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Jayaswal Shipping Company Vs. the Owners and Parties Interested in Steamship s.S. Leelavati - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberSuit No. 6 of 1953
Judge
Reported inAIR1954Cal415,58CWN468
ActsConstitution of India - Articles 5 and 225; ;Admiratly Court Act, 1861 - Section 5
AppellantJayaswal Shipping Company
RespondentThe Owners and Parties Interested in Steamship "s.S. Leelavati"
Appellant AdvocateD.R. Das, Adv.
Respondent AdvocateR. Chaudhuri, Adv.
DispositionSuit dismissed
Cases ReferredSusan McMullen v. Wadsworth
Excerpt:
- p.b. mukharji, j.1. this is an admiralty action in this high court. it raises an intricate but interesting point of admiralty jurisdiction. to put. it graphically, the point of construction raised in the suit is how the words 'domiciled in england or wales' appearing in section 5 of the admiralty court act, 1861 (24 victoria, ch. x) can be dovetailed in the topography of india, and when so does, what will be the scope and extent of the meaning of these words. the ancient lumber of admiralty law in india is in need of immediate legislative spring cleaning, so that her citizen of today may be spared in future from the task of solving such problem of indianising english geography by having to interpret english statutes.2. before discussing this point which does not appear to be covered by.....
Judgment:

P.B. Mukharji, J.

1. This is an admiralty action in this High Court. It raises an intricate but interesting point of Admiralty Jurisdiction. To put. it graphically, the point of construction raised in the suit is how the words 'domiciled in England or Wales' appearing in Section 5 Of the Admiralty Court Act, 1861 (24 Victoria, Ch. X) can be dovetailed in the topography of India, and when so does, what will be the scope and extent of the meaning of these words. The ancient lumber of admiralty law in India is in need of immediate legislative spring cleaning, so that her citizen of today may be spared in future from the task of solving such problem of Indianising English geography by having to interpret English Statutes.

2. Before discussing this point which does not appear to be covered by any decision in India, it is essential to state the accessory facts.

3. The suit is instituted by Jayaswal Shipping Company, a registered partnership, against the owners and parties interested in the Steamship 'S. S. Leelavati' for, a decree for the sum of Rs. 33,041-15-3p being the amount alleged to be due to the plaintiff by the defendant for supplyingnecessaries in connection with the operations ofthe said vessel at the port of Calcutta. It is conceded and admitted by Mr. B. Choudhury, learned counsel for the defendants, that necessaries were supplied.

He, however, does not admit the amount claimed although he admits that the claim is on accountof necessaries. Such admission, therefore, is recorded in the proceedings of the suit, because in paragraph 6 of the ailidavit-in-opposition ofChinam Suryya Narayan Murti affirmed on 6-10-1953 there is the allegation that

'It does not appear from the said petition that any necessaries were supplied or moneys paid for necessaries in connection with the operation of the said vessel.'

This admission, therefore, makes it unnecessary to take any evidence on the point whether necessaries were supplied. On the side of the plaintiff also there has been a concession on a point of fact by Mr. D. R. Das, learned counsel for the plaintiff. The admission by the plaintiff is that Chinam Suryya Narayan Murti, the owner of 'S. S. Leela-vati', is permanently domiciled in India and is a citizen of the Union of India. That admission is also recorded in the proceedings of this suit. What is admitted in paragraph 3 of the plaintiff's petition is that Chinam Suryya Narayan Murti, the owner of 'S. S. Leelavati', carried on and still carries on business under the name and style of 'Andhra Steamship Company' at No. 397 T. H. Road, Madras and that such Steamship is regis-tered in the Port of Madras.

In the affidavit used by Chinam Suryya Narayan Murti it is said in support of his allegation of permanent domicile in and citizenship of India that he is a voter and he has exercised his right of franchise at the last Election for Parliament as well as for the Madras Legislative Assembly. The admission of the learned counsel for the plaintiff on the point of Murti's Indian domicile, therefore, makes it unnecessary to take any evidence on this point. I may also state here that neither in the plaint nor in the petition for arrest of the ship was any allegation made by the plaintiff that the defendant was not of Indian domicile. These are all the facts that need be stated for deciding the issue raised in this controversy.

4. A brief reference, however, to the interlocutory proceedings in this suit will not be out ofplace before taking up the discussion of the pointof Admiralty Law and this High Court's jurisdiction thereunder. The plaintiff moved an application on petition in the Admiralty Jurisdiction ofthis Court before the learned Vacation Judge. The application was for a Writ of Arrest and seizure by the Marshal of this Court to seize and detainand arrest the said vessel 'S. S Leelavati' lying in the Port of Calcutta on the river Hopghly. An Order was also asked for in that application for furnishing security by the defendant for the sum of Rs. 33,041-15-3 being the claim in the suit and the other incidental relief of injunction restraining the defendants, their servants and agents fromremoving the vessel from the Port of Calcuttaduring the hearing of the suit.

