February, 1942, but the date of their occupation of Penang has not been given. It was some short time before the occupation of Singapore. In interpreting the Defence of India Rules which have bearing on the matter the learned Judge placed great reliance on the decision of the House of Lords in Sovfracht (VI0) v. Van Udens Schoepvaert En Agentuur Maatschappij (JV.V. Gebr) (1943) A.O. 203. The learned Judge gave a certificate which has allowed the plaintiff to file the present appeal under Clause 15 of the Letters Patent.
4. Before examining the provisions of Rule 2 and Rule 97 of the Defence of India Rules we will look at the provisions of Section 83 of the Code of Civil Procedure. This section was not referred to by the learned Judge. It reads as follows:
(1) Alien enemies residing in British India with the permission of the Central Government and alien friends, may sue in the Courts of British India, as if they were subjects of His Majesty.
(2) No alien enemy residing in British India without such permission, or residing in a foreign country, shall sue in any of such Courts.
Explanation.--Every person residing in a foreign country the Government of which is at war with the United Kingdom of Great Britain and Ireland and carrying on business in that country without a license in that behalf under the hand of one of His Majesty's Secretaries of State or of a Secretary to the Central Government shall, for the purpose of Sub-section (2), be deemed to be an alien enemy residing in a foreign country.
The explanation is the important part of the section so far as this case is concerned. The plaintiff is not an alien enemy within the meaning of the section because the Government of the Federated Malay States was not at war with the United Kingdom. The word ' Government 'must mean the recognised Government of the country. It would be doing violence to the wording of the section to hold that it includes an enemy army in temporary occupation of the country. Therefore, so far as the Code of Civil Procedure is concerned, the plaintiff was entitled not only to institute the suit but to proceed with the appeal in the Subordinate Court.
4. The Defence of India Rules are framed under Section 2 of the Defence of India Act, 1939. Sub-rule (1) of Rule 2 defines ' enemy ' as any person or State at war with His Majesty. Sub-rule (2) defines ' enemy territory ' as meaning.
(a) any area which is under the sovereignty of, or administered by, or for the time being in the occupation of, a State at war with His Majesty, not being an area in the occupation of His Majesty, or of a State allied with His Majesty and (b) any area which may be notified by the Central Government to be enemy territory for the purposes of these rules or such of them as may be specified in the notification.
Rule 97 is the first rule in Part XV, which relates to the control of trading with an enemy. It reads as follows:
For the purposes of this Part the expression ' enemy ' means--
(a) any State, or Sovereign of a State, at war, with His Majesty, or
(b) any individual resident in enemy territory, or
(c) any body of persons constituted or incorporated in enemy territory, or in, or under the laws of, a State at war with His Majesty, or
(d) any other person or body of persons declared by the Central Government to be an enemy, or
(e) any body of persons whether incorporated or not carrying on business in any place, if and so long as the body is controlled by a person who, under this rule, is an enemy, or
(f) as respects any business carried on in enemy territory, any individual or body of persons, whether incorporated or not, carrying on that business.
If the plaintiff is to be regarded as being resident in enemy territory, or carrying on business in such territory, it is accepted that he could not have prosecuted the appeal in the Subordinate Court until after the suspension of the hostilities. Mr. Justice Byers considered that the plaintiff was a resident in enemy territory within the meaning of Rule 2(2)(a).
5. This rule differs in a material respect from the corresponding provision in the English law. The corresponding provision in the English law is Section 15(1) of the Trading with the Enemy Act, 1939. It defines ' enemy territory ' as meaning ' any area which is under the sovereignty of or in the occupation of a power with whom His Majesty is at war '. The words ' not being an area in the occupation of His Majesty or of a State allied with His Majesty ', which appear in the Indian Rule,are not there. Under the English Act Penang after its occupation by the Japanese undoubtedly became enemy territory. The question then is, what is the meaning to be attached to the words ' not being an area in the occupation of His Majesty or of a State allied with His Majesty ' to be found in the Indian Rule? In our judgment they can only be read as meaning ' not being an area which was in the occupation of His Majesty or of a State allied with His Majesty'. The words ' not being an area ' must have reference to the words ' any area ' with which the rule opens. Under the rule there are three categories of enemy territory, namely, (i) territory which is under the sovereignty of a State at war with His Majesty, (ii) territory which is being administered by a State at war with His Majesty and (III) territory which for the time being is in the occupation of a State at war with His Majesty. If the words ' not being an area in the occupation of His Majesty ' are not to be read in the way we read them, the provision with regard to the territory occupied by the enemy would be meaningless because an area cannot be in the occupation of both at the same time.
