# SANKARAN GOVINDAN v. LAKSHMI BHARATHI & OTHERS

- **Citation:** [1975] 1 S.C.R. 57
- **Court:** Supreme Court of India
- **Decided:** 1974-04-15
- **Case number:** Civil Appeal No. 1887 of 1961
- **Bench:** K. K. Mathew, A. Alagjriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sankaran-govindan-v-lakshmi-bharathi-others-6356
- **Pages:** 23

## Headnote

Private International Law .
57
Domicile-Decision of a foreign Court when would operate us res judicata.
D(lrr.icile-A mixed question of law nnd fact-T t>sts for de/f:n1!i11ing do111iCile-Distinction between mistake and trickery-Fraud-What const1tute1.
Minors---Notice of proceedings served on mitwrs through guardians
not
appointed ad litem-ff opposed to principles of natural justice.
C
"Contrary to natural justice"-What fr means in relation to
foreign
Judg1nents.-
Res Judicata---Determination of domicile if would operate as res judiCata
if minors did not submh to the jurisdiction of the Coμrt.
Res Judicata-A Judgment on merits involves res judicata of credibility of
witnems.
D
JudgmenJ in rem-Effect of.
E
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. K went to England in 1920 for higher studies in medicine and thereafter he
practised there. He died ill 1950 leaving b;!hind house, movable properties and
moneys.
A suit for partition was instituted in India in respect of the assets of
K in India with brother and sister as defendants 1 and 2. After the iDStitution
of the suit proceedings were started in England for obtaining Letters of Admi·
nistration of the estate of K as there was likelihood of dispute as
respects the
domicile of K
The Administrators took out originating sununons for deciding
the question whether K was domiciled in England at the time of his death. By
ex. 56 order the High Court of Judicature in England held that K had domiciled
in England. The movable properties in England were sold and the proceeds to·
gether with the moneys were handed over to defendants 1 and 2. After e~ 56
order was passed by the High Court in England the plaint was amended with the
prayer to divide this amount also which was separately mentioned in Schedulci C.
The first defendant contended that Schi;!dul:: C amount was not liable to be divi·
ded among the partii:s to the suit, that as K died domiciled in Ei:lgland succession
to the movables was governed by English Law and that defendants 1 and 2 alone
were entitled to the same as next of kin of the deceased.
The trial court rejected
this contenuon and directed partition of the amount according to Travanrore
Ezhva Act. The High Court confirmed the finding of the trial court that K was
not domiciled in England, that ex. 56 order was obtained by fraud of defendant
no. 1; that the proceeding: in which ex. 56 was obtained was opposed to the
principles of natural justice and. therefore, ex. 56 would not operate as res
fudlcata on the question of domicile of K..
On appeal to this Court by defendant no. I the questions arose ( 1 ) Whether
ex. 56 order operated as res Judicata on the domicile of K and if it did whether
there was sufficient evidence to show that K died domiciled in England;
(2)
whether the proceedings in which ex. 56 order was obtained were opposed to
natural iu<;tice in as much as the notices of the proceedings were served on the
minors through their natural guardians, who were not appointed guardians ad
litPm and (3) Whether ex. 56 order would operate as res fudicata since the minors
did not submit to the jurisdiction of the court.
Al'owing the appeal,
.
:HtLD ; Succession tQ the amount specified in Schedule C must be ~overned
by the English I.aw and the amount must be distributed between the litst aad
second defendants in e<1ual shares.
58
SUPREME COURT REPqRTs
[1975] l s.c.R.
\l)(a) It is a well established principle of private international law that if a
A
forei.gn JUdgment was obtained by traud or if the proceedings in which it was
obtained were opposed to natural Justke, if will not operate ~ res judlca1a.
Section 13 CPC referred to.
.
(b) The High Court was not justified in imputing fraud to the first defendant
IA procunng ex. 56 order .
. It is imp'?Ssiblc to say that the High Court of Judicature in England was
_B.
tncked or misled to grant the-declaration that the deceased was domiciled in
•
England on the b""is of the aJlidavits filed by the first defendant
(c) pomicile is a mixed question of law and fact

## Text

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SANKARAN GOVINDAN
r.
LAKSHMI BHARATHI & OTHERS
April 15, 1974
[K. K. MATHEW AND A. ALAGJRISWAMI, JJ.]
Private International Law .
57
Domicile-Decision of a foreign Court when would operate us res judicata.
D(lrr.icile-A mixed question of law nnd fact-T t>sts for de/f:n1!i11ing do111iCile-Distinction between mistake and trickery-Fraud-What const1tute1.
Minors---Notice of proceedings served on mitwrs through guardians
not
appointed ad litem-ff opposed to principles of natural justice.
C
"Contrary to natural justice"-What fr means in relation to
foreign
Judg1nents.-
Res Judicata---Determination of domicile if would operate as res judiCata
if minors did not submh to the jurisdiction of the Coμrt.