On 25-9-1953 the plaintiff moved this application and obtained the order from the learned Vacation Judge for arrest and seizure of the ship. This order however also directed notice of this application to owner of the vessel to snow cause against the arrest by 30-9-1953 during the Vacation when the application was ordered to appear on the Cause List. Pursuant to this order 'S. S. Leelavati' was duly arrested and seized by theMarshal of this Court. The application havingbeen made returnable during the Vacation on 30-9-1953 duly appeared on the Cause List. On, that date the application was by consent adjourned till the 6th October, 1953 in the Vacation with leave to discharge the cargo in the meantime and payment of the daily charges of the Marshal.

When the application again appeared on the List on 6-10-1953 an interim order was made continuing the arrest of the Ship till the 'final disposal of the application' with liberty to the defendant to get the Ship released in the meantime, on furnishing security to the satisfaction of the Registrar for the entire claim of the petition. The order also provided that in case it was decided finally on the application that this Court did not have jurisdiction, then the security would stand cancelled. The defendant, however, did not furnish security as aforesaid with the result that the ship has continued to be under arrest. With that order the application was adjourned till after the Vacation. The matter now comes up before me as exercising the Admiralty jurisdiction of this Court for final disposal.

5. By consent of counsel, appearing on either side, no evidence is given in this case at this stage and by similar consent the only point urged on behalf of the defendant is that this Court has no jurisdiction to direct the arrest of the Ship on the facts I have stated above. Its effect is that the Motion is treated as a suit because the decision on the point of jurisdiction on this Motion if it goes against the plaintiff will dispose of the suit, although in case the point is found in favour of the plaintiff, the further question of the amount will remain to be decided on evidence.

6. The Admiralty Jurisdiction in this High Court is an ancient inheritance. Clause 26 of the Charter of 1774 defines the Admiralty Jurisdiction of the Supreme Court. It made the Supreme Court of Judicature, at Port William in Bengal, the Court of Admiralty, in and for the provinces, countries or districts, of Bengal, Behar and Orissa, and all other territories and islands adjacent thereunto. It gave power to the Supreme Court to hear, examine, try and determine and take cognizance of all causes, civil and maritime, and 'all pleas of contracts', and

'all matters and contracts which in any manner whatsoever relate to freights or money due for ships hired and let out, transport-money, maritime, usury or bottomry or to extortions, trespasses, injuries, complaints, demands, and matters, civil and maritime, whatsoever, between merchants, owners and proprietors of ships and vessels, employed or used within the jurisdiction or between others contracted, done, had, or commenced, in, upon or by the sea, or public rivers, or ports.'

This clause describes the admiralty jurisdiction of the Supreme Court

'as the same is used and exercised in that part of Great Britain called England, together with all and singular their incidents, emergents and dependencies annexed.'

This inheritance was continued by Clause 31 of the Letters Patent of 1862 which in its turn was continued by Clause 32 of the Letters Patent of 1865. Section 106 of the Government of India Act, 1915, continued the existing Admiralty Jurisdiction in the High Courts in India. It was preserved by Section 223 of the Government of India Act, 1935 and its adaptations. Finally, Article 225 of the Constitution of India lays down that the jurisdiction of any existing High Court shall be the same as immediately before the commencement of the Constitution subject, of course, to the provisions of thisConstitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution. No such Legislature since the Constitution has made any law touching the Admiralty Jurisdiction of this Court on the point under consideration. That is a brief account of how the present High Court in Calcutta is vested with the Admirely Jurisdiction. As this survey will show the fens erige of this High Court's Admiralty Jurisdiction remains Clause 26 of the Charter of the Supreme Court of 1774.

7. In order, therefore, to determine the nature, scope and extent of Admiralty Jurisdiction of the High Court in Calcutta, the words of Clause 26 of the Charter of 1774 are material. As already indicated, Clause 26 of the Charter 1774 in short gives the jurisdiction of the Admiralty

'as the same is used and exercised in that part of Great Britain called England together with all and singular their incidents.'

This again makes it necessary to examine the basis and scope of the Admiralty Jurisdictionexercised by the Court of Admiralty in England. The Admiralty Jurisdiction in England is of great antiquity. In England, the Court of the Lord High Admiral as a Corollary to the criminal jurisdictionwhich it possessed, began to hear disputes also in civil matters connected with the sea and gradually usurped the jurisdiction over cases arising in inland tidal waters.

Then began the conflict between the usurpingauthority of the Court of the Lord High Admiral and the existing Courts of Common law. As a result of this encroachment on the province of the Courts of Common Law, two statutes were passed in the reign of Richard II to limit the jurisdictionof this new authority. In Article 93, Vol. I of Hail-sham's Edition of Halsbury's Laws of England it is expressly pointed out

'the civil jurisdiction of the Admiralty continued within the limits laid down by the statutes or Richard II, but its exercise from the reign of Elizabeth I to the reign of Charles II involved the Admiralty Court in a long struggle with the superior Courts of Common Law'.

