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Charles Arnold White, Kt., C.J.
1. The facts of this case are fully stated in the judgment of Moore, J., and in the judgment of my learned brother which I have had the advantage of reading. It is not necessary for me to repeat them.
2. The most important question argued in this appeal was the question of jurisdiction. It was argued by Sir V. Bhashyam Aiyangar on behalf of the appellant that the court had no jurisdiction in personam over the defendant by reason of the fact that he was a foreigner. In considering this question, I leave out of consideration for the moment the fact that the defendant was, on the day the suit was instituted, within the local limits of the jurisdiction of this court, and I propose first, to consider the question on the assumption that the facts were the same as they were in C.S. A. No. 5 of 1900. I held in that case’ that, if the cause of action had arisen wholly in Madras, this Court would have jurisdiction, over the defendant notwithstanding the fact that he was an absent foreigner. Sir. V. Bhashyam Aiyangar’s learned and elaborate argument has not led me to think that I was wrong in this view. I do not wish to repeat what I then said, but I. desire to add a few further observations. The question really resolves itself into what was the intention of the Legislature in enacting Article 12 of the Letters Patent. Questions of International Law and of the general principles of jurisprudence are only relevant in so far as they afford a guide for the construction of this particular enactment.
3. The general rule of course is extra territorium jus dicenti non paretur leges extra territorium non obligant; and the presumption is that the Legislature does not intend to exceed its jurisdiction. But it is only when the words of the enactment which create the jurisdiction leave room for doubt as to whether the Legislature or the sovereign authority intended to confer jurisdiction over foreigners that the occasion arises to consider the effect of the presumption or to apply the principles of International Law.
4. It seems to me that to give jurisdiction over an absent ‘foreigner, where the cause of action against him arises within local limits of the jurisdiction of the court is a legitimate exercise of sovereign right. On the question of the construction of Article 12 it may be borne in mind that the Letters Patent were issued under the power conferred by the High Courts Act of 1861, an Act of the Imperial Parliament and the law of England may be looked to for the purpose of ascertaining the intention of the Legislature in enacting the Article. The Common Law Procedure Act, 1852 (Sections 18 and 19) gave the Common Law Courts jurisdiction over a defendant not present in England when either the cause of action arose in England or depended upon the breach of a contract made in England. The general rule is laid down by Professor Dicey in his ‘Conflict of Laws’ in these terms: – “When the defendant in an action in personam is, at the time for the service of the writ, not in England, the Court has (subject to the exceptions hereinafter mentioned) no jurisdiction to entertain the action. See Rule 46, Dicey’s Conflict of Laws, page 237. The exceptions are the cases provided for by K.S.C. Order XI and Order XLVIIIA, page 238. Professor Dicey observes, that the “rule and the exceptions, taken together, constitute, what has hitherto hardly existed, a body of principles defining, in actions in personam the extra-territorial jurisdiction of the Court.”
5. Order XI of the rules of the Supreme Court draws no distinction between British subjects and foreigners as to their amenability to the jurisdiction of the English Court, the only distinction being that when the defendant is, neither a British subject nor in British dominions, notice of the writ and not the writ itself 5111 to be served upon him.
6. Speaking of Order XI Chitty, J. in the case of re Busfied L.R. 32 Ch. D. 123, observes : “The rules embodied in this order are founded on general principles of jurisprudence; and in the framing of these rules the whole subject has obviously been reconsidered and attention has been directed to the views entertained by the Courts of Scotland and Ireland and by foreign Governments, particularly that of Germany.” Sir V. Bhashyam Aiyangar’s proposition was that it was contrary to the principles of International Law for a court to exercise jurisdiction over an absent foreigner solely upon the ground that the cause of action had arisen within the local limits of the jurisdiction of the court. I do not think the more recent authorities support this proposition.
7. In the case of Annamalai Chetty v. Murugesa Chetty and Anr. (1903) I.L.R. 26 M. 544 the Privy Council were dealing with an appeal from this Court, in which this court, reversing the decision of the District Court, had dismissed a suit which had been brought on a decree obtained in the French Court at Pondicherry. The ground on which the plaintiff contended that the District Court had jurisdiction over the appellant was that he carried on business within its jurisdiction (Section 17 of the Code of Civil Procedure.) This Court held that he did not carry on business within the jurisdiction and dismissed the suit upon that ground. The Privy Council affirmed the decision. In delivering the judgment of the Privy Council, Lord Lindley observed : “In both Courts in India it was apparently assumed that the question of jurisdiction turned on Section 17 of the Code of Civil Procedure and that although the defendant was a foreigner, and although the cause of action arose in a foreign country and although the defendant did not personally reside within the local limits of the jurisdiction of any Court in British India, and was not even temporarily in Arcot when sued there, yet he could be sued in the Arcot Court if he carried on business through an agent in the local limits of the Court’s jurisdiction. This assumption appears to their Lordships to require more attention than it has received.”
8. Lord Lndley here enumerates a series of circumstances which, if they co-existed, would make it doubtful whether the mere fact of carrying on business through an agent within the local limits of the jurisdiction of a .British Indian Court would give that court under Section 17 of the Code of Civil Procedure jurisdiction over an absent foreigner. One of the series of circumstances is that the cause of action arose in a foreign country. The observation, therefore, does not apply where the cause of action arises within the local limits of the jurisdiction of the court in which the action is brought. Lord Lindley continued. “Their Lordships see no reason for doubting the correctness of the decision of the case of Girdhar Damoder v. Kassigar Hiragar (1893) I.L.R. 17 B. 662 where the defendant was a native of Cutch and the cause of action arose within the local limits of the jurisdiction of the British Indian Court in which the action was brought. But that case does pot cover the present one.”
