# Karanpura Dtvelopment Co. 1 Ltd v. The Commissioner of lncomr•tax, fVrst BengtJ.[ l!ida,yatullah ]

- **Citation:** [1962] 3 S.C.R. 391
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** P. B. Ga.Tendragadkar, K. Subba Rao, · M. HmAYATULLAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/karanpura-dtvelopment-co-1-ltd-v-the-commissioner-of-lncomr-tax-fvrst-bengtj-l-2452
- **Pages:** 21

## Headnote

Legal Represenfative-~-J.lot resident u,ithin court'8 jurisdic ..
•
tion and not appearing-Judgment, if uinding-Pri,.ate International
Law-Applicahility-Degatees
under will-If
legal
representati'.ves of deceased defendant-'}Jstate', if means uiliole
estate-Code of
Civil
Procedure,
1908 (A.ct V
of 1908),
8.2 (11).
During the pendency of two connected suits for recovery
of money filed by the appellant in the Hyderabad Court one of
the respondents died and his som, daughters and grand daughters were joined in the suits as his legal representatives as
>,
holding different pieces of his property under a deed of settlement and a registered will executed by him. The suits '"''ere
decreed by the said court but as the decretal money could not
he realised in full the appellant filed the present suit for the
balance in the Madras High Court on the basis of the judgments of the Hyderabad Court
At the time of filing, the
previous suits \Vere comi:-etent and within the jurisdiction of the
Hyderabad Court as the deceased respondent was a resident of
'
Hyderabad but after his death at the relevant time his legal
representatives v.•ere not resident5 of Hyderabad.
The resjJon~
dents contended infer
alia that they did not submit to the
jurisdiction of the Hyderabad Court as it had no jurisdiction
over them and the foreign judgments of that ·Court \Vere not
binding on them.
The high Court held that under the rule of
private international law all personal actions must be filed in
the courts of the country where the defendant resided and as
the legal representatives were non-residents of Hyderabad the
... ,.
decrees passed against them were invalid.
Held, that the rule of private international la\V could not
be applied to a case where the suit as initially filed was competent and the court before whiCb it was filed was competent to
1961
-Karanpura
Dtvelopment Co. 1
Ltd.
v.
The Commissioner
of lncomr•tax,
fVrst
BengtJ.[
l!ida,yatullah ].
1961
Au:ust 31.
•
JS61
Th, . .fndhra Bank
I.rd.
v.
R. Sri1,i1·•,c111
•
3!l2
SGPREllfE COVRT REPORTS
[l!lli2J
try it. If during the pendenr.y of the suit the defendant died
and hi-; non·rec;i<lent legal representatives \\'Cr(' brought on the
record to defend the suic on his behalf to the extent of the
assets of the decea~ed held hy thctn, the jurisdiction of the court
c011tinued
unaffect("d
a11d tlir
competence of thrsuit as
or-iginallr filrd remaine•I unirnpaircd.
Srmlar G1ml11al Singh '" Tl" Raja of Faridkot•, (1894)
I .. R. 211. A. Iii, Tra'"'" v. l!e/l,y ,1951, P. 246, Du11n• '"
Saban [1955] P. Jill, )lountbattm v. Jfou11//,atbn, ~1959j P. 43,
Dulle• v. Vidln, I 1951 r I Ch. 842, Sc/,;/,_</,y '" ll'eatinholz,
11870) LR. 6 Q. ll. 15'1 and Ema11ue/ '" Symon, 19081 I K.B.
JO?, r("ferred to.
Kanrhamalai Pother'" Ry. Shahaji Rajah Saheb, (1916)
1.1..R. 5'J Mad. 461 and Erara ,. Sidramappo Pa .. are ( 1897)
I.LR. 21 Born. 424, not applicable.
Under s. 2 (11) of the Code of Civil Precedure the clause
'a P'rson \\·ho in la\\· reprt>scnts the e~tate of a deceased person,
1nust inrlude legatees under \.\'ills and tr.at "Estate" ce:.unot
necessarily n1ean the \Vliole of the estate .
.Yate.oa S'IS/riga/ '" Alam,/u Ar.hi, (19'JO) I M. LJ. 4i6,
disappr01ed.
C1nL APPELi.ATE JvmsmcTI0:-1 : Civil Appeal
Ko. f>08of1958.
Appeal fr«m th<' jmlgmcnt and decree tlatecl
.Tuh·27, l!l51,ofthc l\faclrn~ Hirrh Court in A.S.
Xos. l'i2 and l\H of l\l47.
·
A. Rrrngmwll1am Chelty, C. F. Xarasirnhmo,
A, J'. Rangam ancl T. 8at11c111arayar1a, for the appellant.
A. I'. Viswanatha Sastri and S. Venk<1lf1krishrirrn,
for re~pondents Xos. I to 3.
R. Ganapathy l!fe" ancl T. K. Smulrim Ramcm,
for respondents X 08. ;i to 9.
R. Gariapath11 Iyer,
Thiaga.rajan
and R. G.
r:v11alakrismum. for respondents X os. 11 and I 2.
1961. August 31. The Judgment of the Court
was delivered by
GAJKSDHAGADKAH, J.-This appeal has been
brought to this Court with a certificatn issued Ly
the Madras High Court under Art. 133(1}(a) of the
Constitution and it arises out of a suit

## Text

_Characters 0–39,581 of 42,920. This is a partial read: ask again with offset=39581 for what follows._

3S.C.R.
SUPREME COURT REPORTS
391
"" ~ the High Court rightly
answered the question
against the assessee Company.
•
In the result, the appeals fail, and are dismissed with costs.