The ultimate result of this conflict led to the Civil jurisdiction of the Admiralty Court being considerably narrowed and curtailed in practice and it appears that the jurisdiction of the Admiralty was confined to (1) collisions between the ships, (2) injurious acts committed on the highseas outside the body of any county, (3) salvage service rendered to property on the high seas and between high and low water mark, but otherwise not within the body of any county, (4) droits of Admiralty, (5) possession of ships where no title was in question, (6) bottomry, so called because money had been lent on the security of the bottom of the ship, (7) respondentia bonds on cargo, (8) claims of seamen's wages where there had been no pirates, (9) jurisdiction over the goods of pirates and goods partially taken and (10) suits against masters of ships for assaults and battery committed on the high seas where the complainants were officers, seamen or passengers of the ships. From this list it will appear that a claim for necessaries supplied to a ship did not form an expressly mentioned part of Admiralty jurisdiction in England. How far a claim for necessaries supplied to a ship came within the Admiralty Jurisdiction, therefore, requires a special treatment.

8. Although from time to time the Court of Admiralty in England claimed a jurisdiction over actions for necessaries, the validity of such claim was debatable. This doubtful legal position is cautiously described in Article 93 of the First Volume of Hailsham's Edition of Halsbury's Laws of England

'actions in respect of necessaries supplied on the high seas and for towage on the high seas seem also to have been witnin the jurisdiction, but seldom, if ever, occurred in practice'.

In the Fifth Edition of Roscoe's Admiralty Jurisdiction and Practice at page 202 the legal position is clarified by the statement

'Although from time to time the Court of Admiralty claimed a jurisdiction over actions for necessaries, it was decided once for all in --'William Hodges v. Jacob Sims', (1835) 9 Knapp 94(A) that it did not possess it. By the Admiralty Court Act, 1840 (3 & 4 Vict., Chap. 65, Section 6) the Court of Admiralty acquired jurisdiction over claims for necessaries supplied to any foreign ship or sea-going vessel'.

It is unnecessary, however, to speculate here whether the Court of Admiralty in England originally had or had not jurisdiction in the case of necessaries supplied to a ship because the legal situation was made quite clear not only by the Admiralty Court Act, 1840, but subsequently also by the Admiralty Court Act, 1861 (24 Vict., Ch. 10).

9. In its Preamble this Admiralty Court Act of 1861 after having said, 'it is expedient to extend the jurisdiction and improve the practice of the High Court of Admiralty of England', proceeds to provide in Section 5 of this Admiralty Court Act, 1861 :

'The High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the Ship belongs, unless it is shown to the satisfaction of the Court that at the time of the Institution of the Cause no Owner or Part Owner of the Ship is domiciled in England or Wales : Provided always, that if in any such Cause the Plaintiff do not recover Twenty Pounds he shall not be entitled to any Costs, Charges, or Expenses incurred by him therein, unless the Judge shall certify that the Cause was a fit one to be tried in the said court.'

10. On this point the observations of Blackburn, J. in his judgment in 'Ex Parte Michael', (1881) 7 QB 658 at p. 660 (B) are illuminating and that learned Judge elucidates the law in these terms :

'The rule of the Common Law was that the Court of Admiralty had no jurisdiction over a cause for necessaries supplied to a ship at home : that belonged to the Courts of Common Law. Then it was enacted that the Court of Admiralty should have jurisdiction over a claim for necessaries supplied to any ship elsewhere than at the Port to which the ship belongs. That seems clearly enough to enact that the Admiralty Court shall have jurisdiction when the necessaries are supplied in England, just as if they have been supplied abroad; but then it is added, unless it is shown to the Court that the owner be domiciled in England; but that must be alleged and proved to the satisfaction of the Court before judgment; and it is too late afterwards.'

No question of point of jurisdiction being taken too late arises in this case, because the point is taken at the first opportunity on the interlocutory application before judgment in suit and immediately after the plaintiff obtained the ex parte order for arrest of the Ship.

11. This, therefore, is the Admiralty Jurisdiction in England with regard to any claim for necessaries. It postulates two requirements, both of which arc indispensable to attract the Admiralty Jurisdiction. The first postulate is that the supply to the ship must be elsewhere than in the port to which the ship belongs. This is said to be satisfied in the present case before me because the ship in question belongs to the Port of Madras and not to the Port of Calcutta where the supply of necessaries was made. The second postulate under Section 5 of the Admiralty Act, 1861, is that the owner or part owner of the ship must not be domiciled in England or Wales. It appears to me that the principle of domicile is a basic foundation of the jurisdiction of the Admiralty Court in England in a claim for necessaries. The question, therefore, arises here how under that principle those words 'domiciled in England or Wales' in Section 5 of the Admiralty Court Act, 1861 are to be applied in India.