Res Judicata-A Judgment on merits involves res judicata of credibility of
witnems.
D
JudgmenJ in rem-Effect of.
E
F
G
11
. K went to England in 1920 for higher studies in medicine and thereafter he
practised there. He died ill 1950 leaving b;!hind house, movable properties and
moneys.
A suit for partition was instituted in India in respect of the assets of
K in India with brother and sister as defendants 1 and 2. After the iDStitution
of the suit proceedings were started in England for obtaining Letters of Admi·
nistration of the estate of K as there was likelihood of dispute as
respects the
domicile of K
The Administrators took out originating sununons for deciding
the question whether K was domiciled in England at the time of his death. By
ex. 56 order the High Court of Judicature in England held that K had domiciled
in England. The movable properties in England were sold and the proceeds to·
gether with the moneys were handed over to defendants 1 and 2. After e~ 56
order was passed by the High Court in England the plaint was amended with the
prayer to divide this amount also which was separately mentioned in Schedulci C.
The first defendant contended that Schi;!dul:: C amount was not liable to be divi·
ded among the partii:s to the suit, that as K died domiciled in Ei:lgland succession
to the movables was governed by English Law and that defendants 1 and 2 alone
were entitled to the same as next of kin of the deceased.
The trial court rejected
this contenuon and directed partition of the amount according to Travanrore
Ezhva Act. The High Court confirmed the finding of the trial court that K was
not domiciled in England, that ex. 56 order was obtained by fraud of defendant
no. 1; that the proceeding: in which ex. 56 was obtained was opposed to the
principles of natural justice and. therefore, ex. 56 would not operate as res
fudlcata on the question of domicile of K..
On appeal to this Court by defendant no. I the questions arose ( 1 ) Whether
ex. 56 order operated as res Judicata on the domicile of K and if it did whether
there was sufficient evidence to show that K died domiciled in England;
(2)
whether the proceedings in which ex. 56 order was obtained were opposed to
natural iu<;tice in as much as the notices of the proceedings were served on the
minors through their natural guardians, who were not appointed guardians ad
litPm and (3) Whether ex. 56 order would operate as res fudicata since the minors
did not submit to the jurisdiction of the court.
Al'owing the appeal,
.
:HtLD ; Succession tQ the amount specified in Schedule C must be ~overned
by the English I.aw and the amount must be distributed between the litst aad
second defendants in e<1ual shares.
58
SUPREME COURT REPqRTs
[1975] l s.c.R.
\l)(a) It is a well established principle of private international law that if a
A
forei.gn JUdgment was obtained by traud or if the proceedings in which it was
obtained were opposed to natural Justke, if will not operate ~ res judlca1a.
Section 13 CPC referred to.
.
(b) The High Court was not justified in imputing fraud to the first defendant
IA procunng ex. 56 order .
. It is imp'?Ssiblc to say that the High Court of Judicature in England was
_B.
tncked or misled to grant the-declaration that the deceased was domiciled in
•
England on the b""is of the aJlidavits filed by the first defendant
(c) pomicile is a mixed question of law and fact and there is perhaps no
chapter in the law that has from such extensive discussion received less eatisfactory settlement. This is, no doubt, attributable to the nature of the subject including as it doe&, inquiry into animus of persons who have Cither died without
!eaving any clear record of their intentions, but allowing them to be collected by
tnference from acts often equivocal; or who b:!ing alive and interested, have a
C
natural tendency to give ,their bygone. feelings a tone and colour suggested by
their present inclinations.
{d) The traditional statement that, to establish domicile, there must be
a
pre!ent intention of permanent residence merely means that so far as tho mind
of the person at the relevant timo was concerned, he possessed the requisite intenlion.
The relevant t.J.me varies with the nature of the inquiry. It may be past
or present. If the inquiry relates to the domicile of the deceased person, it must
be ascertained whether at_some period in his life he had formed and retained a
fixed and settled intention of residence in a given country. One has to comider
the tastes, habits, conducts, actions, ambitions, health, hopes and projects of a
per!On because they are all considered to be keys to his intention to make a permanent home in a place.
Bell v. Kennedy (1868) L.R. I Sc. & Dtv. 307, 322., Cheshire's PriYale lmer·
1uuional Law, 8th ed. 164., The Spuch of Lord Atklnso11 in Winans v. A.G.
(l!I04) A.C. 287, referred to.
In the instant case the statements made by the first defendant in some of the
letters written by him, while he was in England, that K would return -to India
could not be taken as conclusive of the fact that he entertained a view after taking
legal advice from lawyers, that K was not domiciled in England and the affidavits
filed were, therefore, necessarily false.
I>
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(e) There is an essential distinction between mistake
and
trickery.