Appeals dism iMed.
THE ANDHRA BANK LTD.
v.
R. SRINIVASAN AND OTHERS.
(P. B. GA.TENDRAGADKAR, K. SUBBA RAO and
·
M. HmAYATULLAH, JJ.)
Legal Represenfative-~-J.lot resident u,ithin court'8 jurisdic ..
•
tion and not appearing-Judgment, if uinding-Pri,.ate International
Law-Applicahility-Degatees
under will-If
legal
representati'.ves of deceased defendant-'}Jstate', if means uiliole
estate-Code of
Civil
Procedure,
1908 (A.ct V
of 1908),
8.2 (11).
During the pendency of two connected suits for recovery
of money filed by the appellant in the Hyderabad Court one of
the respondents died and his som, daughters and grand daughters were joined in the suits as his legal representatives as
>,
holding different pieces of his property under a deed of settlement and a registered will executed by him. The suits '"''ere
decreed by the said court but as the decretal money could not
he realised in full the appellant filed the present suit for the
balance in the Madras High Court on the basis of the judgments of the Hyderabad Court
At the time of filing, the
previous suits \Vere comi:-etent and within the jurisdiction of the
Hyderabad Court as the deceased respondent was a resident of
'
Hyderabad but after his death at the relevant time his legal
representatives v.•ere not resident5 of Hyderabad.
The resjJon~
dents contended infer
alia that they did not submit to the
jurisdiction of the Hyderabad Court as it had no jurisdiction
over them and the foreign judgments of that ·Court \Vere not
binding on them.
The high Court held that under the rule of
private international law all personal actions must be filed in
the courts of the country where the defendant resided and as
the legal representatives were non-residents of Hyderabad the
... ,.
decrees passed against them were invalid.
Held, that the rule of private international la\V could not
be applied to a case where the suit as initially filed was competent and the court before whiCb it was filed was competent to
1961
-Karanpura
Dtvelopment Co. 1
Ltd.
v.
The Commissioner
of lncomr•tax,
fVrst
BengtJ.[
l!ida,yatullah ].
1961
Au:ust 31.
•
JS61
Th, . .fndhra Bank
I.rd.
v.
R. Sri1,i1·•,c111
•
3!l2
SGPREllfE COVRT REPORTS
[l!lli2J
try it. If during the pendenr.y of the suit the defendant died
and hi-; non·rec;i<lent legal representatives \\'Cr(' brought on the
record to defend the suic on his behalf to the extent of the
assets of the decea~ed held hy thctn, the jurisdiction of the court
c011tinued
unaffect("d
a11d tlir
competence of thrsuit as
or-iginallr filrd remaine•I unirnpaircd.
Srmlar G1ml11al Singh '" Tl" Raja of Faridkot•, (1894)
I .. R. 211. A. Iii, Tra'"'" v. l!e/l,y ,1951, P. 246, Du11n• '"
Saban [1955] P. Jill, )lountbattm v. Jfou11//,atbn, ~1959j P. 43,
Dulle• v. Vidln, I 1951 r I Ch. 842, Sc/,;/,_</,y '" ll'eatinholz,
11870) LR. 6 Q. ll. 15'1 and Ema11ue/ '" Symon, 19081 I K.B.
JO?, r("ferred to.
Kanrhamalai Pother'" Ry. Shahaji Rajah Saheb, (1916)
1.1..R. 5'J Mad. 461 and Erara ,. Sidramappo Pa .. are ( 1897)
I.LR. 21 Born. 424, not applicable.
Under s. 2 (11) of the Code of Civil Precedure the clause
'a P'rson \\·ho in la\\· reprt>scnts the e~tate of a deceased person,
1nust inrlude legatees under \.\'ills and tr.at "Estate" ce:.unot
necessarily n1ean the \Vliole of the estate .
.Yate.oa S'IS/riga/ '" Alam,/u Ar.hi, (19'JO) I M. LJ. 4i6,
disappr01ed.
C1nL APPELi.ATE JvmsmcTI0:-1 : Civil Appeal
Ko. f>08of1958.
Appeal fr«m th<' jmlgmcnt and decree tlatecl
.Tuh·27, l!l51,ofthc l\faclrn~ Hirrh Court in A.S.
Xos. l'i2 and l\H of l\l47.
·
A. Rrrngmwll1am Chelty, C. F. Xarasirnhmo,
A, J'. Rangam ancl T. 8at11c111arayar1a, for the appellant.
A. I'. Viswanatha Sastri and S. Venk<1lf1krishrirrn,
for re~pondents Xos. I to 3.
R. Ganapathy l!fe" ancl T. K. Smulrim Ramcm,
for respondents X 08. ;i to 9.
R. Gariapath11 Iyer,
Thiaga.rajan
and R. G.
r:v11alakrismum. for respondents X os. 11 and I 2.
1961. August 31. The Judgment of the Court
was delivered by
GAJKSDHAGADKAH, J.-This appeal has been
brought to this Court with a certificatn issued Ly
the Madras High Court under Art. 133(1}(a) of the
Constitution and it arises out of a suit (0.8.No. 83
of 1945) filed by the appellant the Andhra Bank
•
·-
3S.C.R.
SUPREME COURT REPORTS
393
>
"-
Limited against the twelve respondents. This suit
was based on two foreign judgments. Exs. P. 1
and P.3, which had been obtained by the appeallant against the said respondents in Hyderabad.
