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SUPREME COURT OF INDIA
K.K. MATHEW AND A. ALAGIRISWAMI, JJ.
Sankaran Govindan, Appellant
Versus
Lakshmi Bharathi and others, Respondents.
Civil Appeal No. 1887 of 1967, D/-15-4-1974.
I. Domicile 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 satisfactory settlement. The traditional statement, that to establish domicile, there must be present an 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. It may be past or present. If the enquiry relates to the domicile of a deceased person it must be ascertained whether at some period in his life he had framed and retained a fixed and settled intention of residence in a given country. One has to consider the tastes, habits, conducts, actions, ambitions, health, 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. (Bell Vs. Kennedy, (1868) L. R. 1 S. C. & Div. 307, 323), Wivans Vs. A.G. (1904) A.C. 287 Referred to. (Para 20)
II. It is now firmly established that a Foreign Judgment is impeachable for fraud in the sense that upon proof of fraud it can not be enforced by action or operate as res judicata. It is not permissible to show that the court was mistaken, but it might be shown that it was misled. There is essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment can not 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 judgment. Although there is general acceptance of the rule that a Foreign Judgment can be impeached for fraud there is no such accord as to what kind of fraud is sufficient to vitiate a judgment. When an allegation is made that a Foreign Judgment is vitiated because the court was fraudulently misled by perjury and the 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 retrial on the merits. (Duchess of King'stons case, Smiths leading case 13th Edn 88, 641 at 651), (Abouloff Vs. Oppenheimer (1882) 10 Q.B.D. 295 referred to.) (Paras 24 & 31)
Civil Procedure Code (V of 1908), Section 13 & O.32-Foreign Judgment-Notice of the proceedings in Foreign Court served on minors through natural guardians not appointed as guardian ad litem-whether opposed to natural justice when procedure prevailing in Foreign Court followed-Decision whether Res Judicata as against minors.
When guardians of minor did not' appear on behalf of minor.
Held, that there was no substance in the contention that since the natural guardians on whom the notices of the proceeding were served were not appointed as guardians ad litem of minors" they had no opportunity to contest the proceedings on behalf of the minors and the proceedings were opposed to natural justice. It is extremely difficult to fix with precision the exact cases in which the contravention of any rule of procedure is sufficiently serious to justify a refusal of recognition or enforcement of a foreign judgment. If the proceedings be in accordance with the practice of the foreign court but if the practice is not in accordance with natural justice, this court will not allow it to be concluded by them. In effect, when the natural guardians were given notice of the proceedings on behalf of the minors, an opportunity was given to the minors to contest the proceedings. The requirement of natural justice was satisfied when the court appointed an officer of the court to' be guardian ad litem of the minors when the natural guardian did not appear before the court.
Held, further that the guardians of the minor did, not enter appearance on behalf of the minors and so it can not be said that the minors through the guardians submitted to the jurisdiction of the English Court and therefore the judgment of foreign court was not valid against the minors but so far the majors were concerned the court had jurisdiction and the decision would operate as res judicata.
(1808), 9 East 192 (1953) 2 E.R. 794 referred to. (Paras 39 & 47)
Judgment
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 Travancore 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 Schedules C to the plaint.
2. Krishnan had two brothers, namely, Padamanabhan and Govindan, the first defendant, and a sister, the second defendant Krishan 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 Padamanabhan 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 He worth. When Krishnan became qualified to practice 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-Woodhouse Road, Sheffield, where he carried on his profession. He was living in a rented house at 97-Prince of the Wales Road with Miss Hepworth. He had, at the time of his death a private secretary name Mary Woodliff.
3. 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.
4. 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 to the plaint are those properties.
5. As already stated, the second defendant defendant is the sister of Krishnan and 1st defendant, and plaintiffs 2 to 6 are 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 of Judicature in England and they were impleaded in the suit some time in 1953, well nigh two years after the original plaint was filed.
6. In the suit, as originally framed, the plaintiffs claimed partition of the items mentioned in Schedules A and B of the plaint. 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 movables 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.
7. After ex. 56 order was passed by the High Court in England, the plaint was amended with a prayer to divide this amount which was separately mentioned as Schedule-C.
8. The first defendant contended that the amount specified in Schedule-C was not liable to be divided among the parties to the suit, that as Krishnan died domici
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