The
clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely that on
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the merits, the decision was one '"·hich should not have been rendered, but that
it can be set aside if the Court was imposed upon or tricked into giving the
judgment. It is now firmly established that a foreign j1udgment is impeachable
for fraud in the sense that upon proof of fraud it cannot be enforced by action
or operate as res Judicata.
Aboulo{! v. ()ppentheirner, (1882) 10 Q.B.D. 295 Vadala v. Lawes (1890)
25 Q.B.D. 310., Sl'al v. Hevward, (1948) 2 All E.R. 576., Woodruff v. Moleruum,
( 1887) 14 Ont. A.R. 242, Jacobs v. Beaver, 17 Ont. L.R. 496., Hilton v. Guvot,
159 U.S. 113. 210. referred to.
G
(f) It is axiomatic that the question of credibility of witness~. whether
they are misleading the court by false. tes!imony, ha~ .to be detei;:m1ru;d by the
tribunal in every trial as an essential issue,
dec1s1°? of "!h1ch •s a prerequisite to the decision of the main issue upon the merrts.
~ ~udgment .on the
merits therefore neces3arily involves a res judicata of the credibility of witnesses
in so far as the' evidence which was before the tribunal is concerned.
H
{g) When an allegation is made that a foreign judgment ~ vitiated ~
the court was fradulently misled by perjury, and issue is take? ~th that al!C1ation
and heard, if the only evidence available to substantiate 1t ts that which was
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SANKARAN V. LAKSHMI
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used in the foreign Court, the result will be a retrial on the merits. The frau(t
relied upon must be extrinsic or collateral and not merely fraud
which
is
imputed from alleged false statements made at the trial which were met with
counter statements and the \\rhole adjudicated upon by Court and so passed
into the limbo of estoppel by the judgment. That estoppel cannot be disturbed
except upon allegation and proof of new and material facts which \Vere not
before the former court and from which are to be deduced the new proposition
!hat the former judgment was obtained by fraud.
B.
Jacob v. Beaver 17 Ont L.R. 496 referred to .
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Co11flict of Laws, f~oreign Judgment as Defence.
l~lote i!J 8 Canadian Bar
1-?.tTiew 231 by Horace E Road; referred to.
(h) It is impossible to foqnulate a rule specifying the weight to b: given.
ro particular evidence.
AU that can be gathered from the authorities in this
respect is that more reliance is placed upon conduct than upon declaration of
intention. It is not by naked assertion but by deeds and acts th.at a domicile
i~ established.
The declaration of K in the letters written after 1939 that he would return
to Travancore did not contain the real expression of his settled intention. These
declarations cannot be taken at their face value. They are interested statements
designed to extract from his brother the share of his· income.
They seem to·
represent nothing more than an expectation unlikely to be fulfilled.
Mcmullen v. Wadsworth (1889) 14 App. Cas. 631, at 636., Ross v. Ross
[1930] A.C., at p. 6.
(i) "The fraud which vitiates a judgment must generally be fraud of the
party in whose favour tho judgment is obtained."
It was the administratorswho obtained, the order of the High Court and by no stretch of imagination
c-ould it be said that they practised any fraud by adducing evidence which they
knew was false or induced by any person or witness to give false evidence or
file any false affidavit. Nor could it be said that the English Court wa. misled
by what tho first defendant said about the domicile of K, as persons who are
more competent to speak about his dbmicile bad filed affidavits and tendered oral
evidence to the effect that he died domiciled in England .
(2) The expression 'contrary to natural justice' when applied to foreign
judgments merely relates to the alleged irregularities in procedure adopted by the
adjudicating court and has nothing to do with the merits of the case. If the
proceedings be in accordanco with the practico of the foreign court but that
practice
is not in accordance with
the natural justice,
this Court will
not allow
it tcr be concluded
by them.
The wholesome maxim audi
ldt.e.ram
partenz is
deemed
to
be
universal
not
merely
of
domestic
application, and therefore, the only question is, whether the minors had
an.
opportunity of contesting the proceeding in the English Court. All
that
is
required by rules of natural justice is that minors should be given an opportunity
to contest through their natural guardians.
Even if there was any breach of
the rule of procedure prevailing in the forum where the proceeding have been
conducted that would not be material as what the Court has to <Jee is whether
the proceedings have been conducted in substantial compliance with the prevailing notion of fair play. When the natural guardians evinced their intention not
to contest the proceedings by not putting an appearance on behalf of the minors.
the requirements of natural justice was satisfied when the court appointed an
officer of the court to be guardian ad Utem of the minors in the proceedings.
(3) (a) It is a well established proposition in private international law that
unless a foreign court has jurisdiction in the international sense, a
judgment
delivered by that court would not be recognized or enforc.eable in India.
The
guardians of the minors did not enter appearance on behalf of the minors and
so it cannot be said that the minors through the guardians submitkd to the
jurisdiction of the English Court.