Respondent I is the son of Raja Bahadur Krishnamachari (hereafter called Raja Bahadur) who died
in March, 1943. Respondent 1 and his father were
residents of Hyderabad. Raja Bahadur was practising as an advocate in Hyderabad and subsequently
he was appointed the Advocate-General. In September, 1935, respondent I was indebted to the
appellant in the sum of Rs. 14,876-3-7 in respect
of an overdraft account. In May, 1938, he became indebted to the appellant in the sum of
Rs. 8,217-11-6 in respect of his borrowings on a pledge
~
of sanitary-ware goods. Raja Bahadur had executed
a letter of guarantee (Ex. P-18) in January, 1932
whereby he guaranteed the repayment of monies
borrowed
by respondent 1 up to the limit of
Rs. 20,000. As the amounts due from respondent l
remained unpaid the appellant had to institute two
suits in the Hyderabad High Court for their recovery. These suits were numbered 4 7 and 53 of Fazli
~
1353.
After they were filed in the said High Court
they were transferred to the City Civil Court and
renumbered as Suits Nos. 62 and 61 of Fazli 1353.
Whilst the suits were pending Raja Bahadur who
had been impleaded to the suit along with respondent l died. "Thereupon the appellant joined the
r
present respondents 2 to 12 in those two suits M
legal representatives of Raja Bahadur on the
ground that they were in possession of different
pieces of his properties under a settlement deed of
1 !l40 and a registered will executed by him on
August 28, 1942 (Ex. P. 7).
In both the snits the
appellant obtained decrees with costs on October, 5,
l !H4. The said decrees directed respondent 1 to pay
the whole of the amount claimed by the appellant
~", ag<tinst him and respondents 2 to 12 to pay Rs. 20,000
which was the limit of guarantee executed by
1961
The Andhra Bank
Ltd.
v.
R. Srinivasan
Gajendragadkar J.
19~/
I lu :lruihra Ban}.;
ltd.
v.
fl. SrinitasClll
Gnj1rulratadkar J.
394
SUPREME COURT REPORTS
[1962]
Raja Baha.dur. All the respondents were directed ¥
to pay interest at 3 per cont, on the amount due
against them. \Vhilst the suits were pending the
goods pledged in Suit No. 62 were auctioned and
the sale proceeds realised which amounted to
Rs. 4,232-l · 7 w iro given credit for whilst tho Court
passed the decrees in the said suits. According to
the appellant an amount of Rs. 27 ,923.6-5 was still
due on the said decrees and so in the present •
suit the appellant claimod from respondent I tho
whole of tho said amount and from respondents
2 to 12 Rs. 20,000 with interest and costs.
Respondent 2 is the Hon of Raja Bahadur and
respondenta 6 to 9 are his minor sons. Respondents
:i, 4 and 5 aro the sons of respondent 1. Rcspon·
dent IO is the daughter of Raja Bahadur while res· ,
pondents 11 and 12 are his grand daughters through
his two daughters. Respondent 2 for himself and
as guardian of his minor sons resisted the appollant's claim and contended that the Hyderabad
Courts had no jurisdiction over them and therefore
the decrees paBBed by the City Civil Court was
without jurisdiction. They also alleged that they .;.
had not been berved with notice of suit and had not
submitted to tho jurisdiction of tho City Civil Court
Respondent I <lid not resist the suit but his sons
did.
They alleged that they were not the legal
representatives of Raja. B'lhadur and had been im·
properly added as parties to the Hyderabad suit.
They joiucd reapondonta 2 and 6 to 9 in their contention that the Hyderab:id Court was not a Court
of competent jurisdiction and they pleaded that
the foreign judgments had not been based on the
merits of the case. RPspondents lO to 12 filed
similar picas.
On these pleadings the learned trial judge
framed five principal issues. He held that the City
Civil Court of Hyderabad h11d jurisdiction to try. "'
the suits and that the contesting respondcnta were
bound by tho decrees passed in the said suits. He
3 S.C.R.
SUPREME COURT REPORTS
395
,.
.""' also found that the respondents who had been
impleaded in the suits as legal representatives of
the deceaserl Raja Bahadur were his legal represen·
tatives in law and had been properly joined. The
other issues framed by the trial court in respect of
the other contentions raised by the respondents
were also found against them. It is, however, un·
neceesary to refer to those issues and the findings
~ thereon. In the result a decree was passed in
favour of the appellant for the amounts respectively
claimed by it against respondent 1 and against the
assets of Raja Bahadur in the hands of respondents
2 to 12 with interest at 3 per cent. per annum
from the date of the plaint till the date of realisa·
tion.
The respondents were also directed to pay
'"
the costs of the appellant.
•
Against this decree two companion appeals
were filed in the High Court at Madras. Civil Appeal
No. 172 of 1947 was preferred by respondents 3 to 5,
whereas Civil Appeal.No. 194of1947 was preferred
by re8pondent 2 and his sons respondents 6 to 9.
It was urged by the two sets of respondents in
their two appeals that the trial court was in error
_,. in holding that the Hyderabad Court was a Court
of competent jurisdiction and ·that the decrees
passed by it were valid. It was also urged that the
decrees in question were contrary to natural justice
and that respondents 2 to 12 were in fact not the
legal representatives of Raja Bahadur and so the
,.
Hyderabad Court acted illegally in passing the said
;' decrees against them. The High Court has upheld
t.he first contention raised by the respondents and
has held that the City Civil Court of Hyderabad
which passed th9 decrees was not competent to try
the suits and so the decrees cannot be enforced by a
suit under s. 13 (a) of the Code of Civil Procedure.
According to the High Court the appellant had failed to prove that any of the contesting respondents
-~had submitted to the jurisdiction of the Hyderabad Court. Since the High Court came to the conclu ·
sion that the decrees were invalid it did not think it
1961
The Anclhra Bank
Ltd.
v.