9. It seems to me that this observation must be taken to have been made with reference to the general principles of International Law and not with reference to the special enactment which was relied on as giving jurisdiction in Girdhar Damodar v. Kassigar Hiragar (1893) I.L.R. 17 B. 662. The enactment there in question was the Bombay Small Cause Courts Act, and under that Act the arising of the cause of action within the local limits does not give jurisdiction unless leave to sue is given, and leave was not given in that case.
10. Sir V. Bhashyam Aiyangar contended that Lord Lindley’s observation with reference to the Bombay case was only intended to apply to cases where the defendant carried on business within the local limits of the jurisdiction of the British Indian courts. I see no reason why we should so limit the application of this expression of opinion by the Privy Council. In appeal No. 109 of 1903 (Vide, Tadepalli Subba Rao v. Nawab Sayed Mir Gulam Alikhan (1905) I.L.R. 29 M. 69 the plaintiff sued on a promissory note payable within the local limits of the Sub-Court in which the action was brought. The defendant did not reside or carry on business within the jurisdiction. The Sub-Court dismissed the suit on the ground that it had no jurisdiction. This Court held that the Sub-Court had jurisdiction to entertain the suit, Sir S. Subrahmania Aiyar, J., in his Judgment points out that the ground upon which the Privy Council in Annamalai Chetty v. Murugasa Chetty and Anr. (1903) I.L.R. 26 M. 544 upheld the decision in Girdhar Damodar v. Kassigar Hiragar (1893) I.L.R. 17 B. 662, was that the cause of action had arisen in Bombay, and that the same ground of jurisdiction existed in the case then before this court, and the learned Judge was of opinion that the question was governed by the latest pronouncement of the Judicial Committee (i.e., the opinion expressed in the Judgment delivered by Lord Lindley in the case to which I have referred,) upon the point. I entirely agree with my learned brother’s conclusion. I do not, however, take quite the same view as he appears there to have taken with reference to the effect of Lord Selborne’s judgment in Faridkote case. My learned brother reads Lord Selborne’s judgment in that case as containing a statement of the law that “the accrual of a cause of action” in a particular place does not confer on the courts of that place jurisdiction over a non-resident foreigner.” It seems to me that the question of whether the accrual of the cause of action confers jurisdiction must depend on the terms of the enactment which creates the jurisdiction. If the enactment confers the jurisdiction, the court cannot decline to exercise the jurisdiction on the ground” that the conferring of the jurisdiction was contrary to the general principles of International Law. I do not think this proposition is inconsistent with Lord Selborne’s judgment, taken as a whole. In my judgment in O.S. Appeal No. 6 of 1901 I said : “In the Faridkote case the actual point decided by the Privy Council was that when a decree had been obtained exparte in the Courts of a Native State against a defendant who was not a subject of that state, an action founded on this decree ought not to be entertained by the courts of another state or country…Lord Selborne, in pronouncing the judgment of the Judicial Committee observes: – ‘In a personal action to which none of these causes of jurisdiction referred to by Lord Selborne, (being all causes of a general territorial character) a decree pronoupced in absentem by a foreign court, to the jurisdiction of which the defendant has not in any way submitted himself, is by International Law an absolute nullity. He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the courts of every nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced.’ Here the words ‘absolute nullity’ are clearly qualified by the words in parenthesis at the end of the passage (1900) 11 M.L.J.R. at p. 107.”
11. The question for decision in the Faridkote case was not whether territorial legislation could give jurisdiction against a foreigner, but whether territorial legislation could give jurisdiction against a foreigner – which a Jordan court ought to recognise. Lord Selborne’s words are “no territorial legislation can give jurisdiction which any foreign court ought to recognise against foreigners who owe no allegiance or obedience to the power which so legislates.” So, in the case now before us, the question is not – will a decree of this Court against the defendant be recognized and enforced by the courts of another state or country, but has this Court under the enactments which create the jurisdiction of this court, jurisdiction to make a decree against the defendant? This distinction’ is pointed out in the judgment of the Bombay High Court in Rambhat v. Shankar Baswant (1900) I.L.R. 25 B. 528 where it was held that under the Civil Procedure Code British Courts are empowered to pass judgment against a non-resident foreigner provided that the cause of action has arisen within the jurisdiction of the court pronouncing the judgment. In his judgment in that case, Candy, J. observes : “It must be remembered that in one aspect the present case is the converse of the Faridkote case Gurdyal Singh v. Rajah of Faridkote (1895) 21 I.A. 171. Suppose the defendants in this case resided in Belgaum, but the contract giving rise to the cause of action, had been made in Sangli territory, and the Sangli court had assumed jurisdiction and passed a decree against the defendants, then the question would arise, if plaintiff brought a suit in Belgaum against the defendants on the foreign judgment, whether the British courts could recognise such assumption of jurisdiction, and would treat the foreign judgment as a nullity. So too if the Subordinate Court should pass judgment in the present case against defendants, and plaintiff should bring a suit on that judgment in the Sangli court, it may be said that the question would arise in the Sangli court, whether such judgment should not be treated as a nullity. The question for our consideration is not whether the Belgaum Subordinate Judge can recognise a certain judgment of a foreign court, or whether a foreign Court would recognise the judgment of the Belgaum Subordinate Judge if delivered against the defendants in the present case. So conversely m the Faridkote case the question was not whether the Fandkote court had jurisdiction to pass the judgment it did, and not whether that judgment was valid within the Faridkote territory”. The answers to both those questions were apparently in the affirmative.
