Admissibility of judgment of French Courts in evidence before Courts in British India.

Lord Greene.-This is a re-hearing of an appeal by the Appellant from a decree, dated the 15th November, 1938, of the High Court of Madras, in its Appellate Civil Jurisdiction, dismissing the Appellants’ appeal from a decree, dated the 1st December, 1936, of the High Court in its Original Civil Jurisdiction. The present appeal was dismissed by Order in Council, dated the 22nd June, 1948, which gave effect to the humble advice given in the judgment of the Board delivered on the 17th June, 1948.1 The Appellants subsequently presented a petition asking that the Order in Council should be re-called and leave be granted for the appeal to be re-heard, alleging in support of the petition that their Lordships in coming to their conclusions had been misled with regard to a certain matter to which reference will presently be made. The prayer of the petition was granted and this re-hearing was ordered.

In the suit out of which the appeal arises the Respondent (Plaintiff) obtained a declaration that he was entitled to the property in suit as the adopted son of a Hindu widow named Vasavambal with consequential relief. The claim had been opposed by the Appellants (Defendants) on the ground that they were entitled to the property either by a gift inter vivos or by a gift by Will. On the original hearing of this appeal the Board was of opinion that the claim of title put forward by the Appellants could not be maintained and no attempt to support it was made on the present re-hearing. But Counsel for the Appellants then argued that the Appellants were in possession and could only be displaced if the respondent could make out a title, which they claimed he had failed to do The Board rejected the argument that the Defendants were in possession and as their claim of title failed their appeal necessarily failed with it. The appeal was accordingly dismissed. The reasons given in support of the petition for a re-hearing were that their Lordships were misled by certain statements appearing in the record from which it appeared to them that a receiver and not the Appellants was in possession at the date of the commencement of the suit; and that on a true view of the facts the Appellants were entitled to set up the plea of possession.

Their Lordships do not propose to examine further the question who was in truth in possession at the date when the suit was instituted. Clearly if the Appellants were not in possession they could have no locus standi to appeal, their claim based on title having admittedly failed. Their Lordships will assume (as was held by the trial Judge Record, page 40, line 4), that the Appellants were in possession and were, therefore, competent to maintain an appeal. On this footing it becomes necessary for the Board to examine again in this appeal the title by adoption which formed the basis of the Respondent’s claim. The Board on the original hearing stated,

“No doubt it is true that it was for the Respondent to make out to the satisfaction of the Court that he had a title which would warrant an order for delivery of possession to him. That he succeeded in doing.”

The effect of the failure of the Appellants to make good their claim based on title and the Board’s decision that the Appellants were not in possession made it unnecessary for the Board to examine what was the fundamental question in the case, namely, the validity of the adoption relied on by the respondent which had been established in the lower Courts. It is now necessary for the Board to consider whether the Courts in India were correct in holding that the adoption was valid.

Vasavambal was the widow of Calve Sadasiva Chettiar (hereinafter called "the deceased"), to whom the property in suit, which is situated in British India, had belonged. He and after his death his widow were admittedly domiciled in Pondicherry in French India and their personal law was governed by the law there in force. He died in the year 1891 without issue, and in the year 1906, Vasavambal made