R. S1inivasai1
Gajendragadkar ].
1961
Tiu Alidlua Bnn~
l.td.
v.
R . . 'frir.iuuca1
396
SlJPREME COURT REPORTS
fl962)
necessarv to consider the two other arguments .T
urgecl hy th<' rc•sponclents.
Comistentlv -il'ith its
fimlingR that the derrecs were invalfcl and had
been passed by the Hydcrabacl Court without
juriscliction the
High Court allowccl both the
appeals preferred before it by the two sets of respondents and has dismiRsed tlw appc llant's suit.
It is against. this dl'cision that th<' appellant has .,
come to this Court with a certificate issued by the
High Court.
·
The first question 'vhich foils to ho considered
in the present nppeal is whether tlw City Civil
Cnmt at Hyclcrabacl was a Court. of competent
jurisdiction when it pronounced the judgments in
the two suits filed by th<' appellant in that Court. •
Vnrler 8. 13 of the Code a foreign judgment. shall•
be conclusive as to any matter ther<'hy clircctly
adjudicated upon between the same part ic& cxcPpt
where it h:i.s nnt been pronq,unced by a Court of
competent jurisdiction. It is commonground that
when the suitR were filed in
Hydcrabacl Raja
Hahadur and responc!tmt
I
were rPsidents of
Hydorabad 11.ncl the Hyderabad Court was therefore~
compet.cnt to try tho suits at the time when they
were filccl.
Tho actions in question wcw actions
in perscmam but they were within the j11riscliction
of tho Hyderabad Court at their inception.
This
position is not disputed.
[t is nlso not seriously
disputed that re~pomlent.9 2 to 12 who were: added
as legal rcprcsent:i.tivcs of the deceased
Raja~
Bahaclur clid not r('side in Hvdernbacl at the relevant time :uHl w!'l'e foreignern • for th<' purpose of
jurisdiction. The High Court has h<'ld that unrlcr
the well established rule nf pri,·a((' international
law all personal actions must be filecl in the Courts
of the country whcrn the <lefcncla11t resides, arnl
since respondents 2 to 12 had not suhmit.ted to the
jurisdiction of the Hyderabad Court. The Hydcra,/.
had Court hacl no jurisdiction to try the claim
against them.
'
3 S.C.R.
SUPREME COURT REPORTS
397
>
·'"'-
The rule of private international law on
which the High Court has relied is no doubt well
settled. It has been thus enunciated by Dicey in
rule 26 : "When
the defendant in an action
in personam is at tho time of the service of the writ
not in England the Court has no jurisdiction to
entertain the action" (1).
According to Cheshire's
"Private International Law" this rule is based on
ii the principle of effectiveness.
"Jurisdiction",
observes Cheshire, "depends upon physical power,
and since the right to exercise· power, or, what is
the same thing in the present connection, the
power of issuing process, is exercisable only against
persons who
~re within the territory of the
., Sovereign whom the Court represents, the rule at
common law has always been that jurisdiction is
•confined to persons who ara within reach of the
process of the Court at the time of S(lrvice of the
writ. A Court cannot extend its process and so exert
sovereign
power
beyond its own territorial
limits"(').
This limitation on the competence of
Courts to try personal actions against non-resident
foreigners has been emphatically laid down by the
<Privy Council in the case of Sirdar Gurdyal Singh
v. 'Phe
Rajah of Ji'aridkote('). "In a personal
action", observed the Earl of ISelborne, speaking
for the Board, "to which none of these causes· of
jurisdiction previously discussed apply, a decree
pronounced in absentem by a foreign Court to the
jurisdiction of which the defendant bas not in any
r way submitted himself is by international law an
absolute nullity" (P.185).
This position is not
and cannot be disputed ; but the question which
still remains is whether the High Court was right
in applying this rule to the appellant's case. As
we have already seen, at their inception the two
suits brought by the appellant in the Hyderabad
Court were competent. They were brought against
...---.,.,
(I) Dicey•s ''Conflict of Laws'', 7th Ed., p. 182.
(2) Cheshire's "Private International Law'', 5th Ed., P. 107.
(3)
(189'f) L. R. 21 I. A. 171.
1961
The Andhra Bank
Ltd.
v.
R. Sriniva,
Gajendrazadka1 f.
1961
Thi .~ruilira Bmd:
uJ.
v.
R. Srini1·asan
398
SUPREME COURT REPORTS
[1962]
residents over whom tlw Hyderabad Courts had
jurisdiction, and so there ean be no manner of
doubt that as they were filC'd they were perfectly
competent and filed before a Court of competent
jurisdiction. If after the death of Raja Ilahadur
his legal l'C'prescntativeR who
wer~ no11-1·<'sident
foreigners were brought on the record in the said
suits, docs the rule of private international law in
questions invalidaw the sub~equent continuance
of the said suits in the Court before which they
had been validly instituU,d at the outect ? The
High Court has answered this question in favour
of the respondents and the appellant contends
that the High Court wa8 wrong in giving the
:;aid answer.
In this connection it has been urged bd"ore
u~ hy l\Ir. Hanganathan Chetty, on h<'half of the
appellant, that in considering the effect of tlw
rule of priYate international law on which the High
Court has relied it may be relevant to remember
that the recent judicial decisions disclose a hcalthly
tendency to relex the rigour of tlw said rule.
Jn
fact !\Ir. Chettv has invited our attention to
Exception 8 whi~h Dicey has stated as one of the
exceptions to the rule.