12. For this purpose, it is necessary to refer to yet again another English Statute, namely, the Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict., Chap. 27). This was an Act which according to its Preamble was passed to amend the law respecting the exercise of Admiralty Jurisdiction in Her Majesty's Dominion and elsewhere out of the United Kingdom. Section 2(1) of this Act provides :

'Every Court of law in a British possession, which is for the time being declared in pursuance of this Act to be a Court of Admiralty, or which if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a Court of Admiralty, with the jurisdiction in this Act mentioned, and may for the purpose of that jurisdiction exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such Court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty. Where in a British possession the Governor is the sole Judicial authority, the expression 'Court of Law' for the purposes of this section includes such Governor.'

On this basis the High Court in Calcutta having regard to its jurisdiction inherited from the Supreme Court became the Colonial Court of Admiralty. By the provisions contained in Section 2, Colonial Courts of Admiralty (India) Act, 1891, High Courts of Calcutta, Bombay, Madras and the then District Court of Karachi were expressly declared the Colonial Courts of Admiralty.

13. The next sub-section of the English Act of 1890 is also important in this connection. Section 2(2) of the Colonial Courts of Admiralty Act, 1890 provides :

'The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, be over the like places, persons, matters, and things, as the Admiralty Jurisdiction of the High Court in England, whether existing by virtue of a Statute or otherwise, & the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that Court to international law and the Comity of Nations.'

This provision makes it clear that the Admiralty jurisdiction of this High Court in Calcutta is the same as the Admiralty jurisdiction in the High Court in England. Mr. Justice Panckridge took the same view on this point in -- 'Bengal Assam Steamship Co., Ltd. v. Shankar Maru' : AIR1937Cal122 .

14. The crux of the problem of interpretation presented in this case before me arises, however, on the language of proviso (a) to Section 2 of the Colonial Courts of Admiralty Act, 1890. This proviso states :

'Any enactment in an Act of the Imperial Parliament referring to the Admiralty jurisdiction of the High Court jn England, when applied to a Colonial Court of Admiralty in a British possession, shall be read as if the name of that possession were therein substituted for England and Wales.'

By Section 18(2) of the Interpretation Act, 1889 (52 & 53 Victoria, Chapter LXIII) the words 'British possession' as mentioned in the proviso (a) of the Colonial Courts of Admiralty Act, 1890 mean

'any part of Her Majesty's Dominions exclusive of the United Kingdom, and where parts of such Dominions are under both a Central and local Legislature, all parts under the Central Legislature shall for the purposes of this definition be deemed to be one British possession'.

15. As the previous Government of India Acts continuing the Admiralty Jurisdiction conferred on. this Court by the Charter of 1774, were Acts of the Imperial Parliament, the problem of construction here presented in this suit is that by reason of proviso (a) to Section 2 of the Colonial Courts of Admiralty Act, 1890 the words 'domiciled in England or Wales' in Section 5 of the Admiralty Court Act, 1861 have to be read as 'domiciled in the Union of India' now under the Constitution of India. That is the obvious and prima facie import of the words 'all parts under the Centra] Legislature shall for the purposes of this definition be deemed to be one possession.' That meaning can only be replaced if there is anything repugnant to the context showing 'a contrary intention', an expression used in the opening words. of Section 18 of the Interpretation Act of 1889.

In the case of -- 'Madras Steam Navigation, Company, Ltd v. Shalimer Works, Ltd.', AIR 1915. Cal 681 (D) Chief Justice Jenkins deciding an appeal from a suit on the Original Side and dealing with a cognate subject observed in the year 1914 at page 684 of the Report :

'British India and Burma thus take the place of England and Wales for the purposes of this case.'

In the present context under the Constitution of India on a parity of reasoning followed by Chief Justice Jenkins the Union of India takes the place' of England and Wales for the purpose of the suit now before me.

16. I have not been able to find any reported Indian decision on this point nor was any such decision referred to at the Bar in the course of argument. Reference was made at the Bar to the case of -- 'AIR 1915 Cal 681 (D)'. That was a decision of the Court of Appeal from a Judgment in a suit instituted not in the Admiralty Jurisdiction but in the ordinary original civil jurisdiction of this Court. That was an aftermath of the dismissal of a suit in the Admiralty Jurisdiction against a vessel by the name 'Clan Mackintosh' by Chitty, J. on the ground of Jurisdiction. The decision in -- '42 Cal 85: AIR 1915 Cal 681 (D)', was given in a suit brought in the ordinary original Civil jurisdiction of this Court by the Owner of' the ship after its release by Chitty, J. for damages for the Ship's wrongful arrest without jurisdiction and without reasonable or probable cause. The Admiralty action was commenced for a claim for necessaries supplied to the ship. There is noreported judgment of Chitty, J. in the Admiralty Action but in the report of the judgment delivered in the suit of the ordinary original civil jurisdiction of the Court, the learned trial Judge Fletcher, J. made certain observations which are to be found at page 92 which appear to be the inspiration of Mr. Das's argument. Fletcher, J. observed :