(b) A judgment in rem determines the status of a person or tiling and such
a judj:mcnt is conclusive evidence for and against all persons whether parties"
SUPREME COURT REPORTS
[1975) 1 S.C.R.
privies or strangers of the matter actually decided.
A judgment in rent deterA
mines the "destiny of the res itself'' and binds all persons clain1ing an interest
in the res.
(78 B-CJ
So faf as the major respondents before the 1-ligh Court of Judicature
in
~
England were concerned the Court had jurisdiction :}ince they submitted to its
juriSdiction and the decision of the court would operate as res ;udicatn.
But,
so far as the minor respondents to those proceedings \.Vere concerned on the
evidence in this case K had no settled or definite intention to return to Travancore
B
and that as he was a resident in England and a<:i his acts and con<luct were con_,,,
sistent only with his intention to make it his permanent home, he died domiciled
ln England. (79 B·DJ
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 1887 of 1961.
Appeal from the Judgment and Decree dated the 20th D>occrnber.
1963 of the Kerala High Court at Erankulam in A. S. No. 54 of
C
1959.
Sarjoo Prasad with Mis Sardar Balwdur and
Vis/mu Bahadur
'Saliaraya, for the appellant.
Mr. W. S. Barlingay and Mr. D. N. Misra for the respondent.
ARGUMENTS
For tile appellmus : (1) Approach of the Courts below is wrong
>ince they should have first considered whether
the judgment of
English Court was not binding and should have gone into the ques·
tion of domicile onlc)' if they held that the judgment, was not pending.
(2) There was no pleading regarding the judgment having been
obtained by fraud, or being opposed to natural justice. Even in tneir
application no particulars as required by law were given.
(3) There is no evidence on record to show that the appellant
played any fraud upon the English Court or had given wrong information to the Solicitor.
The appe!lant gave information regarding the
assets of the deceased in India and his relatives in India.
All the
parties to the suit had been. made parties in the suit in England.
( 4) All the parties in the snit had been duly served the summons
of the suit and they were represented by their own solicitor before
the English Court.
Since the natural guardians of the minors
did not come forward to represent the minors, the court appointed
an official solicitor as their guardian for the suit. There was
nothin~
against the rules of natural justice.
(5) The documents and evidence on record did not establish that
the deceased was not domiciled in England. His efforts to bring him
back to India failed and the deceased always keot postponing the
date of his return to India until he died in October, 1950.
Persons
in touch with the deceased had all stated that they knew that the
deceased did not intend to return to India and wanted to settle down
in England.
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SANKARAN v. LAKSHMI (Mathew, /.)
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( 6) In any event there is nothing to show that the appellant had
been guilty of any kind of fraud or misrepresentation which could .
have resulted in the judgment of the English Court.
For the respondent : (1) There is overwhelming evidence and also
concurrent finding by both the trial Court and the High Court that the
deceased had the intention of returning to India and settle down here.
There was no question of his changing the original domicile and acquire a new domicile of choice. Every one of his letters showed this
and not a single letter of his has been produced which shows a contrary
intention.
The infants who were as many as 17 had not submitted
to the jurisdiction of the English court.
Notices issued by the English
Court were served on the fathers of these infants who never appeared
on their behalf in the English Court and therefore the official solicitor
was appointed to represent them. There was no power in the English
Court to compel the infants or their guardians to appear before it especially when it was proceeding under O.X.I. of the English Supreme
Court Rules.
(2) The appointment of the official solicitor to represent the·
minors was merely a formal affair.
The real question is whether a
person was appointed as guardian ad /item by the English Court, who
understood the interests of tk infants and was capable of
guardin~
their interests.
Not appointing a prclper guardian is a matter of
procedure and this procedure was not followed. The judgment of the
English Court, therefore, is contrary to natural justice according to
the notions of the Indian Courts.
(3) There is a concurrent finding of both the courts below that
the
English judgment was obtained by virtue of s. 13 CPC which
speaks of judgment obtained by fraud.
It does not say at whose
instance the fraud is committed.
( 4). Though fotmally the administrators were the palintiffs in
the English Court, it was at the instance of the appellant that these
proceedings were initiated.
The appellant knew well that the deceased had the intention to come back to India and yet he misguided his
attorneys in England by giving instructions to them, which
were
false to his knowledge.
The Judgment of the Court was delivered by
MATHEW, J. This is an appeal, on the basis of a certificate, by the
first defendant, from a decree in a suit for partition of the assets of
one Dr. Krishnan who died in England on
October
18,
1950,
according to the provisions of the Travancorc Ezhava Act and the
dispute between the parties now is concerned with the question of
succession to the sale proceeds of the movables and other moneys
included in Schedulc.C to the plaint.
