JUDGMENT

Varadachariar, J. - On 1st April 1937, Burma ceased to be part of India. During the time that it remained part of British India, it was permissible, Under Section 17, Civil P.C., to include immovable property situate in Burma as part of the subject-matter of a suit instituted in any other Province. What is the effect of the separation on a suit of this kind which was pending at the time in a south Indian Court? That is the question raised for decision in this appeal. The principal respondent had instituted this suit more than ten years ago, praying either for recovery of the properties specified in Schedule C to the plaint or for a repatriation of the properties specified in Schedules A, B and C. The subject-matter of the suit was valued at about Rs. 22 lakhs and a large portion of the properties specified in Schedule C to the plaint was situate in Rangoon. The written statements of the contesting defendants were filed in October 1932, and issues seem to have been framed as early as in November 1933, and yet, for some reason or another, the suit did not become ripe for trial for several years--a feature by no means uncommon in Indian litigation, however much we may regret it. In the meanwhile came the separation of Burma; and, in November 1938, the contesting defendants filed an additional statement contending that the Court had thereafter no jurisdiction to deal with the Burma properties. An additional issue (No. 33) embodying this question was framed in June 1940, and after hearing arguments thereon, the trial Court gave a finding, in August 1940, to the effect that the Court had no longer jurisdiction to try the suit "regarding the moveables and immovables situated in Burma.

2. On a revision petition filed by the plaintiff against this order of the trial Court, a Division Bench of the Madras High Court held that the plaintiff's right to continue the pending action had not been taken away by the Constitution Act and that the combined effect of the relevant provisions of the law was to reserve to the Trichinopoly Court jurisdiction to try the suit See ('42) 29 AIR 1942 Mad. 614. The decision was based on the ground that Article 10, Government of India (Adaptation of Indian Laws) Order, 1937, provided that the powers which were exercisable by any authority (aword which, the High Court were of opinion, would include a Court) before the Act came into force should continue to be exercised even thereafter, until other provision was made by a competent Legislature or authority. The learned Judges were also of the opinion that the right to continue a duly instituted suit was in the nature, of a vested right and could not be held to have been taken away except by a clear indication of intention to that effect. They laid stress on the fact that the separation of Burma had been brought about by an enactment passed by a supreme Legislature which had the power to make what provision it liked even in respect of the separated territory and that Burma was accordingly not altogether in the position of a foreign State. Against this order of the High Court (dated 31st October 1941) this appeal has been preferred by the contesting defendants, on a certificate given by the High Court Under Section 205, Constitution Act.

3. The argument in support of the appeal was mainly based on the well-known principle embodied in the municipal law of all civilised States that a Court can have no jurisdiction to entertain an action for the determination of the title to or the right to the possession of foreign land. This contention ignores the circumstance, rightly stressed by the High Court, that in this case the two States concerned have not ab initio been independent foreign States, but represent areas which at one time had been constituted by parliamentary legislation into a single State and were later on split up by similar parliamentary legislation into two States. This peculiar feature of the case gives rise to three consequences, each of which ha