'It is said that this Court has no jurisdiction although the owner resides in any other part of British India to arrest the ship. I am not prepared to say that is so. It is not easy to read the provisions of this Statute (Colonial Court of Admiralty Act, 1890) if you are to read the British possession as being the whole of British India and various different High Courts. However, it is unnecessary in this case in my opinion to determine that point.'

17. It was unnecessary in that case because the case which Fletcher J. was trying was not one in the Admiralty Jurisdiction at all. In the Court of Appeal although Jenkins, C. J. and Stephen, J. dismissed the appeal there is an observation of Jenkins, C. J. which does not appear to support the doubts expressed by Fletcher J. Jenkins, C. J. construing the Colonial Courts of Admiralty Act, 1890 observed at page 106 of that report which I have already quoted, 'British India and Burma thus take the place of England and Wales for the purposes of this case.'

18. Mr. Das appearing for the plaintiff has submitted before me that because in the Indian Union at present there are at least three different and separate Courts of Admiralty, namely, the Bombay High Court, the Madras High Court, and the Calcutta High Court each exercising Admiralty jurisdiction under its respective Charters and Letters Patent, the proper meaning to be attributed to the words 'domiciled in England or Wales' in Section 5 of the Admiralty Court Act, 1861, read with Section 2(2) of the Colonial Courts of Admiralty Act, 1890 and the Interpretation Act of 1889 should be such as not to create any conflict between these different Courts of Admiralty in India. The argument thus put forward is a very able argument and requires great consideration.

19. The force of the argument is illustrated by pursuing the results that will follow if the words 'domiciled in England or Wales' are construed as domiciled in the Indian Union. According to Mr. Das, the result will be that the High Court of Calcutta in its Admiralty Jurisdiction will in that event be empowered to arrest ships at ports in Bombay or Madras High Courts (sic). It is, therefore, envisaged that there may be conflict of jurisdiction between these different courts of Admiralty in India if the interpretation of the words 'domiciled in England or Wales' be domiciled in the Indian Union. It is, on that ground, contended that a construction which leads to conflict between Courts of Co-ordinate jurisdiction should be avoided. The reasonableness of this argument is unquestioned.

20. The next step in the enquiry is that if the words 'domiciled in England or Wales' are not to be interpreted as domiciled in the Indian Union, what then is going to be the interpretation of these words. Mr. Das's submission on this point is that the words 'domiciled in England or Wales,' should be interpreted to mean as domiciled within the Admiralty Jurisdiction of the respective Courts of Admiralty in Calcutta, Madras or Bombay. He has contended that the words 'domiciled in England or Wales' should be construed in the light of the basic fact that there was one Court of Admiralty in England and Wales. It is, there-fore, suggested that the word 'domiciled' should not be taken in its narrow technical sense but only as indicative of an area co-terminus with the area of jurisdiction of the Court of Admiralty.

The significance of the argument appears from the result that follows if that view is accepted. The result then is that if the words 'domiciled in England or Wales' can be interpreted to mean domiciled within the jurisdiction of the Court of Admiralty in England and Wales then those words When transplanted in India would mean domiciled within the jurisdiction of the Court of Admiralty of the High Court of Calcutta. In support of this argument, it is said that Section 18(2) of the Interpretation Act of 1889 read with proviso (a) to Section 2 of the Colonial Courts of Admiralty Act, 1890 does not stand in the way because Section 18 of the Interpretation Act uses the well known words 'unless the contrary intention appears'. It is argued that the contrary intention does appear here to prevent the application of Section 18(2) of the Interpretation Act because construction in accordance therewith will lead to the conflict of jurisdiction between the different Courts of Admiralty in India, such as the Bombay High Court, the Madras High Court, and the Calcutta High Court.

21. Other support is given to this argument from a variety of considerations. First, it is argued on the authority of the observations made by Sir Barnes Peacock in the privy Council decision of -- 'Susan McMullen v. Wadsworth', (1889) 14 AC 631 at p. 634 (E) that the word domicil in this context should not be understood in its strict sense. There the learned Judge observed :

'Much confusion has arisen from the use of the word 'domicil' in two different senses. Sir Robert Phillimore, in his work on the Law of Domicil (p. 17), remarked and in their Lordships' opinion correctly so, that it might have been more correct to have limited the use of the word domicil to that which was the principal domicil, and to have designated simply as residences the other kinds of domicil; but a contrary practice has prevailed, and the neglect to distinguish between the different subjects to which the law of domicil is applicable has been the chief source of the errors that have occasionally prevailed on this subject.'