12. I have so far dealt with the wider question which was argued in this case and in O.S. Appeal No. 6 of 1900. The facts of the present case, however, differ very materially from the facts in the earlier appeal. In the present case the defendant was within the local limits of the jurisdiction on the day the suit was instituted. I am of opinion that, even if the court would not otherwise have had jurisdiction, this fact gives jurisdiction. The rule as stated by Professor Dicey is “When the defendant, in an action in personam, is, at the time for the service of the writ, in England, the Court has jurisdiction in respect of any cause of action in whatever country such cause of action arises.” It is to be observed that the test as laid down by Professor Dicey as regards the High Court in England is not service within the territory but presence within the territory at the time for service. Professor Dicey observes (Conflict of Laws, page 45) : “The High Court or rather the Courts of Common Law and of Equity…have always claimed jurisdiction in personam over a defendant in virtue of the service upon him of the King’s writ, and as the writ can be served upon any one in England, and cannot, except under statute, be served upon any one out of England, this has been in effect a claim to jurisdiction based on the presence of a defendant in England. But such jurisdiction, though originating in technical rules of practice, is in reality based upon the principle of effectiveness. Whenever the King of England could serve a defendant in England with the Royal writ, or command, the King could, if he chose, make his judgment effective against the defendant. It is not really necessary to consider the further question whether in a case like the present – i.e., a case where the defendant was present within the jurisdiction at the time the action was commenced, a foreign state or country would enforce a judgment given by this Court against the defendant. But the question is not irrelevant, because although it does not follow that because this Court gives a decree against the defendant the courts of a foreign state or country would enforce it, it does follow that a foreign court would not enforce a decree given by this Court unless it were satisfied that this Court had jurisdiction to make the decree.
13. In dealing with the jurisdiction of foreign courts Professor Dicey observes (Conflict of Laws, page 374): ” Is residence in the strict sense of the term, necessary, or will the mere presence of the defendant in the foreign country, e.g., France, be enough to give the French Court’s jurisdiction? The answer (probably) is that his presence is enough or, in other words, that residence means for the present purpose nothing more than such presence of the defendant as makes it possible to serve him with a writ, or other process by which the action is commenced.” The judgment of Lord Russell in Carrick v. Hancock (1895) XII Times L.R. 59 is an authority for the proposition that the English courts will enforce the judgment of a foreign court where the defendant was present in the foreign country at the time the action was commenced. In this country, I think the test is – not service of the summons within the local limits, but presence within the local limits at the time of the commencement of the suit. There can, I think, be no question that in this country, except in certain excepted cases, a suit is commenced by the presentation of the plaint. Section 48 to the Code of Civil Procedure says, “every suit shall be instituted by presenting a plaint, & c,” and the form of summons recites that a suit has been instituted. See Form 119, Schedule IV, Code of Civil Procedure. The explanation to Section 4 of the Indian Limitation Act says that a suit is instituted, in ordinary cases, when the plaint is presented to the proper officer. Sir V. Bhashyam Aiyangar contended that according to the provisions of International Law presence within the jurisdiction at the time the suit was instituted, was not enough and that unless the defendant was served with the process of the court within the local limits, the court had no jurisdiction. It seems to me that the authorities do not support this proposition. Sir V. Bhashyam Aiyangar further contended that on the evidence in this case the presence of the defendant was not such as would give jurisdiction but he declined to attempt to define the presence which would give jurisdiction as distinguished from the presence which would not.
14. I am of opinion, on the facts proved in this case, that the presence of the defendant within the local limits at the time the suit was instituted was such as to give the court jurisdiction over him.
15. In the course of the argument, the Charters of the High Court of Judicature at Madras and of the courts which preceded it were minutely examined and discussed. In the view which I take, it is not necessray for me to express an opinion whether apart from Article 12 of the Letters Patent, this Court has jurisdiction to entertain this suit under the jurisdiction which was conferred upon the abolished courts and which is now vested in the High Court. I will content myself by saying that in enacting Article 12 of the Letters Patent, I do not think the Legislature intended in any way to cut down the jurisdiction formerly exercised by the courts whose jurisdiction is now vested in the High Court. In a Bengal case, Punchanund Bose v. Davison Morton’s Decisions 149 a case apparently decided under the Bengai Charter of 1774 – it was held that a defendant, who was not a British subject, was liable to the jurisdiction as the plaint was filed when he was in Calcutta, East, C.J., observed “Twenty-four hours is a sufficient residence to render a person subject to the jurisdiction.”
16. As regards the meaning of the word “dwell” as used in Article 12 of the Letters Patent, Moore, J., considered that the present case was governed by the decision of the Bombay High Court in Goswami Shri 108 Shri Girdharji v. Maharaj Shri Govardhan Lalji Girdhariji Maharaj (1891) I.L.R. 18 B. 290. This case went to the Privy Council where the appellants’ counsel abandoned his contention that the defendant “dwelt” within the local limits of the jurisdiction. But for this authority Moore, J., was prepared to hold on the facts of the present case that the defendant ‘dwelt’ within the local limits at the time the suit was commenced. It seems to me that the present case is not governed by the decision which Moore, J., felt bound to follow. The authorities upon the point are discussed in the judgment which has been written by my learned brother. I entirely agree with his reasoning and with his conclusions. I also agree with my learned brother for the reason stated by him in the judgment, which he is about to deliver, that the cause of action in the present case arose, at any rate in part, within the local limits of the jurisdiction and that the property dealt with in the will was property which the testator could dispose of by will.
17. I think Moore, J’s order was right and that this appeal should be dismissed with costs.
Subrahmania Aiyar, J.