·
Krishnan had two brothers, namely, Padmanabhan and Govindan,
the first defendant, and a sister, the second
defendant.
Krishnan
went to England in 1920- for higher studies in medicine.
For some
time his father helped him with money but, after the father'i death,
62
SUPREME COURT REPORTS
[1975] l S.C.R.
his elder brother Padmanabhan did not send him any money and,
therefore, Krishnan had to find his own resources for prosecuting
his studies.
He received considerable encouragement and linancial
help for carrying on his studies from an elderly English lady
hy
name Miss Hepworth.
When Krishnan became qualified to practise
medicine, he set up practice at Sheffield and in course of time he
was able to build up a gocid practice. He was later employed in the
National Health Scheme.
He purchased a building viz., 75-Woodhouse Road, Sheffield, where he carried on his profession. He was
living in a rented house at 97-Princc of Wales
Road with
Miss
Hepworth.
He had, at the time of his death, a private
secretary
named Mary Woodliff.
A
B
The first defendant-appellant came to England both for the purC
pose of qualifying himself for F.R.C.S. and for taking back Krishnan
to India. He prosecuted his studies in E_ngland for which Krishnan
helped him with money and, by the end of 1949, he returned to
India.
Contrary to his expectation, Krishnan did not accompany
him.
Krishnan died suddenly in England on October
18,
195-0
intestate. He had no wife and children and his assets in England consisted of the house at 75-Woodhouse Road, Sheffield, valuable movD
able properties and moneys.
While Krishnan was away in England, a partition took place in
his family and a share in the properties of the family was allotted to
him.
Padmanabhan, his elder, brother, was managing the properties till his death.
The properties included in Schedules A and B
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to the plaint arc those properties.
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As already stated, the second defendant is the sister of Krishnan
and 1st defendant, and plaintiffs 2 to 6 arc the
children of the
first plaintiff, daughter of the second defendant.
Defendants 22 and
23 are Mr. Cyrin Lawlin Arksey and Miss Mary Woodliff, the administrators of Krishnan's estate, appointed by the High Court or
Judicature in England and they were impleaded in the suit some time
in 1953, well nigh two years' after the original plaint was filed.
In the suit, as originally framed, the plaintiffs claimed partition
<Jf the items mentioned in Schedules A and B of the plaint. After
the institution of the suit, proceedings were started in England bv
Arksey and Mary Woodliff on the basis of a power of attorney cxc·-
cuted by the appellant for obtaining letters of administration of the
estate of Krishnan.
Letters of administration were issued in their
favour.
As there was likelihood of dispute as respects the domicile
of Krishnan, the administrators took out originating summons in the
High Court of Judicature in England for
deciding
the
question
whether Krishnan was domiciled in England at the time of his death
By ex. 56 order, the High Court held that Krishnan died domiciled h;
England.
The house and the movable~ in England were sold and
the proceeds together with the moneys were handed over to defendants 1 and 2 after taking from them a bond of indemnity.
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SANKARAN v. LAKSHMI (Ma/hew, I.)
63
After ex. 56 order was passed by the High Court in England,
the plaint was amended with a prayer lo divide this amount also which
was separately mentioned as Schcdule-C:.
The first defendant contended that
the
amount
specified
in
Schedulc-C was not liable to be divided among the parties to the
suit, that as Krishnan died domiciled in Engiand, succession to the
assets in Schedule·C was governed bj the English Law and that he
and his sister, the second defendant, were alone entitled to the same
as next of kin of the deceased.
The trial court overruled the contention of the first defendant and
held that Krishnan was not domiciled in England at the time of his
death, that ex. 56 order was obtained by fraud, that the proceedings
which culminated in ex. 56 order were opposed to natural justice
and so ex. 56 order did not operate as res judica1a. and directed a
partition of the amount specified in Schedule-C also according to
the provisions of the Ezhava Act.
It was against this decree that the appeal was preferred to the
High Court by the first defendant.
Before the High Court, the appellant contended, among other
things, that ex. 56 order operated as res judicata on the question of
domicile of Krishnan and that as Krishnan died domiciled in England,
5uccession to his movables including moneys would be governed by
English law and that, in any event, succe~ion to the immovable property in England would be determined by the lax situs.
The High Court oonfirmed the finding of the trial court that
Krishnan was not domiciled in England, that ex. 56 order was obtained
by fraud of the appellant, that the proceedings in which ex. 56 order
was obtained were opposed to the principles of natural justice and
therefore, ex. 56 order would not operate as res judicata on the question of domicile of deceased Krishnan. The Court further found that
Krishnan did not acquire a domic,ile of choice in England and so,
succession to movables including the moneys left by Krishnan was
not governed by English law but ought to be distributed among the
parties according to the provisions of the Ezhava Act. The Court also
held that succession to the house in Sheffield is governed by the law
of situs and that the next of kin of Krishnan are his legal heirs in
respect 0f the sale proceeds of that property. The High Court. therefore, confirmed the decree of the trial court with the modification that
the proceeds of the house property will be divided between the first
and the second defendant alone .
