|Case name||Sankaran Govindan vs Lakshmi Bharathi & Others|
|Case number||AIR 1974 SC 1764|
|Court||Supreme Court of India|
|Bench||Justice K K Mathew and Justice Kuttyil Kurien|
|Author of the judgment||Justice K K Mathew|
|Decided on||15 April, 1974|
Brief facts and Procedural History–
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’s death, 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 financial help for carrying on his studies from an elderly English lady by 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 good practice. He was later employed in the, National Health Scheme. He purchased a building viz., 75- Wood house Road, Sheffield, where he carried on his profession. He was living in a rented house at 97-Prince of Wales Road with Miss Hepworth. He had, at the time of his death, a private secretary named Mary Woodliff. The first defendant-appellant came to England both for the purpose of qualifying himself for F.R.C.S, and for taking back Krishnan to India. He prosecuted his studies in England 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, 1950 intestate. He had no wife and children and his assets in England consisted of the house at 75-Woodhouse Road, Sheffield, valuable movable 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.
After the institution of the suit, proceedings were started in England by Arksey and Mary Woodliff on the basis of a power of attorney executed 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 in 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. Schedule-C was not liable to be divided among the parties to the suit, that as Krishnan died domiciled in England, succession to the assets in Schedule-C was governed by 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 judicata.
The High Court confirmed the finding of the trial court.
Issue to be discussed –
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.
Arguments of the appellants –
(1) Approach of the Courts below is wrong since they should have first considered whether the judgment of English Court was not binding and should have gone into the question of domicile only 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 their 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 documents and evidence on record did not establish that the deceased was not domiciled in England.
Arguments 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. Not appointing a proper 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. The appellant know 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.
Ratio of the judge –
It is a well-established principle of private international law that if a foreign judgment was obtained by fraud, or if the proceedings in which it was obtained were opposed to natural justice, it will not operate as res judicata.
The traditional statement that, to establish domicile, there must be a present intention of permanent residence merely means that so far as the mind of the person at the relevant time was concerned, he possessed the requisite intention. The relevant time 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.
His aspirations, whims, prejudices and financial, expectation, all must be taken into account. Undue stress cannot be laid upon any single fact, however impressive it may appear when viewed out of its context, for its importance as a determining factor may well be minimised when considered in the light of other qualifying event. It is for this reason that it, is impossible to formulate a rule specifying the weight, to be given to particular evidence. All that can be gathered from, the, authorities, in this respect is that more reliance is placed upon conduct than upon declaration intention. “It is not by naked assertion, but by deeds and acts that a domicile is established”.
When an allegation is made that a foreign judgment is vitiated because the court was fraudulently misled by perjury, and issue is taken with that allegation and heard, if the only evidence available to substantiate it is that which was used in the foreign court, the result will be a retrial of the merits.
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 enforceable in India. A judgment or order declaring domicile of a person is a judgment in rem and in the proceedings to obtain such an order of judgment, notice need not be served upon all persons affected by the declaration or determination.
Thus the ex. 56 order was not valid as against the minors. The position, therefore, is that so far as the major respondents in ex. 56 proceedings were concerned, the court had jurisdiction since they submitted to its jurisdiction and the decision of the court would operate as res judicata. But the sale proceeds of the house in Sheffield has to be distributed accordingly to the English law. To this extent the judgment of the High Court was upheld but it was set aside in other respects.
In the result, it was held that the succession to the amount specified in Schedule-C minus the amount which represents the sale proceeds of the, house property in Sheffield must also be governed by English law and that the amount must be distributed between the first and second defendants in equal shares.