L"nder thio Exception,
"whenever any person, out of F:nghncl, is a necessary (H' a proper party to an action properly
brought against some other per~on dul.v st>rvcd
with a \\Tit in England, the Court may aosume
jurisdiction to cntort.ain an action against such first
mentioned person as a co-defendant in t-he action"'
(Pp. 201,202). The argument is that this Exception
shows that where a personal action is properly
brought against one person in an English Court and
it is found that a non.resident foreigner is a proper
or a necessary party to the action in order to
sustain the claim made against the resident in
England, it would bo open to join the non-resident
foreigner as a proper or necessary party notwithstanding the fact that the said foreigner is
-
•
•
I
·-
_, _.
3S.C.R.
SUPREME COURT REPORTS
399
•
'l. non-resident and not subject to the jurisdiction of
the Court. This Exception is pressed into service to
show that the rule in question is not rigorously
enforced in every case.
In support of this argument Mr. Chetty has
also invited our attention to the decision of the
Probate Court in Travers v. Holley('). In that case
ii a bus band and wife shortly after their marriage in
the United Kingdom in 1937 went out to Sydney in
New South Wales and took with them all their
belongings. The husband then thought that the
Commonwealth offered him
better
prospects.
Having settled down in Sydney the husband invested money in a business which, however,
collapsed on the outbrea,k of war. For a time
•
, thereafter be worked on a sheep farm in Northern
New South Wales leaving his wife at Sydney where
a child had been born in 1938. Later he secured a
Commission in the Australian forces and was in
due course transferred to the British forces.
In
August, 1943 the wife filed a petition for divorce
in the Supreme Court of New South Wales on the
allegation that she bad been deserted by her
;-
husband since August, 1940. The petition succeeded and. the wife wa.s granted a decree which was
made absolute in November 30, 1944. The husband
was served with a notice of the petition but he
did not defend. In due course both the partie1
remarried.
The husband's remarriage, however,
~
proved unsuccessful and so in 1952 he obtained &
1
decree for divorce on the ground that the Australian
decree was invalid because at the time it was granted neither husband nor wife was domiciled in New
South Wales and the wife by remarrying had been
guilty of adultery. Agai,nst this decree the wife
appealed, and her appeal was allowed. In discussing the validity of the decree passed by the
Supreme Court of New South Wales the Court
_,_, . held that "the Courts of New South Wales by
s. 16(a)
of the New South Waleil Matrimonial
(1) [1953] P. 246.
1961
Tht .Andhra Ban~
Ltd.
v.
R. Srinivasan
Gqjendragatlkar J.
1961
7l1t .. ltulhra Br.Ilk
Ltd.
v.
R. Sriniia1an
(,'aj1ntlragadk!ir .].
400
SUPRE:\IE COURT REPORTS
[1962]
Cause's Act, Ko. 14 of I SU!l, ancl the English Courts
bys. 13 of the l\fatrimonial Causes Act, ID:l7 daimed the same jurisdi('tion, and it would be ccntrary
to principle and inconsistent with C"omity if the
Courts of this Country rcfmecl to recognise a jurisdiction which mull!tis 11111ta11dis they claimr-d for
themselves; aud that <WC'n if, while in desertion,
the husband had rrYerted to his English domicile
of origin the X ew South Wal1·s Court would not be
deprived of jurisdiction". In other words, on the
ground of the rult• of n•eiprocity the validity of the
decree passed by the Court ol Xrw South \Vales
was not allowed to be effectively c·hallangetl by the
husband in that ca~c, on tho ground that tho relevant statutory provi8io11s of the matrimonial law
were substantially the same. We ought, ho\1·c,·cr
to add that on two subsequent occasions the
principle enunciated ill the case Of J'raHI"' (1), it
has been said, should be confined to the special
facts ancl
foat.urc·s of that c;osp,
In IJunnr. \'.
Srtban (') it is 8tated that "the 0LsC"rvatit111S in
'l'ra.nrs v. lloUey (') aH to recog11ition in certain
circumstances of foreign
dccre<'~ founded upon 11
jurisdiction similar to ours were cl ire ct eel to n.
case ll'here the cxtraordin;ir,1· jmis<lietion of the
foreign Court corresponded almost exactly to
the rxtraordinar,\' juriscli<:tion cxcrcirnhle by this
Court" ; and in Jfountlmttcn v. J/ounlballeu (')
Davies, J. has raised a ·whisper of protest against
making any further extension of the principle
(p.81).
JI.fr. Chctty, howm·er, contends that the
principle of reciprocity is gradually finding more
aud more recognition in mocler11 decisio11s, ancl on
the strength of the said decisions it should be held
that the relevant statutory provisions i11 Hyclcrabacl and India being exactly the same t.]w rule of
private intcrnatioual law 011 whiC"h the High Court
relied should not be rigorously applied to the presc11 t. ca.sc.
iii [1953) P. 246.
(2;
[19l5] P. 178.
(3] [1959, P.43.
It
•
' l
'.
3 S.C.R.
SUPREME COURT REPORTS
401
In support of his argument Mr. Chetty has
also invited our attention to the obiter observations
made by Denning, L. J, in Jn Re Dulles' Settlement
(No.2) Du1les v. Vidler(').
Denning, L. J. observed
that the relevant mies' prevailing in the Courts in
the Isle of l\fan corresponded with the English rules
for service out of !he jurisdiction contained in 0. 11
and added "I do not doubt that our Courts would
recognise a judgment properly obt'lined in the
Manx Courts for a ·tort committed there, whether
the defendant voluntarily submitted to the juris·
diction or not ; just as we would expect Uie Manx
Courts in a converse case to recognise a judgment
obtained in our Courts against a resident in the
Isle of Man, on his being properly served out of our
jurisdiction for a tort committed
here". Mr.