There is no dispute between. the parties that the sale proceeds of
the immovable property, namely, the house in Sheffield, should be distributed among the next of kin of Krishnan, as succession to them
H
should be governed by the English law whether or not Krishnan had
acquired domicile in England. Therefore, the only question for consideration in this appeal is as regards the law which governs the succession to movable properties and the moneys left by Krishnan. If
SUPREME COURT RBPoRrs
[1975] l s.c.R.
Krishnan had acquired a domicile of choice in England, there can be
A
no doubt that English law would govern the succession to them.
To answer the question, we have to decide : (I) whether ex. 56
order operates as res judicata on the question of the domicile of
Krishnan, and, if it does not, (2) whether there was sufficient evidence
to show that Krishnan died domiciled in England.
We will take up the first question. As already stated, the High
II
Court was of the view that ex. 56 order was obtained by fraud prac·
tised by the first defendant upon the court which pronounced it and
that, the proceedings which culminated in ex. 5 6 order were opposed'
to natural justice and, therefore, it did not operate as res judicara.
It is a well established principle of private international Jaw that if
a foreign judgment was obtained by fraud, or if the proceedings in
C
which it was obtained were opposed to natural justice, it will not
operate as res judicata( 1).
After the d~ath of Krishnan, the first defendant addressed a letter
to the High Commissioner for India, London (ex. 22 dated October
23, 1950) as to the rourse to be adopted with regard to the assets left
by Krishnan in England. On November JO, 1950, Miss Hepworth
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WTOte a Jetter to the first defendant stating that Krishnan
had left
m.ovable properties worth considerable amount in England and that
his intention was to settle down in England and that he had expressed
that intention to her (ex. 12). On November 27, 1950, Arksey wrote
a letter to the first defendant stating that he knew that Krishnan was
domiciled in England_ !llld asking the first defendant about the assets
which Krishnan had in India (ex. 44). On September 25, 1951, Arksey
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sent a letter to Damodaran, the hnsband of the first daughter of
defendant No. 2 (ex. H) indicating the assets of Krishnan in England
and that letters of administration were obtained in good faith on the
basis that Krishnan bad died domiciled in England and that he was
instructed by M/s. King and Partridge that according to the Constitution of India, Krishnan would be deemed to have died domiciled in
England and that the first defendant and his sister would be the legal
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heirs of Krishnan if he had died domiciled in England.
After having obtained the letters of administration, the administra·
tors, namely Arksey and Mary Woodliff, found that there was dispute
mnong the parties to the_ suit about the domicile of Krishnan at the
time of his death. The administrators wanted to be sure of their position. So they applied by originating summons before the High Court of
Judicature in England for determination of the question whether
Krishnan died domiciled in England. The application was made und'er
Order 11 of the Rules of the Supreme Court of England and notices
of the proceedings "'.ere serv.ed upon all the P.arties to the pr~nt suit,
the notices to the mmors bemg served on their natural guardians. The
parties appeared before the High Court of Judicature in England in the
proceedlings through their attorneys. In the proceedings, two affidavits
were fileQ. by the administrators, two by the first defendant and one
(I) Sees. 13 of the Civil Procedure Code.
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each by Miss H~pworth, R. P. Nair (DW-3), T. C. George (DW-4),
Toleti Kanakaraju (DW-5), S. S. Pillai, N. G. Gangadharan and
P. K. P. Lakshmanan. Miss Hepworth was also orally examined : in
court. It was c>n the strength of the affidavits and the oral evidence that
the court came to the conclusion that Krishnad died domiciled
in
England. The question is; whether there are any circumstances in the
case to show that ex. 56 order was obtained by trickery or the court ·
was misled in any way by the administrators either by knowingly aducing false evidence or procuring evidence which to their knowledge was
false.
Arksey and Mary' Wo.x!lilf were firml1· of the opinion that Krishnan
was domiciled in England. There is no reason to think that this opinion
was formed under the. in!lucnce of the first defendant. They had the
best opportunjty to know the mind of Krishnan and they were the most
competent persons to say whether Krishnan died domiciled in England.
There is not even a faint suggestion that they had anything to gain by
making out ·that Krishnan died domiciled in England. They could not
be said to have adduced any evi.dence which to their knowledge was
untrue. There is nothing in the case to show that they did not make
a true and full disclosure of all the material facts known to them concerning the domicile of Krishnan when they applied by way of originating summons as required. From the Jetter of Arksey it is clear that
his opinion was that Krishnan died
domiciled in England. Mary
Woodliff as the private secretary of Krishnan had the closest association.
with him and was in a better position than anybody else to form an
opinion from the habits, tastes, actions, ambitions, health; hopes and
projects of Krishnan whether he was domiciled in England. Krishnan
1yas Iivin11 with Miss Hepworth.