In that case the Privy Council came to the conclusion that the word 'domicil' in Article 63 of the Civil Code of Lower Canada was used in the sense of residence and did not refer to international domicil.

22. The other consideration used in support of the argument is that even though there may be one Indian domicil in strictly legal sense, different domicils varying with different States in India may be conceived for certain purposes. To help the argument a reference has been made on this point to a Pre-Constitution State Statute of Bombay called the Bombay Prevention of Hindu Bigamous Marriage Act, 1946 (Bombay Act No. 25 of 1946). Particular reference is made to Section 4(b) of that Act which provides:

'Notwithstanding any law, custom or usage to the contrary, a bigamous marriage shall be void If it is contracted beyond the limits of this Province after the coming into force of this Act and either or both the contracting parties to such marriage are domiciled in this Province.'

The use of the words 'are domiciled in this Province' is taken to indicate that domicil can also be understood in certain set of circumstances as appertaining to the State. It is, therefore, said thatthere is no reason why the words 'domiciled in England or Wales' should not be construed as domiciled in the State of which the High Court of Calcutta functions as the Court of Admirlty.

23. The other consideration drawn in support of this argument is that if an Indian domicil in its strictly legal connotation is substituted for the words 'domiciled in England or Wales', then it will make the construction of sections, other than Section 5, of the Admiralty Court Act, 1861 impracticable, if not impossible. For this purpose reference is made to sections 6 and 8 of the Admiralty Court Act, 1861 where the expression 'England or wales' occurs. Section 6 of that Statute relates to claim for damages to imported cargo and gives the High Court of Admiralty in England, jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any Port of England or Wales for damages done to the goods by the negligence or misconduct or breach of contract unless it is shown to the satisfaction of the Court that at the time of the institution of the cause the Owner of the Ship was domiciled in England or Wales.

It is argued that this will again mean if the Indian domicile is substituted for those words, then the Calcutta High Court will be determining as a Court of Admiralty claims for damages for imported cargo although the cargo and the ship are at Bombay. So again it is pointed out that Section 8 of that Act gives jurisdiction to the High Court of Admiralty in England to decide all questions arising between co-owners relating to ownership, possession, employment and earnings of any snip registered in any port in England or Wales. By way of illustration on this section it is argued that if the words 'England or Wales' are to be read as 'The Union of India' then if there is a dispute between the co-owners in Bombay over a ship then one Co-owner in order to be obnoxious and harassing to other co-owners can come to Calcutta and sue them in the Admiralty jurisdiction of the Calcutta High Court, although all the other co-owners, the ship and all accounts and papers are at Bombay.

24. It will be appropriate also to notice at this stage another argument advanced by Mr. Das that the Constitution of India does nowhere lay down any definition, or requirement of one Indian domicil. It is argued first that reference to domicile that is made in Article 5 of the Constitution of India is only in the context of citizenship and, secondly, that such reference is consistent with domicil being understood as appertaining to different States in India. The language of Article 5 of the Constitution is 'every person who has his domicile in the territory of India'. It is said that that only means that a person has to have his domicil somewhere within the territory of India, but it does not mean that the Indian domicil is one. Indeed, it is argued that by Article 1(3) of the Constitution of India the territory of India is said to include the territories of the States, and therefore the words 'domicil in the territory of India' can legitimately include notions of domicil in the different States in India.

25. For these reasons, it is urged before me that the words 'domiciled in England or wales' must be understood not to create or refer to any Indian domicil and that the word 'domicil' in this context is not used in its strict sense but in the loose sense as defining the area of each Court of Admiralty in India.

26. Domicil is a legal term whose contours have often been found to be vague in jurisprudence. In England the English and the Scottish domicilesare different and therefore the argument of Mr, Das that the words 'domiciled in England or Wales' specially excluded Scottish domicil & were confined to the area of England and Wales for which there was and is one Court of Admiralty, acquires added significance. But the question nevertheless, whether, when applied to the Colonial Courts or other British possessions at that time under the Colonial Courts Admiralty Act, 1890, the same idea should be imported still remains to be decided.

The comparison between English and Scottishdomiciles is likely to be misleading because the Scottish legal system and the English legal system are very diflerent in material particulars. Behind the idea of domicil is the notion that all persons who have or whom the law deems to have their permanent home within the territorial limits of a single system of law are domiciled in the country over which the system extends and its corollary that they are domiciled in the whole of that country, although their home may be fixed at a particular spot within it. In Hailsham's Edition of Halsbury's Laws of England, Vol. VI, pp. 198-9, Article 242 this idea is forcefully brought out. Dicey in his work on Conflict of Laws propounds the same principle and the learned Editor of the 6th Editioh of that work at page 83 lays down the proposition in these terms :

'The area contemplated throughout the Rules relating to domicil is a country or territory subject to one system of law.'