18. Venkatavarada Aiyangar, whose only son is the defendant, lived till he was twenty years of age with his father Srinivasa Aiyangar, who was employed in the Public Service in the District of Madura in this Presidency. Owing to disagreement between the two, Venkatavaiada Aiyangar went away in the year 1854 to Mysore and there entered the service of the Durbar as a clerk on a salary of Rs. 30 per month. He was apparently a man of considerable ability and eventually rose to the important post of Secretary in the Legislative Department in that Province which carried with it a salary of Rs. 800 and which he held till he returned in the year 1890 on pension. He died on the ’24th of August 1892 possessed of property moveable and immoveable of the estimated value of about four lakhs of rupees.
19. By his last Will and Testament, which bore the date, 3rd August 1892, he gave legacies to his widow, his only daughter and other relations, directed the carrying out of certain charities and made the defendant his residuary legatee. The executors appointed under the will were the defendant’s father-in-law, Venkatavarada Aiyangar who refused to act, the defendant himself and the three plaintiffs, in the present suit (of whom the first and the second are now deceased). Of these, the 2nd plaintiff Biligiri Aiyangar only was then resident in Madras, he having been a Solicitor practising in this court. The other plaintiffs and the defendant were residents of Mysore though the third plaintiff, the husband of the testator’s daughter subsequently settled with his wife in this city. The defendant was born about the year 1872 in Mysore and throughout this litigation he as well as his father has been taken as domiciled there, and as subject to the same system of Hindu Law as that administered in this part of British India.
20. After the testator’s death the executors obtained probate of the will from the British Resident’s Court in the Civil and Military Station of Bangalore, which, however, was not the court of the place of the testator’s domicile, he having been a permanent resident of Bangalore City in Mysore Territory proper. Subsequently on the 20th February 1893 they applied to this Court for probate of the will and obtained it on the 5th May, after giving the prescribed undertaking to administer the estate and to file inventories and accounts, the probate being confined to the assets in this Presidency. By virtue of this probate, the defendant admittedly realised and obtained possession within the limits of the ordinary original jurisdiction of this Court of moveable assets of the value of about Rs. 60,000. Among the assets of the testators were monies due on certain life policies aggregating Rs. 50.000. Under the will, this amount had to be invested in Government papers and four-fifths of the interest thereof were payble to the testator’s daughter for her life and the remaining one-fifth to his widow for life and after her to the daughter for her life. Of the corpus, the whole was to pass to the daughter’s children, and in the event of no children surviving, her, to the defendant, he being in that event liable to pay half the interest on the said four–fifths to her husband the third plaintiff, for his life. When these insurance monies were received, the defendant managed to persuade the other executors to consent to his taking sole possession of the fund on the promise that he would invest the same according to the will and apply the interest in payment to the legatees concerned. He however did not invest the money, as he should have done, but lent it to certain parties taking securities in his own name. One of these loans, viz., of the sum of Rs. 27,000 to K. Shama Aiyangar, was made in this city. Biligiri Aiyangar alone approved of these loans being granted, while the widow, the daughter, the late B. (1. Krishna Aiyangar, the first plaintiff and the third plaintiff all objected to and protested against such application of the fund. The defendant made payments for a certain time on account of the interest due to the widow and the daughter, but subsequently withheld payment and in August 1898 he intimated to the plaintiffs and to the said legatees that he repudiated his position as executor and trustee under the will, which, he urged, was invalid, and not binding on him, as the whole of the property referred to in it was the joint property of himself and his father over which the latter had no power of testamentary disposition. After this, nothing was done by him in the way of the administration of the estate which he proceeded to deal with as his own. The daughter thereupon instituted C.S. No. 70 of 1899 against the defendant and the present plaintiffs to compel performance of the trusts created in her favour by the will, but in so far as the present defendant was concerned the suit was dismissed on the ground of want of jurisdiction over him. As regards the present third plaintiff and the representatives of first and second, the suit is still pending, they being sought to be made liable for the loss caused to the plaintiff there in consequence of the breach of trust on the part of their co-trustee, the present defendant. When the dismissal of that suit as against the defendant was upneld on appeal, the present action was commenced on the 30th August 1901, leave to institute it having been granted on the 28th idem on the ground that part of the cause of action arose within the limits of the ordinary original civil jurisdiction of this court. Though the defendant was residing in Bangalore City prior to March 1901, in that month he removed to Madras with his wife and child having rented a house within the jurisdiction of this Court, in the suburb of Mylapore. In that month he entered into articles of apprenticeship with Mr. Bamachendra Rao Saheb, one of the vakils of this court, in order to study with him and qualify for enrolment as a vakil of the court, the terms of study and attendance required for the purpose extending under the rules over a period of twelve months. In June 1901 he paid 8 months’ rent in advance with a view to occupying the house for the whole of that time and stayed in Madras till the afternoon of the 81st August when he went back to Bangalore. In the meantime he probably paid a visit for a few days to Madura where some of the landed properties mentioned in the will are situated. Assuming that he went to Bangalore on the 25th of that month, as he says he was back again in Madras and spent the 30th and the 31st here. His wife and child were all the time in the house at Mylapore. I disbelieve the defendant’s statement that he resolved to remove to Bangalore and announced that intention about the 25th, even supposing that such intention or announcement were in any way material to the case which, of course, they are not. His own evidence as well as that of his witnesses on the point is, in my judgment, of no value. His statement that he left Madras owing to the ill–health of his wife and of himself was, I think, rightly discredited by the learned Judge. The truth appears to be that it was only after the defendant became aware of the institution of the present suit that he left. Madras in order to avoid the service of the summons being effected on him personally within the jurisdiction. The suddenness and the hurry which marked his leaving Madras on the 31st and which apparently prevented him from even communicating to Mr. Ramachandra Row Saheb that he was going away are strongly in favour of the above view. When the defendant left Bangalore in March he had his house there shut up employing only a watchman to look after it and in the instrument of apprenticeship executed by the defendant Mylapore was stated to be his place of residence.