6. We are confirmed in our opinion when we look at Clause (b) of the rule. That clause provides that the Central Government may declare territory in any area to be enemy territory, that means territory in any part of the world. We can only gather the intention of the Government of India in framing these rules from the wording and looking at clauses (a) and (b) of the rule it would appear that the intention of the Government was not to treat territory temporarily overrun by the enemy as enemy territory unless the need should arise. We are told that there has been no notification issued declaring Penang to be enemy territory and consequently it must be presumed that there was no necessity for treating it as such.
7. The same question has arisen twice in cases tried on the original side of this Court by Chandrasekhara Aiyar, J., who came to the same conclusion. Those cases are Thenappa Chettiar v. Indian Overseas Bank, Ltd. : AIR1943Mad743 and Manasseh Film Co. v. Gemini Pictures Circuit (1944) 1 M.L.J. 58 : I.L.R. (1944) Mad. 124.
8. As Penang was not at any time material to this suit enemy territory within the meaning of the Defence of India Rules, the plaintiff was not an enemy and, therefore, the provisions of Part XV of the Rules do not apply to him so far as this case is concerned.
9. We do not regard the decision of the House of Lords in Sovfracht (V/O) v. Van Udens Schoepvaert En Agentuur Maatschappij (N.V. Gebr.) (1943) A.O. 203, as having real bearing. Not only is the English law different but the facts are different. There the respondents, a Dutch company, carrying on business at Rottendam chartered a vessel to the appellants. This was before the outbreak of the war between Britain and Germany in September, 1939. After the war had begun disputes arose between the parties and the respondents sought arbitration in London in accordance with the provisions of the Charterparty. This was in April 1940. The Germans did not invade the Netherlands until May, 1940. After this event had happened the appellants refused to proceed with the arbitration on the ground that the respondents should be treated as alien enemies. In this attitude the appellants were supported by the arbitrator whom they had nominated. The result was that on the 24th June, 1941, the respondents took out a summons before the Master asking for the appointment of an umpire. The Master appointed an umpire and his decision was upheld by Asquith, J., sitting in chambers. The appellants appealed. They contended that both under the common law and the Trading with the Enemy Act, 1939, the respondents were not entitled to proceed with the arbitration until hostilities had ceased. The Court of Appeal held that the respondents were not alien enemies at common law but that they must be treated as such under the Trading with Enemy Act. During the hearing of the appeal counsel for the respondents intimated that there would be no difficulty in getting the sanction of the Treasury and Board of Trade to permit the arbitration proceeding and the hearing was adjourned to enable them to obtain permission. The Treasury and Board of Trade both gave their sanction and consequently the appeal was dismissed. The appellants appealed to the House of Lords. The House of Lords held that under the Act and at common law the arbitration could not be proceeded with during the war. Their Lordships also held that neither the Treasury nor the Board of Trade could with retrospective effect give sanction to such a course. The result was that the appeal was allowed and the summons taken out after the invasion of Holland by Germany was dismissed.
10. We consider that Byers, J., erred in applying the principles laid down in that decision to the present case. We have already indicated that if Rule 2(2)(a) of the Defence of India Rules had been on all fours with Section 15(1) of the English Trading with the Enemy Act, 1939, the Court would be bound to hold that Penang was enemy territory when the appeal to the Subordinate Judge came on for hearing and therefore could not be proceeded with. There is however an important difference between the two enactments and of such a nature that the decision of the House of Lords relating to the Trading with the Enemy Act cannot have bearing here. Nor can the common law be applied in the present case. The suit was instituted in a mofussil Court. Even if the common law had applied it cannot override an Indian statute. In Bank of England v. Vagliano Bros. (1891) A.C. 107 , Lord Halsbury, L.C., pointed out. that where a statute is expressly said to codify the law, the Court is not at liberty to go outside the Code because before the existence of that Code another law prevailed. By reason of the provisions of the Code of Civil Procedure the plaintiff had full right to sue and to prefer the appeal from the decision of the District Munsiff.
11. For the reasons given the appeal must be allowed and the case remanded to Byers, J., to decide a question left open, namely, whether the will is valid according to Mahomedan law.
12. The appellant is entitled to the costs of the appeal to this Court. The costs of the second appeal will abide the result of the further hearing. The appellant is entitled to a refund of the court-fee paid on the memorandum of Letters Patent Appeal.