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E. Christien Vs. P.J. Delanney - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal931
AppellantE. Christien
RespondentP.J. Delanney
Cases ReferredGurdyal Singh v. Raja of Faridkot
Excerpt:
foreign court, jurisdiction of - private international law--suit in british court on foreign judgment--territorial jurisdiction--british subject--domicile--nationality--indian evidence act (i of 1872), section 38--decree of foreign court, as evidence in court in british india--civil procedure code (xiv of 1882), section 13. - .....a british subject domiciled in british india. it is found that the respondent's grandfather was a french subject, who came to comilla, acquired property in the tipperah district, and died there, but was buried at chandernagore; that the respondent's father was born and permanently resided in the tipperah district, but died in france, to which country he had proceeded for a cure, and that his body was at his own request brought to chandernagore to be laid beside that of his father; that the respondent was born and lives permanently in comilla, does not even know the french language, and calls himself a british subject.4. on these facts we think the district judge was right in finding that the respondent was a british subject domiciled in british india. in west-lake on private.....
Judgment:

Macpherson and Stevens, JJ.

1. This suit was brought to enforce a judgment which the appellant had obtained against the respondent in the French Court at Chandernagore. The District Judge, reversing the decision of the Subordinate Judge, dismissed the suit on the ground that the Chandernagore Court had no jurisdiction over the respondent, who is a resident of the Tipperah district.

2. The appellant and her aunt Madame Montie resided in Chandernagore, which is a French territory. Madame Montie was entitled under the will of the respondent's father to a monthly allowance of Its. 100, and at the time of her death Rs. 2,500 was due to her on that account. The appellant, claiming to be entitled to that sum under her aunt's will, brought an action against the respondent in the Chandernagore Court and obtained the judgment which it is sought to enforce in the present suit. The respondent was served with a summons, but did not appear in the Chandernagore Court and the judgment was given against him in his absence.

3. The respondent never resided in the French territory at Chandernagore or subjected himself by any acts of his to the jurisdiction of the French Court established there, and he is, the Judge finds, a British subject domiciled in British India. It is found that the respondent's grandfather was a French subject, who came to Comilla, acquired property in the Tipperah district, and died there, but was buried at Chandernagore; that the respondent's father was born and permanently resided in the Tipperah district, but died in France, to which country he had proceeded for a cure, and that his body was at his own request brought to Chandernagore to be laid beside that of his father; that the respondent was born and lives permanently in Comilla, does not even know the French language, and calls himself a British subject.

4. On these facts we think the District Judge was right in finding that the respondent was a British subject domiciled in British India. In West-lake on Private International Law, 3rd Edition, page 323, it is said: British nationality results from birth in the British dominions, except in the case of a child born to an enemy father at a place in hostile occupation.' Birth on the soil and not citizenship by descent determines the nationality. It is argued, however, that the respondent, although he may be a British subject, is still a Frenchman, who owes allegiance to the French Government, and that as such the French Court at Chandernagore had jurisdiction over him, wherever he resided. In support of the contention that he is still a Frenchman we were referred to a passage in an unauthorized translation of the Code Napoleon. This is not a work to which under Section 38 of the Evidence Act we are in a position to refer, and no authorised edition of that Code has been put before us. Assuming, however, that according to French law he is still a Frenchman owing allegiance to the French Government, he is domiciled in British India and is, according to the passage quoted from Westlake, a British subject. No authority has been shown us for the contention that the Chandernagore Court has jurisdiction over him, even if he is a Frenchman residing in British India, much less if he is a British subject domiciled there. We do not know what the French law on the subject is, as there is no evidence about it, The respondent was not within the territorial jurisdiction of the Chandernagore Court, either at the time when the suit was brought or previously, and if there is any special territorial legislation giving jurisdiction to the Chandernagore Court over persons permanently residing in foreign territory, it has not been brought to our notice, and it would, moreover, be a legislation which could not, we think, be recognized by a foreign Court within the jurisdiction of which the respondent resided.

5. Section 13 of the Code of Civil Procedure enacts that where a foreign judgment is relied on the production of the judgment duly authenticated is presumptive evidence that the Court which made it had competent jurisdiction. That section relates to matters of res judicata, and there is, we think, a distinction between a case in which a defendant puts forward a foreign judgment as a bar to a suit and a case in which a plaintiff seeks to enforce a foreign judgment. In the former it may fairly be supposed that the parties submitted to the jurisdiction. But even if there is any presumption in the present case in favour of the jurisdiction of the Chandernagore Court, that has, we consider, been sufficiently rebutted by the facts found.

6. This case is undistinguishable from the case of Gurdyal Singh v. Raja of Faridkot (1894) I.L.R., 22 Cal., 222: L.R., 21 I.A., 171, in all respects save this, that in the latter case the defendant was unquestionably not a subject of the Foreign State, in the Court of which the judgment sought to be enforced was passed. We think that on the facts found in this case and in the absence of any evidence to prove that the French Court had jurisdiction over the respondent., there is no ground for drawing any distinction. It is difficult, moreover, apart from all other considerations, to understand how the Chandernagore Court had any jurisdiction over the cause. The obligation under which the money was payable was not incurred in the Chandernagore territory, and it cannot be said that the money was payable there merely because the donee resided there. We may add also that the decree is not one which a Court in British India could properly have made against the respondent. His mother was executrix of his father's will; she had taken out probate of it, was still living in the Tipperah district, and apparently acting as executrix. The respondent was only one of the beneficiaries under the will, and if he was assisting his mother in the management of the property or even actively managing it, he was not the person who was in law responsible for the debt.

7. It is enough, however, to confirm the judgment of the District Judge on the ground on which it proceeded, viz., that the Chandernagore Court had no jurisdiction over the respondent, or at least no jurisdiction which a Court in British India would recognize.

8. The appeal is dismissed with costs.


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