21. Now as regards the character of the “property referred to in the will. Part of the property was no doubt ancestral having devolved on the testator in the partition which took place between him and his half-brothers in the year 1864, that is, two years after the death of their father Srinivasa Aiyangar. The ancestral share consisted partly of landed property which is not shown to have yielded any considerable income – viz., a house and a cart-stand in the town of Madura itself and some agricultural land in certain villages in that District – and the remainder, Government pro-note of the value of about Rs. 8,000. The case of the defendant is that with the moveable property thus received, the testator traded in cotton and made large profits, that these profits, the savings of the tesator from his salary and the income of the landed property in Madura were from the beginning mixed up and since the defendant’s birth in 1872 held jointly by both, and that, consequently, the testator had no power to dispose by will of any portion of such joint estate. Some oral evidence was called as to the testator having for the first time commenced trading in cotton with the money got by him at the partition, but on the face of it, it is worthless. It is admitted that from the time when the testator came away to Mysore having quarrelled with his father up to the time of the partition, he got nothing whatever from the paternal estate. Between 1854 and 1864 be rose in the service and at the time of the partition he, held the post of Sheristadar on Rs. 300 per mensem. That he had during the period, put by the comparatively large sum of money, is proved by the fact that subsequent to his father’s death, pending the division of the estate, the testator advanced in connection with his father’s exequial ceremonies and the maintenance of his step-mother and step-brothers as well as other expenses connected with the undivided family, no less than Rs. 7,000 which were recouped to him at the time of the partition. That he had at the time more money than the said Rs. 7,000 also appears from the evidence. As it is unlikely he could have saved so much as this from his pay merely and as even before 1864 he had been engaged in trade in cotton in partnership with others, the suggestion that his trade profits were all to be traced to what he got at the partition mast be rejected. Nevertheless there remains the question whether the testator kept his own earnings separate from the property which came to him at the time of the partition, as he was entitled to do, so as to preserve his complete control over the same, or incorporated them all into one estate so as to make the whole the joint property of himself and of any male issue he might beget. That the testator adopted the former course cannot be doubted. The assertion in the will itself to that effect is not a bare unsupported statement, for he refers to accounts kept up by him although showing what were his own acquisitions and what were ancestral. That this precaution was adopted from the time of the partition appears from the partition deed itself in which he takes care to say that the advances to the family were out of his “own” funds. As at that time be had no son the immediate object of keeping such accounts could’ not have been the retention of the power of disposition in his own hands as against his issue. The reason for his keeping separate accounts thus is to be found in the existence of step-brothers who were minors at the time. That he anticipated claims on their part with reference to his own acquisitions will be seen from the defendant’s letter dated 26th June 1895, Exhibit G, an anticipation which was not altogether ill-founded, considering that soon after his death one of the stepbrothers did set up, a claim that all the estate the testator had was the joint property of the testator and his brothers. But be the reason what it may, there is no doubt, as already stated, that the testator left at his death documents which would clearly show how much of the assets left by him were his own acquisition and therefore, at his disposal. That these documents passed into the hands of the defendant is proved by his own affidavit filed in this, court. They have not now been produced and it is certain that they are with-held by the defendant because they would disprove his story that the testator had incorporated all property which came into his hands into one joint estate. The conduct of the defendant during the six years between 1892 and 1898 is consistent only with the view just stated. The defendant was not altogether uninformed at the time of the testator’s death : he had graduated in Arts by that time and was then studying Law in the Madras Law, College where he underwent the whole course of instruction prescribed for the examination for the Bachelor of Laws Degree which he eventually took. His correspondence’ with Biligiri Aiyangar shows that even in 1892 he had paid close attention to the law as to the rights of members of an undivided family and the story he now tells that it was owing to ignorance of the rights that he continued to act upon the will is an utterly incredible and untrue story, It must therefore be taken as well established that except the house, the cart-stand and the Bodinayakkampatti ana Athur lands (Exhibit E.) the rest of the property dealt with by the will were the testator’s own acquisition and at his disposal by will or otherwise.
22. Such being the facts of the case so far as they are material, I have now to consider the question of jurisdiction which was argued at length and learnedly on both sides. I shall deal with this point first with reference to Section 12 of the Letters Patent.
23. In proceeding to do so, I ought at once to say that the rule of the Civil Law actor sequitur farum rei so much relied on by Sir V. Bhashyam Aiyangar in the course of his argument has nothing whatever to do with this case in its circumstances. The contrast which exists between the Civil Law and the Common Law system, as it has been called in regard to a matter such as this, has been brought out Very elegantly by Mr. Pillet (referred to by Westlake as one of the latest and ablest writers on Private International Law – Westlake’s Private International Law, page 23, fourth edition) in a paper published in March last strongly advocating the unification, subject to absolutely necessary exceptions, of the rules as 10 jurisdiction over foreigners. He says “Jurisdiction of English Courts of Justice over personal actions depends on rules quite different from those which governed Roman, and still control French law. More than that, the very spirit of these rules and the manner of their construction belong to systems very far apart. In France (as formerly in Borne) one asks first if the French courts have jurisdiction : this primary Question out of the way, the law gives the complainant a way of summoning his opponent before the tribunal which is to judge him. In England and America the process is reversed; one seeks first to find out if the writ of summons (l’assignation) can be legally delivered to the person wanted (personal service) or something equivalent done (substituted service). Then, once it is established that the writ can be regularly served, the jurisdiction of the English courts naturally follows. (Harvard Law Review, Vol. XVIII, page 335). The Enlish rule, it must be observed, undoubtedly rests on a. principle of prime importance to every Government–the principle of local allegiance which Phillimore classes under the head of a state’s self–preservation (Phillimore’s International Law, Vol. I, pp. 320 and 454). A foremost English authority on this point in the passage cited by Mr. Cohen in Carrick v. Hancock XII T.L.R. 59 from Calvins case (7 Rep. 9) where Sir E. Coke divides allegiances into natural, acquired, and local, the last of which he defines to be “when an alien in amity cometh into England, because so long as he is within England he is within the King’s protection, therefore so long as he is here he oweth unto the king a local obedience, or allegiance, for the one (as it hath been said) draweth the other.” It is not necessary to refer to the other authorities to which the Advocate-General called our attention in regard to a proposition so fundamental.