Chetty points out that this observation again is
based on the rule of reciprocity and it illustrates
the modern tendency to relax the rigorous applic&tion of the rule of private international law in
question.
On the other hand it may be pertinent to
point out that the present editor of Dicey's "Conflict of laws" has commented on the observations of
Denning, L. J. by observing that "this suggested
· application of the principle of reciprocity is of a
more sweeping character than its application to
foreign divorces, because in the first place it extends
to enforcement and not merely to recognition, and
in the second place it would, if logically carried out
mean that English Courts would enforce foreign judgments based on any of the very numerous jurisdictional grounds specified in Order 11, rule 1 of the
Rules of the Supreme Court''. The editor further
observes that "it may be doubted whether English
Courts would be prepared to carry the principle of
reciprocity as far as this, for the suggestion under
discussion was made by a sing!~ Lord Justice i11 an
ob·iter dicturn, and moreover it is directly at variance
with a weighty decision of the Court of Queen's
(1)[195 ] I Ch. 842.
1961 .
The Andhra Bank
Lid,
v.
R. Sri11ivasan
Gaj1ndragadknr J.
19'1
Tiu A.nilrTtJ B•-"
[Ji.
v.
R, Sri11itc.sa11
402
SUPREME COURT REPORTS
[1962)
Bench" (8cliibsby v. Westenholz (1).
Therefore we do
not think that this general argument that the rigour
of the rule Rhould be relaxed can bo accepted.
Hu\1·cver, e\'en if the' rule has to be applied
the question still remains whether it has to be
applied at the inception or the commencement of
the suit as well as at a later stage when on the
death of one of the defendants his legal reprcsenta.
tives arc sought to be brought on tho record. In
dealing with this question it would be relevant to
recall the fi vo cases enunciated by Buckley, L. .T. in
Rmanuel Ors. v. Symon('! in which the Courts of
England would enforce a foreign judgment. "In
actions in pers<mam", observed Buckley, L. J., "there
arc five cases in which the Courts of this country
will enforce a foreign judgment : {l) where th
0
0
defon<lant is a subject of the foreign country in
which the judgment has been obtained ; (2) where
he was reHident in the foreign country when the
action began ; ( 3) where the defendant in the
character of plaintiff has selected the forum in
which he is afterwards sued ; (4) where he has
voluntarily
appeared ; and ( 5) whore
he has
contracted to submit himself to the
forum
in
which the judgment was
obtained". It
would be nllticed that all these fivo cases indicate
that tho material time when the test of the rule of
privat~ international law has to be applied is the
time at which the suit is instituted. In other worda
these fi,•e cases do not seem to contemplate that
the rule can be invoked in regard to a suit which
had been properly instituted merely because on the
death
of one of
the defendants his legal
representatives who have been brought on the
record are non-resident foreignera.
The procedural
action taken in such
a suit to bring
the
legal
represeatativcs
of
the deceased
defendant on the record does not seem to
attract the application of the rule. If that be so
(I) ( li70' L. It. 6 Q. R. 155 (Dicey, p.28).
(21 [1901] I K. B. 302.
i .
,,
j
' '
3 S.C.R.
SUPREME COURT REPORTS
403
it is at the commencement or the initiation of the
suit that the rule has. to be applied, and if that is so
there is no doubt that tbe two suits in the City Civil
Court at Hyderabad were oompetent when they
were brought and tbe City Civil Court at Hyderabad which tried them had jurisdiction to try
them.
In form the claim m11.de by the appellant
against respondents 2 to 12 in the Hyderabad
Court was in the nature of a personal claim ; but in
substance the appellant would be entitled to
execute its decree only against the assets of tbe
deceased Raja Bahadur in the hands of respondents
2 to 12.
That is the true legal position under s. 52
of the Code of Civil Procedure in India, and to the
same effect is the corresponding provision of the
Code of Hyderabad, Besides, when
~he legal
representatives are brought on the record the
procedural law both in India and Hyderabad requires that they would be entitled to defend the action
only on such grounds as the deceased Raja Bahadur
could have taken. In other words, the defence
which the legal representatives can take must in the
words of O. 22, r.4, sub-r. (2) be appropriate to
their character as legal representatives of the
deceased defendant. No. plea which the deceased
defendant could not have taken can be taken by
the legal representatives.
That emphatically
brings out the character of the contest between the
legal representatives and the
appellant. The
appellant in substance is proceeding with its. claim
originally made against the deceased Raja Bahi!.dur
and it is that claim which respondents 2 to 12 can
defend in a manner appropriate to their character
as legal representatives. If the suits originally
brought
by the
appellant in Hyderabad were
competent how could it be said that they ceased to
be competent merely because one of the defendants
died ? The Hyderabad Court had jurisdiction to try
the suits when they were filed and there is nothing
JW
Th, Anihra B<Jtk
Lt ti.
v.
R. Sriniva.s4n
G11jentlragadkar J.
H61
1'he .indi1rtr H,ml,;
l~d.
v.
R, Srini'-aJaJJ
404
SUPHE~IE COURT REPORTS
[J 962]
in the rule of private international law to suggest
that tlw said jurisdiction automatically came to an
cud as soon as one of the defendants died ]caring
as his legal reprcseutn.ti\·cs persons who wcrP non·
resident foreigners.
In considering this n.spcct of the matter we
may rcfrr to the o;tatemcnt jn Salmuncl's ",J urispru·
drnce" that "inheritance is in sum~ sort a legal and
fictitious continuation of the personality of the
dead man, for the rrprcsentatin· is in some sort
idcntific<l by the law with him whom he n·pre·
scuts.