Now, if the existence of 'one system of law' is a valid criterion for determining the area of domicil, then I feel that it cannot be seriously disputed today that the whole of the Indian Union should be regarded as the area of domicil wherein 'one system of law' prevails with Indian Parliament holding all residuary powers of legislation in spite of the existence of different State Statutes on specified subjects. That consideration points to a conclusion in favour of the integrity of the Indian domicil in that context.

27. Sir Barnes Peacock's observation, therefore, that the word 'domicil' is used in many contexts in a loose sense cannot be taken to cover the length of overriding the central idea of the area of the domicile being the entire area where one system of law prevails. It does not also appear to me that the appeal to pre-Constitution Bombay Statute of 1946, namely, the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 can in this context help in establishing different domiciles in diflerent States in India. There the Statute itself can be construed to have placed its own meaning on a domicile. But such notions are, in my view, inappropriate in construing the words 'domiciled in England or Wales' in the Admiralty Courts Act of 1861. As against that pre-Constitution State Statute it may be pointed out that the previous Government of India Acts of the British Parliament which regulated the constitution of the then British India did not expressly contemplate separate domiciles for separate Provinces of those times and there are many cases relating to domicile which speak of only one Indian domicile even at that time.

It is in every case, in my view, the terms of the Statute as well as its subject that should determine the meaning to be given to the word 'domicile' because the word 'domicile' itself is of many meanings in law. The Constitution of India, it is true, does not expressly lay down that there can be only one Indian domicil. Equally however the Constitution of India does not expressly recognise separate domiciles for different states in India. Itis true that Article 5 of the Constitution only refers to 'every person who has his domicile in the territory of India' which territory includes the territories of the different States. From that it does not follow necessarily that the Constitution expressly recognises different State domiciles in India, This much is clear that the Indian Constitution proceeds on the basis of one Indian citizenship.

It is not inappropriate in that context to consider that one citizenship would normally, though perhaps not invariably, favour one domicile provided the basic notion of 'one system of law' prevails in the country of which he is a citizen. One citizenship with different state domiciles may creat many incongruous situations where a citizen of India is by Constitution given the right to reside and settle in any part of the territory of India with such rights as to acquire, hold and dispose of property & to move freely throughout the territory of India and these rights are relevant in determining domicil. I am inclined to take the view that in the Indian constitutional framework one Indian domicile is more in accord with its spirit than different State domiciles. At any rate, such notion of one Indian domicile is not inappropriate in the context of Admiralty Jurisdiction which has to be decided by me in this application. The comparison in this regard with American Constitution with its different laws of domiciles and where at one stage even different citizenships in different States were possible, is therefore, in my view, unjustified in the Indian constitutional context.

28. The fear of a possible conflict between different Courts of Admiralty if the words 'domiciled in England or Wales' are interpreted to mean domiciled in the Indian Union, appears on a close analysis to be over-done. If each of the Admiralty Courts in India exercises the jurisdiction on the basis of one Indian domicile, then while in theory it is possible to say that the High Court of Bombay may happen to be exercising jurisdiction over a ship or a person in Calcutta, in practice it does not appear to me to be a situation which will hardly arise. The previously instituted proceedings in any one of these Courts of Admiralty will preclude the same matter being subsequently agitated by another Court of Admiralty not only by a Comity of Courts working in the Indian Union backed up now by the full faith and credit clause of the Constitution contained in its Article 261, but also by the procedure of stay of proceedings in courts of concurrent jurisdictions dealing with the same subject-matter and the powers of injunction relating to chartered High Courts in case of abuse of the choice of forum. By such means the conflict can always be avoided.

29. The cogent answer to the argument of fear of possible conflict between these different Courts of Admiralty in a case of necessaries supplied to a Ship lies in the fundamental notion adverted to by Blackburn, J. and embodied in the English Admiralty Court Act, 1861. This notion is clearly expounded by Roscoe in the 5th Edition of Admiralty Jurisdiction and practice 'at p. 205' in the following terms:

'To render a ship liable in an action, she must further be either a foreign ship, the owner of Which may or may not be temporarily in the same port or a British Ship, the owner of which is not shown to the satisfaction of the Court to be domiciled in England.'

The principle behind it is not far to seek. The Admiralty Jurisdiction over a claim for necessaries is a comparatively new jurisdiction in Admiralty and was specially recognised by Statute in Englandto avoid the difficulties which a supplier of necessaries normally felt in realising his claim either against the ship or the owner thereof. The difficulty of obtaining remedy where necessaries were supplied to a foreign ship and she left the Port without paying for them, was obvious. Equally obvious was the difficulty where even in the case of a domestic ship she left the Port without paying for the necessaries supplied while in Port, if the owner was not domiciled in the territory of the Court exercising jurisdiction over the Port. These basic notions are emphasised by the statutory words that the ship must be at a Port

'elsewhere than in the Port to which the ship belongs unless it is shown to the satisfaction of the Court that at the time of the institution of the cause no Owner or Part Owner of the ship is domiciled in England or Wales.'