We do not think there was any one
more intimate with Krishnan than Miss Hepworth. It was not a matter
of any moment to her whether Krishnan died domiciled iii England or
not. She did not stand to gain in any manner by establishing that
Krishnan was domiciled' in England. She not only filed an affidavit in
the proceedings but also was orally examined. Can anybody characterize her evidence as procured or false?
Domicile is a mixed question of law and fact and there is perhaps no chapter in the Jaw that· has from such extensive discussion
received Jess satisfactory settlement. Thi> is no doubt attrib'1table to
the nature of the subject, including as it does, inquiry into ue animus
of persons who have either died without leaving any clear record of their
intentions. but allowing them to be collected by inference from acts
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often equivocal; or who, being alive and interested, have
a natural
. !endency to give their bygone feelings a tone and colour suggested by
their oresent inclinations( 1). The traditi<:Jnal· statemeni that, to establish domicile, there must be a present intention of permanent residence
merely means that so far as the m!rid of the person at the relevant time
was concerned, he possessed the requisite intention. The relevant time
II
varies with the nature of the inquiry. It may be past or present. If th•
inquiry relates to the domicile of the deceased person;it mu<t b, asc~r
tained whether at some period in his life he had formed a~d retained
a fixed· and settled intention of residence in a given country.(' l .One
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(1) Se~ Be1l-~~K..!n~eJy. (1868) L.R. t S;;. & Div. ·:i1r•. 322
6-131 S·Jp. C!f75
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[1975] I s.c.R.
has to consider the tastes, habits, conduct, actions, ambitions, health,
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hopes and projects of a person because they are all considered to be
keys to his intention to make a permanent home in a place(')
If,
therefore, Govindan, the first defendant, despite his statement in some
of his letters that Krishnan had the intention to return to India, made
the assertion that Krishnan died domiciled in England
after taking
legal advice from competent lawyers in Travancore, it cannot be s2id
straightway t.1-iat the first defendant was guilty of any fraud. We do not
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know the contents of the affidavits filed by the first defendant in the
proceedings \Vhich cullninutcd in ex. 56 order.
\Ve are left to co!1jecture their contents. The copies of the affidavits were not produced
in this case. Be that as it may, we think that the statements made by
the first defendant in some of the letters written by him while he was
in England that Krishnan would return to India cannot be taken as
conclusive of the fact that he entertained the view after taking legal
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advice from his lawyers that Krishnan was not domiciled in England
and the affidavits filed were, therefore, necessarily false. At any rate,
it is impossible to say that the High Court of Judicature in England
was tricked or misled to grant the declaration that Krishnan was domiciled in Engla~nd on the basis of the affidavits filed by the first defendant:There is nothing on record to indicate that it was the affidavits of
the first defendant which weighed with the High Court to grant the
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declaration. In these circumstances we think the High Court was not
justified in imputing fraud to the first defendant in procuring ex. 56
order.
It was argued that the evidence adduced in this case would show
that Krishnan "was not domiciled in England, that he did not renounce
his domicik of origin and acquired a domicile of choice and therefore,
this Court should hold that ex. 56 order was obtained by fraud.
The nature of fraud which vitiates a judgment was explained by
De Gr·oy, C. J. in The Duchess of Kingston"s Case(').
He said that
though a judgment would be res judicata and not impeachable from
within, it might be impeachable from without. In other words, though
it is not premissible to show that the court was mistaken, it might be
shown that it was misled. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an
action to set aside a judgment cannot be brought on the ground that
it has been decided wrongly, namely that on the merits, the decision
was one which should not have been rendered, but that it can be set
aside if the Court was imposed upon or tricked into giving the judgment.
We make it clear at the outset that we do not propose to discuss
the circumstances under which a domestic judgment can be set aside
or shown to be bad on the ground of fraud or to indicate the nature
of grounds or facts necessary to constitute fraud for that purpose.
It is now firmly established that a foreign judgment is impeachable
for fraud in the sense that upon proof of fraud it cannot be enforced
( 1) See Cheshire's Pri 11ate Inte~national Lav.', 8th Ed., 164.
(2) See the Speech .of Lord Atkinson in Winens v. A. G. [1904 A.C. 287]
(3) Smith's Le&ding Cases, 13th ed., 88, 641 at 651.
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by action or operate as res judicata.
The leading case on the subject
in England is
Abuu/ofj
v.
Oi;pcn!ieir:ier(' ).