The rights which the dead man can no
longer own or exercise in prnpria pcrsomi, and tho
obligations wl1ich he can no longer in propn'a pasona,
fulfil, he own8, exercises, and fulfil,; in the person
of a li\·ing sub8titutc. To this extent, and in this
fashion, it may be said that the legal personality
of a man survive~ hi; natural personality, until, his
obligations being duly performed, and his property
duly disposed of, hiR rcprcsentition among the
living is no longl'r called for"('). These observa·
tions support the appellant's contention tl1at esHCn·
tially and in su bstanre and for the purpose of
jurisdiction the suits brought by the appellant
against Raja Ilahadur ditl not alter their eharacter
even after his death and continued to be suits substantially against his estate as represented by his
legal r<'prcsentativcs. Ifthat be the true legal position
there would be no scope for urging that the Court
which was competent to try the suits as originally
filed C'eased to be competent to try them because
tho kgal represent.a.ti ves
of the deceased Haja
Bahadur were non-resident foreigners.
To hold
otherwise would lead to this result that the suit.q
against Haja Bahadur would abat-0 on his death
though the cause of action survives and the clocree
passed against his assets in the hando of his legal
representatives can be effectively executed.
The High Court seems to have thought that
l I) Salmond On 'J urisprudcncc', Illh Ed., p. 482.
,... .
.
.
•
- r
3 S.C.R.
SUPREME COURT REPORTS
405
the Hyderabad Court's jurisdiction terminated on
the death of Raja Bahadur so far as the appellant's
claim against him was concerned "and tlie same
cannot avail against his legal representatvies",
and it has observed that there is judicial authority
in support of this conclusion.
The decision on
which the High Court has relied in support of its
conclusion is the judgment of the Full Bench of
the Madras High Court in Ka.nchamr•lai Pathar v.
Ry.
Shahaji
Rajah Sa.heb & 5 Ors. (1).
It is
necessary to refer to the relevant facts in that case
in order to appreciate the point which was decided
by the Full Bench. In execution of a money decree
certain immovable property belongjng to the judg·
ment-debtor had been attached. A proclamation
of sale was then settled and an order passed for
sale. At that stage the judgment-debtor died.
The decree-holder and his, vakil were aware of the
death of the
judgm~nt-debtor, but even so no
application was made under 8. 50 of the Code of
Civil Procedure for leave to execute the decree
against the legal representatives of the deceased
judgment-debtor, and so no
notice was served
as required by O. XXI, r. 22, sub-r.(l). The sale
was then held and at the sale the property
was purchased by a stranger. A question then
arose as to whether the sale was void or voidable and the Full Bench held that it was void.
Before the Full Bench it was contended that s. 50
]1ad reference only to the stage when it became
necessary to apply for execution against the legal
·representativPs; it did not apply to a case where
the judgment-debtor himself was alive when the
attachment was made.
'J:he argument was that
once the attachment was made
the property
attached was custod-ia legis and the liability then
was that of the property and not that of the
person.
That is how, failure to bring the legal
representatives on the record under s. 50 or to apply
for and obtlin notice under 0. XXI, r. 22, sub-r. (1)
(1) (1936) I. L. R. 59 Mad. 461.
1961
T ht Andhra Bani.
Ltd.
v.
R. Srinivasan
Gajendragadkllr J.
19>1
T"4 Andltr• B•'fk
LU. ..
If. S1 i1iit'a.t•11
406
SUPREME COURT REPORTS
[1962)
W/\.S attempted to be explained.
Thi~ contention
was negatived. It is in the context of this contention and while rejecting it that Varadachari, J.,
observed that on the death of a person proceedings
for recovery of a debt due by him or taken only
against his estate and not against his legal representative do not seem to be justified either by legal
hi~tory or by the language of the Pmccdure Code.
Similarly, in the 11<1me context and while rejecting
the said argument Venkataramana Rao, .T., observed
that as soon as a man dieH he disappears from the
record ancl there is no party over whom the Court
can cxercioe jurisdiction and it loses jurisdiction
in one of. its essentials.
Then the learned judge
has added that no decree ('all be passed without
bringing his reprl'sl'ntative on the recorcl.
After
he is bro11ght he becomes the defendant.
Similarly after the decree he becomes judgment-debtor.
ft would be noticed that these observations on
which the High Court has relied must be read in the
c.:mtext of th" facts before the Court in that case,
and their effect must bo appreciated in tho light of
the argument which wao n•jcctcd.
'l'hc Full Bench
was really concerned to decide whether in r~garcl
to property which had h~cn attached in execution
of a
dec~ee procel'dings under R. 50 and under
0. XXf, r. 22, ~ub-r. (I) have to be taken or not,
and it has held that when a judgmcnt-d•!Ltor <lies
no action can be taken against his estate unless his
legal representative is brought on the record and
orders are then passed against the assets of the
deceased in his hands. In our opinion, therefore, tho
observations made
in that cas0 cannot pressed
into service when we :irn dealing with a very different problem.
The same comment, with respect, falls to be
mi1 le with regard to similar observations made by
Ranade, ,J. in Erarn &
Anr.
v.
Sidranwpp<1
Pa9are('). In that case a mortgagee H had obtained
q) (1897) I.l.R. 21 Born. 424.
•
-
.. •
. -
3 S.C.R.
SUPREME COURT REPORTS
407
a decree against the mortgagor N but before the
decree could be executed N died leaving behind him
as his heirs his daughters. Subsequently the decreeholder applied for execution against the deceased
judgment-debtor by his heir and nephew R. R
appeared and pleaded that he was not the heir and
tba.t the daughters of N were his heirs. Even 80 the
daughters were not impleaded to the execution
proceedings nor were notices served on them under
s. 248 of the Code (Act X of 1877). Ultimately
the property was sold and was bought by the decreeholder subject to his mortgage. In due course the
sale was confirmed and the sale certificate issued.