24. With reference to this, Sir V. Bhashyam Aiyangar urged two contentions. The first of them was that the presence of a foreigner in order to confer jurisdiction should be an abiding in the place involving permanency (though not of the character required to establish a domicile) as opposed to a temporary stay or a mere temporary locality of existence. But, it is perfectly clear that this distinction is not drawn by the authorities and that such of them as refer to residence in this connection do not mean residence in any technical sense. Phillimore in all the passages cited by Sir V. Bhashyam Aiyangar uses the term “commorant” (International Law, III Edn., Vol. I, pp. 320, 443, 446, and 454, and Vol. IV, p. 25) which is apparently now in vogue only as a legal term and means “dwelling, ordinarily residing, inhabiting.” Webster, from whom this explanation is taken, adds that in American Law it means “inhabiting or occupying temporarily.” The passage, in page 320 of Phillimore, viz.,” strangers, whether domiciled and commorant (habitants) or merely travellers through the country (etrangers qui present)” shows that the term in question is used only by way of contrast with mere passage through the country and does not necessarily involve any definite duration, intent or other special element; nor does the conjunction of ‘commorant’ with ‘domicile’ in that passage imply more, for in Vol. IV, p. 725, the author writes, “It is true, that to this proposition is generally not added by writers the qualification, that the defendant should be domiciled in order to found the competency of the tribunal; but not domiciled in the strict sense of the term, animo et facto, with intention of permanent residence, domiciled in the sense of commorant appears to be all that the English Law requires.” Story on Conflict of Laws, to which also Sir V. Bhashyam Aiyangar referred us, is even more clear, for, in Section 29, the second of the axioms of Huberus is stated to be that all persons who are found within the limits of a Government, whether their residence is permanent or temporary, are to be deemed the subjects thereof. In Section 541, the same axiom is quoted with the comment “And further, that he (the Sovereign) may of strict right make laws for all foreigners who merely pass through his dominions, although commonly this authority is exercised only as to matters of police.” In Exparte Blain L.R. 12 Ch. D. p. 526 James, L.J. says : “Every foreigner who come into this country for however limited a time, is, during his residence here, within the allegiance of the Sovereign, entitled to the protection of the Sovereign and subject to all the laws of the Sovereign.” If it be necessary to fortify further the statement that the presence of a foreigner within the local limits confers jurisdiction, without reference to the length of his stay, I cannot do better than call attention to an observation of the Earl of Selborne in the Earidkote case, to what fell from Lord Russell of Killowen in Carrick v. Hancock and to a passage in the judgment of Baldwin, J. in Fisher, Brown & Co. v. Fielding decided by the Supreme Court of Connecticut. It is noteworthy that these were all cases in which foreign judgments were sought to be enforced and therefore a fortiori’ cases, since it is very common for the courts of a country to entertain actions under circumstances in which they would not admit that the jurisdiction would be sufficiently founded to entitle the judgment of a foregin court pronounced under similar circumstances to be recognised as internationally binding (Westlake’s Private International Law, 4th Edition p. 232. See also Dicey’s Conflict of Laws, p. 45). In the first of the cases referred to, viz, the Faridkote case, the Earl of Selborne says “Territorial jurisdiction attaches with special exceptions upon all persons either permanently or temporarily resident within the territory while they are within it” L.R. 211. A. p. 185. In the second case Lord Russell of Killowen points out that “the time the person is actually in the territory is wholly immaterial.” The following extract from Baldwin, J.’s judgment referred to which was concurred in by the majority (the dissent, being on a point not material here): – “The rights of sovereignty extend to all persons and things, not excepted by some special privilege, that are within the territory of the sovereign. An alien friend, however transient his presence may be, is entitled to a temporary protection and owes in return a temporary allegiance. The fact that the defendant was a foreigner, making but a brief stay (of 2 days) in the country, and on the point of leaving it for his own, did not deprive the courts of England of all jurisdiction over him 12 T.L.R. at p. 60. The Common Law, so far as it concerns the enforcement of a pecuniary liability, goes further (than the Roman Law) and operates alike upon every private individual who may be found, however, transiently within the territories where it is in force.” (32 Lawyers’ Reports. Ann. at p. 239.)