This was an action
brought on a Russian judgment which ordered the return of certain
goods unlawfully detained by the defendant, or alternatively, the payment of their value. One defence was that the judgment had been
obtained by fraud in that the plaintiff had falsely represented to the
Russian Court that the dekndant was in possession of the goods the
truth being that the plaintiff himself continued in possession of them
throughout. It was demurred that this was an insufficient answer in
point of law, sine th, pica was one which the Russian Court could,
as a matter of fact did, consider, and that to examine it again would
mean a new trial on merits. Lord Coleridge, C.J. said that that English
Court will have to decide whether the foreign court has been misled by
the fraud of the plaintiff as the question whether it was misled could
never have been submitted to it, and never could have been in issue
between the parties and never could have been decided by it and, therefore, the English Court was not re-trying any issue which was or could
have been submitted to the determination of the Russian Court. The
learned Chief Justice also said that "the fraud of the person who has
obtained- the foreign _1udgrncnt, is none the
kss capable
of being
pleaded and proved as an answer to an action on the foreign judgment
in a proceeding in this country, because the facts, necessary
to
be
proved in the English Courts were suppressed in the foreign court by
the fraud on the part of the person who seeks to enforce the judgment
which the foreign court was by that person misled so as to pronounce.
Where a fraud has been successfully perpetrated for the purpose of
obtaining the judgment of a Court, it seems to me fallacious to say,
that because the foreign court believes what at the moment it has no
means of knowing to be false, the court is mistaken and not misled;
it is plain that if it had been proved before the foreign court that fraud
had been perpetrated with the view of obtaining its decision. the judgment would have been different from what it was".
In Vadala v. Lawe.1 ('). the piaintilI sued the defendant in Italy
for the non-payment of certain bills of exchange
which had been
accepted by the defandants' agent acting und·er a power of attorney.
The principal defence raised in the action was that the bills, which
purported to be ordinary commercial bills, were given in respect of
gambling transactions without the defendant's authority. The defence
was tried on its merits by the Italian iCOurt, but failed, and judgment
was entered for the plaintiff.
The plaintiff then brought an action in
England on the j11dgment. Again, no new
evidence was adduced.
Lindley, L.J. said that if the fraud upon the foreign court consists in
the fact that the plaintiff has induced that court by fraud to come to a
wrong conclusion, the whole case can be reopened although the court
in England will have to go into the very facts which were investigated,
and .which were in issue in the foreign court and that the fraud practised on the court, or alleged to have been practised· on the court, was
misleading of the court by evidence known by the plaintiff to be false.
The learned judge also said that there are two rules relating to these
·~(f) [18s2j-JO-Q.B~D. 295. (2) [18901 25 Q.B.D. 310.
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[1975) l s.c.R.
matters which have to be borne in mind, and the joint operation of
which gives rise to the difficulty. First of all, there is the general rule
that a party to an action can impeach the judgment for fraud and
second, there is the general proposition which is perfectly well settled,
that when an action is brought on a foreign judgment, a court cannot
go into the merits which have b~en tried in the foreign court and that
one has to combine these two rules and apply them in the case. He
then said :
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"The fralld practised on the Court, or alleged to have
been practised on the Court, was the misleading of the Court
by evidence known by the plaintiff to be false. That was the
whole fraud. The question of fact, whether what the plaintiff
had said in the Court below was or was not false, was the
very question of fact that had been adjudicated on in the
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foreign court; and, notwithstanding that was so, when the
Court came to consider how the two rules, to which I have
alluded, could be worked together, they said: "Well, if that
foreign judgment was obtained fraudulently, and if it is
necessary, in order to prove the fraud, to re-try the merits,
you are entitled to do so according to the law of this
country".
I cannot read that case (Abouloff's case) in any
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other way. Lord Coleridge uses language which I do not
think is capable of being misunderstood."
The latest decision in England perhaps is that of the Court of
Appeal in Syal v. Heyward(').
The facts of the case were:
"On February 12, 1947. the plaintiff obtained against the
defendants in India a judgment on a plaint in which he
alleged that he had lent the defendants rupees 20,000/-. On
November 28, 1947, by order of a master, that judgment was
registered as a judgment in the King's Bench Division under
s. 2(1) of the Foreign Judgments (Reciprocal Enforcement)
Act, 1933. The defendants applied for an order that the
registration of the judgment be set aside
pursuant to s.
4( I) (a)(iv) of the Act on the ground that it had been
obtained by fraud. They alleged that the
plaintiff had
deceived the court in India in that the amount lent to them
by the plaintiff was rupees 10,800/· and not. as the plaintiff
had stated. rupees 20,000/- the difference being made up by
commission and interest paid in advance, and that thereby the
plaintiff had concealed from the Indian court the possibility
that the defendants might have a defence under the I11dtan
usury laws."
Lord Cohen who delivered the judgment said in answer to the proposition of counsel to the efl'ect that where a judgment is sought to be
set aside on the ground of fraud, the fraud must have been discoverell
by the applicant since the date of the foreign judgment : ·
(I) [1948] 2 All E.R. 576.
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