The daughters of N then sued the mortgagee for
redemption and were met with a plea that since the
defendant had purchased the property at court
sale he was entitled to it free from the claim of the
plaintiffs to redeem. This defence was rejected by
the High Court. Candy and Jardine, JJ. based
their conclusion on the ground that even if the
auction purchaser got an absolute title to the pro·
perty the present suit had been brought within
twelve years of the sale and cdid challenge it and
so the plaintiffs are entitled to redeem. Ranade, J.,
however, based himself on the ground that the sale
proceedings were null and invalid and without
jurisdiction because the true legal representatives
of N had not been brought on the record. It is in
this connection that he rejected the argument of
the auction purchaser .that the auction sale affected
the estate of the deceased N only and that it was
a mere informality that the true heirs' names were
not joined in the record in execution proceedings.
In other words, according to Ranade, J., execution
proceedings could not properly and validly be
continued after the death of N unless his true heirs
and legal representatives were brought on the
record. It is thus clear that the problem posed
before the High Court in that case was very much
different from the problem with which we are concerned in the present appeal, and so the ob~ervations
1961
The Andhra ncnlt
Lid.
••
If_, Srinif.s11n
Cajerulragadkar ] ,
1961
Thr .indhra Btwk
I.rd.
'·
n S1ini1·asan
408
SUPRE.ITE COUlt'l' REPORTS
(1962]
made in 1 hat case <'<\llnot IJc of any assistance to
the respomlcnt8 in support of tla·ir contention that
the Hydcralmd Court ceasr<I to ha,·c jurisdiction
over ti!{' suit because on the tfoath of Haja Bahadur
his
legal
r~pn,sentatiwo
1rcrc
non-rcsi<l0nt
for(·igners.
Going IJ<L<:k to the narrow point whi<:h calls
for our decision in tho present appeid \\'C are inclinccl to hold that there i,; no scope for tlw appli·
eat.ion of tho rnlc of private international law to a
ease where the suit as initially fikcl was competent
and the C.mrt before which it \l":IS filer! harl juris·
diction to t.rv it..
Jn such a case if one of the
<lefond:rnts ·,lie~ :rn<I his legal representatives happen
to he non.r•.•sidcnt foreigners the procedural step
taken to bring them on thl' record iR intender! to
enable them to defend the 8uit in their character
:i8 Jc.g:d r<'presentativcs am! on behalf of the
clecc11s<'<l rlefl'llllant and so the jnrio<liction of the
Court continn<'S unaff,,c:tcd 1md the compet<'nce of
the snit as originally fil1·d remains unimpaired. In
form it is
a
persoml adion again,,t the lq.1al
reprc''"·ntatives ln1t. in s11ustance it
i~ an action
conti1111e(I ag,linst th<'m
:is lega,l repres!'ntatin'A
in which the ''xtcnt of their liahilitv is ultimately <lccirled hv the extent of t.he
a~scts
of th;, rbcea.sod a~ hdrl bv them.
Therefore we
must hold that. th<· High. Court was in "rror in
reversing tho finrling of the ~rial court on the quest.ion about the cmHpctcnc<· of the Hyderabad Court
to t.rv the two snits fib! before it.
[n this view
it is ;mnce<'ssan· to consider whether some of the
legal. representatives had submitter! to the jnrisdic:tion of the Hyrlt·rahad C<!urt or not..
That takes 11s to the other argument raised
by !Hr. Viswan:itha s,istri Oil behalf of the respon·
dent8.
He contends that rc,pondcnts 2 to I 2 who
are in possession of rliffercnt picecs of prop.,rty
belonging to the deceased Raja Baha<lur uurlcr the
will executed by him cannot be Raid to be his .
.
•
S.{J.R.
-SUPREME OOUiRT REPORTS
409
legal representatives under s. 2(11) of the Code.
Section 2(11) provides, inter alia, that a legal
representative means a person who in law represents the estate of a deceased person, and includes
any person who intermeddles with the estate of
the deceased. It is well known that the expression
"legal representative" had not been defined in the
Code of 1882 and that led to a difference of judicial
opinion as to its denotation. In Dinamoni Chaudhurani v. Elahadilt Khan,(') the Calcutta High Court had
occasion to consider these conflicting decisions. It
was urged before the High Court that the term
"legal representative" used in s. 234 of the said
Code had to be construed strictly and could not
include anybody except the heir, executor or the
administrator of the deceased. The argument was
that the term had been taken from the English law
and its scope could not he extended. This argument was rejected by Brett and Woodroffe, JJ.
Woodroffe, J. examined
the
several
judicial
decisions bearing on the point and observed "from
this review of the authorities it will appear that
judicial decisions have extended the sense of the
term "legal representative" beyond that of its
ordinary meaning of "administrator, executor, and
heir'' and though such ·extension has been attended
with doubt and has in some cases been the subject
of conflicting decision it appears to me to be too
late now to endeavour, however convenient it
might be, to secure for the term that which is perhaps its strict and legitimate sense. I agree, therefore, in holding that the term is not limited to
administrators, executors, and heirs and am of
opinion that it must now be
held to include
any person who in law represents the estate of a
deceased judgment-debtor". It would be relevant
to observe that the view thus expressed by Woodroffe, J. has been embodied in the present definition
of "legal representative" bys. 2(11).
(I) (1964) 3 C.W:N. 843.
!HI
Th< A•llirra B..J;
LtJ.
v.
R.