25. The next contention of Sir V. Bhashyam Aiyangar was that to found jurisdiction over a foreigner present within the limits there should, in addition, be personal service of the writ on him while within the territory, or at least such process should have been actually issued during the time of the presence of the defendant. This is obviously untenable: for the jurisdiction springs up as the result of allegiance existing at the time of the commencement of the action and not of any subsequent process in it. The Lord Chief Justice clearly means this in Carrich v. Hancock 12 L.R. 59 when he says. “The duty of allegiance is correlative to the protection given by a state to any person within its territory. This relationship and its inherent rights depend upon the fact of the person being within its territory” and Baldwin, J. in the judgment already quoted from puts the same in somewhat fuller terms: “The defendant accepted the forum when he voluntarily placed himself on English soil, and so came under an implied. obligation to respect such legal process as might be served upon him there, to the extent of satisfying any resulting judgment duly rendered for a pecuniary demand. The law raises this obligation because the interests of human society require it, and it is not escaped by departing from one country into another ” (32 Lawy, Rep. Ann. at p. 241). The mention in some of the authorities relied on by Sir V. Bhashyam Aiyangar in support of the present contention of his, of service of writ on the defendant, must be understood as made with reference to the practice of beginning an action by a writ and has no literal application to cases in this country where according to the prescribed procedure, save in exceptional cases expressly provided for by the statute, e.g., Section 22 of the Indian Limitation Act and Section 32 of the Civil Procedure Code, the suit is commenced by the presentation of the plaint as appears inter alia from the terms of the very form of summons to the defendant prescribed by Rule 22 of the Rules of the Court on the Original Side. Matters connected with service of process though they may affect the progress of a cause or its result are obviously in their nature matters of mere procedure and in no sense jurisdictional cf. Duder v. Amsterdamsch Trustees Kantoor (1902) 2 Ch. 132 at 143; see also Dicey’s Conflict of Laws p. 35). With reference to this conclusion that jurisdiction over a foreigner present, is independent of actual service of process on him within the territory, no doubt, it may naturally enough be asked how then does the rule come to be formulated in the terms employed by writers on the subject as for example by Dicy : “the legal service of a writ defines jurisdiction” (Conflict of Laws page 234). The answer is furnished by the now–forgotten origin of these rules as explained by Mr. Pillet thus: – “The two great traditional rules of English law in regard to jurisdiction (over foreigners) are thus described. – Whenever the defendant, even if only passing through the country, is found on English soil, so that in consequence the writ of summons can be personally served, the English courts can take cognizance of the personal actions which concern him. And conversely, in principle at least, (for this second rule is far from being as absolute as the first) whenever the writ cannot be delivered to the defendant personally, because he is not on English soil, the English courts have no jurisdiction over him. We do not think these rules could form the basis of a good international system of jurisdiction. They represent for us the law of a period when the working of justice was uncertain, its means of action few and limited and when the first condition of obtaining the satisfaction demanded from a debtor was the ability to put your hand on his collar. At that same time the magistrates of your parliaments were obliged to leave their seats to watch personally over the execution of their decrees. It is common knowledge that this was the origin of the judicial vacations. Moreover, it must be noticed that in those old days the arrest of the body was the common right, so that the presence of the debtor at the bar of the tribunal was usually a sufficient guarantee to the creditor of the effective execution of his judgment. Times have changed, however. To eyes not accustomed to those things by the daily course of practice such principles seem very extraordinary” (18 Harv. Law Review, pp. 335 and 336). Needless to say our present concern is neither with the view urged by the learned writer that the English rules in question are less suited than the French rule of jurisdiction – the tribunal of the domicle – to form the basis of a good international system of jurisdiction, nor, with how the English rules have come to be expressed in the round about fashion in which they are stated; but with their substance, i.e., with the principle on which they are now rested by the accepted authorities in actual practice. It follows from what has been said that the presence of the defendant on the 30th August in Madras placed him for the time being precisely in the position of an ordinary subject of His Majesty with reference to the question of jurisdiction. Consequently, in deciding it with reference to the language of Section 12 of the Letters Patent there is no scope for resorting as there might be, were the defendant a non-resident foreigner, to the rule of construction that in interpreting parliamentary statutes, judges will, where the language admits of it, proceed on the presumption that legislature did not intend to contravene principles of International Law.
26. Such being the case, there can be no doubt that this court, had jurisdiction under the section on the ground that the defendant was at the time of the commencement of the suit dwelling within the ordinary original jurisdiction of the court and also on the ground that part of the cause of action accrued within those limits, leave having been obtained as required by the section Before stating the reasons for this conclusion I ought to say thSt the suggestion of Sir V. Bhashyam Aiyangar that a comparison of the section in question with the corresponding provisions which governed the Supreme Court (to whose jurisdiction and powers, the High Court succeeded) shows an intention on the part of the framers of the Letters Patent to limit rather than extend the jurisdiction and powers, is to my mind the very contrary of their intention. This is shown by the fact that the accrual of even a part of the cause of action within the limits has been made a sufficient ground of jurisdiction if leave be obtained. Nor should the word “dwelt” be understood to have been used in any narrow or technical sense considering that very early the Judges of the Supreme Court at Calcutta had ruled that such short stay as twenty-four hours on the part of the defendant within the limits of the court enabled it to exercise jurisdiction over him as an inhabitant’ within the meaning of the provisions then in force. Panchanund Bose v. Darison Morton 149.