The entire history of the evolution of Admiralty Jurisdiction is eloquent proof why such considerations were regarded as essential.

30. If the ship belonged to the Port where the necessaries were supplied, then there was no need for invoking the jurisdiction in Admiralty and the Courts of common Law Jurisdiction and the ordinary Courts of the land provided sufficient forum for adjudication of the claim for necessaries to such a ship and in a proper case even for attachment before judgment in such ordinary actions. Similarly, again, if the Owner of the ship was himself domiciled in the country where the ship was supplied with the necessaries, then the Courts of Common Law and the ordinary Courts of the land were adequate enough to grant effective remedy to the suppliers who were not paid their claims for necessaries supplied to such a ship. This being the rationale of the basis of Admiralty Jurisdiction specially recognised by Statute, there is no ground or justification to create or extend Admiralty Jurisdiction in a case of necessaries, where the ship is not foreign or where the owner of the ship is domiciled in the territory of the Courts of the land where the necessaries were supplied.

31. Now in this case before me the ship is a ship registered in the Port of Madras within the Indian Union, and the Owner of the ship is domiciled in the Indian Union and, therefore, an ordinary action for claim for necessaries in the ordinary Civil jurisdiction of the Courts of the land are available to the plaintiff. In such an action within the ordinary original civil jurisdiction, the plaintiff can even avail of Clause 12 of the Letters Patent of this High Court and if under the terms of that clause he can bring the suit with leave in this High Court, then he is competent enough to file a suit in the ordinary original civil jurisdiction of this Court and if that is not available, even then he has the ordinary courts in Madras available to him. Neither the history nor the logic of Admiralty jurisdiction permits in my view a replacement of or encroachment on the ordinary court's jurisdiction over a claim for necessaries. Nor does such history or logic permit a competition between Courts of Admiralty and Courts of Ordinary Original Civil Jurisdiction. Courts of Admiralty are courts of specific jurisdiction and if a controversy does not come within their specific jurisdiction, they cannot entertain it, and in that respect are unlike the courts of residuary jurisdiction such as the Common Law Courts or in India the Courts of ordinary original civil jurisdiction.

For these considerations, therefore, I am unable to uphold the argument that if the words 'domiciled in England or Wales' are interpreted to mean domiciled in the Indian Union then that interpretation will lead to conflict between thedifferent Courts of Admiralty in Bombay, Madras and Calcutta. It is in my opinion based on an unjustified apprehension and the possible conflict feared by that interpretation can never arise if the limits of the Admiralty jurisdiction are observ-ed. In my judgment the emphasis in Admiralty jurisdiction dealing with a claim for necessaries is not so much territorial as objective.

32. The controlling reason in such a case is provided by the consideration that when the ordinary Civil Courts of the territory within which one system of law prevails are open for granting a relief in a claim for necessaries supplied to a ship, as for instance a suit in this case for necessaries will He in the ordinary Courts either in Madras or even here, if it is otherwise a fit case for leave under Clause 12 of the Letters Patent for this High Court or Section 20 of the Civil Procedure Code for other Courts in this State, then the plaintiff cannot be allowed to invoke the Admiralty Jurisdiction which is a special jurisdiction of this High Court. This conclusion appears to me to be in keeping with the history of the Admiralty Law so far as the claim for necessaries is concerned.

The English Admiralty Court Act of 1840 which introduced for the. first time the claim for necessaries as a part of Admiralty Jurisdiction in England made it quite clear that the ship had to be a foreign ship and the reason for that was that otherwise there was no relief open or available in the ordinary courts of law in the country where the' necessaries were supplied. The subsequent alteration of the Admiralty Law in 1861 by the English Admiralty Court Act, 1861 also appears to have a restricted idea when it says that the supply of necessaries has to be made at a port to which the ship does not belong & the owner of the ship must not be domiciled in England or Wales. It is plain therefore that it was never intended that the Admiralty Court should have an unqualified jurisdiction over all claims for necessaries.

The reason for excluding these two cases from Admiralty Jurisdiction is that in either case where the ship is registered at the port where the supplies were made, or the case where the owner of the ship himself is domiciled in the country, then the supplier can seek his remedy by the ordinary processes of law in the ordinary civil courts of the land. Applying that principle of exclusion to the present context, I am of the opinion that as here the supplier can sue in the ordinary civil courts of the land where the same system of law prevails, this Court cannot exercise its Admiralty Jurisdiction to entertain such claim.

33. The suit, therefore, fails on the point of jurisdiction and is dismissed with costs.


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