27. Taking up now the first ground viz., whether the defendant; was dwelling within the jurisdiction at the commencement of the suit, I am unable to agree in the conclusion arrived at by the learned Judge though with hesitation. If what was said in the Bombay case which the learned Judge felt bound to follow, was really meant to lay down that the term ‘dwells’ in the section imports any permanency of residence, such interpretation is not one warranted by the authorities. In Bailey and Pegg v. Bryant 28 L.J.Q.B. p. 86 it was held that a person who resided in a house in London only about 3 months in a year while the rest of the year he spent at his residence in the country, ‘dwelt’ in London within the meaning of the City of London Small Debts Court Act of 1852. In In re Norris IV T.L.R. p. 452 where the words to be construed were “ordinarily resided” the court decided that a person who had taken up a room in a hotel which he paid for and from which he addressed letters and where he was constantly seen, ordinarily resided there within the meaning of Bankruptcy Act, 1883, though his wife and family resided at Brussels and the person himself was going backwards and forwards to Brussells and other places. The Lord Chancellor remarked that subh a question was one of fact and of degree in each case In In re Hecquard L.R. 24 Q.B.D. 71 which was also a case under the same Act it was held that a domiciled Frenchman ordinarily residing in Paris who, on coming to London in connection with an action he had commenced, took up certain room in a house in London and occupied them exclusively for 3 months with his wife and two servants, in the meantime paying frequent visits to France, had a dwelling in England. In Ex-parte Bruell L.R. 16 Ch. D. at p. 487 James L.J. points out that the words ‘residence’ has no definite technical meaning but should be construed in every case in accordance, with the object and intent of the Act in which it occurs. In Mahomed Shuffi v. Laldin Abdula (1878) I.L.R. 3 B. at p. 229, Sargent, J. was of opinion that the words ‘dwell and reside’ express substantially the same idea and that the meaning to be given to’ such words depends on the intention of the legislature in framing’ the particular provision of law. In Everet v. Frere (1885) I.L.R. 8 M. 205, Brandt, J., took the same view and held that an, officer, proceeding from’ Burma to England on leave and residing a few days in Madras on the way, resided there for the purposes of the section relating to arrest before judgment. In the recent case of Fernandez v. Wray (1900) I.L.R. 25 B. 177 the defendant who held the office of Resident at Kolhapur and who left the place on leave for a year and stayed in Bombay, on his way to England, for four days was held within the meaning of Section 12 of the Letters Patent to have dwelt in Bombay on one of those days when the suit was commenced against him in the High Court. Now but one conclusion seems possible when the ratio decidendi of the above cases is applied to the facts here, which recapitulated are.: – The defendant shuts up in March his house in Bangalore as a place of residence and proceeds to Madras. He then takes up a house for his exclusive occupation and occupies it with his wife and child. He eats there, sleeps there, and is to be constantly seen there. He next enters into a contract with a professional man in order to qualify himself for the legal profession – a contract which involved an uninterrupted stay in Madras for the period of at least 12 months’ study with the person to whom he had become apprenticed and attendance at the law courts during that time, The defendant acts upon the contract spending his time in Madras till the end of August. In these circumstances it is impossible not to hold that during the whole of the six months the defendant dwelt in Madras and in Madras only.
28. Passing now to the other ground of jurisdiction, I content myself with resting my view on the single fact of the defendant’s undertaking, given to this Court when he applied for and obtained probate, to administer the estate, such undertaking being at least a most material part of the cause of action in this suit for administration.
29. Assuming the defendant was at the time of the institution of the suit outside Madras, yet that the application to his case of so much of Section 12 as relates to cause of action or part of the cause of action will not be in conflict with International Law, will be seen from what is said in the next paragraph as to the sufficiency of the accrual, of the cause of action within. Madras, to confer jurisdiction over the defendant apart from the Letters Patent.
30. That independently of the Letters Patent also the decision of the whole question of jurisdiction must be against the defendant is clear from certain passages –of the Judgment in Annamalai Chetty v. Murugesa Chetty (1903) L.R. 30 I.A. 220 decided by the Privy Council after the disposal in favour of defendant of his appeal in the suit of the testator’s daughter alluded to in a previous part hereof. Therein Lord Lindley was dealing with they matter of jurisdiction over a foreigner irrespective of any statutory provisions and when he said “that although the defendant was a foreigner, and although the cause of action arose in a foreign country, and although the defendant did not personally reside within the local limits of the jurisdiction of any court in British India, and was not even temporarily in Arcot when sued there” he necessarily assumed that among others temporary presence and the accrual of the cause of action within the limits of the Court would each by itself be a ground of jurisdiction according to general principles of English jurisprudence. It is scarcely necessary to say that upon the facts as already found by me above, the presence of the defendant at the time of the suit was part of a stay which was much more than temporary and which even if it were quite “temporary made him subject to the jurisdiction of this court. The case is still clearer in regard to the ground of cause of action, for the affirmation advisedly introduced by Lord Lindley in the said judgment that the case of Girdhar Damodar v. Kassigiar Hiragar (1893) I.L.R. 17 B. 662 was rightly decided because the cause of action accrued within Bombay though the defendant was a non-resident foreigner, a native of Cutch, is in so far as this Court is concerned a binding authority in a case like the present. It was with reference to this authority that Sankaran Nair, J. and myself quite recently held in Appeal No. 109 of 1903 that the court at Masulipatam has jurisdiction over a non-resident foreigner, a subject of the Nabob of Banganapalle, in respect of a promissory note made payable in Masulipatam (1905) I.L.R. 29 M. 69. I wish to avail myself of this opportunity to say that in assuming in the last mentioned case that the statement of the law by the Earl of Selborne in the Faridkote case that the accrual of the cause of action within certain territory did not constitute a ground of jurisdiction over a foreigner not resident at the time of the suit in that territory, was not reconcilable with the conclusion of Lord Lindley that I.L.R. 17 B. 662 was rightly decided. I overlooked the distinction that existed between the two cases in that in the Faridkote case the question was with reference to the enforcement of a foreign judgment, while, in the Bombay case the suit was upon the original cause of action itself. Considering that Lord Lindley in his judgment when Master of the Rolls, in Pemberton v. Hughes (1899) 1 Ch. 789 refers to the Faridkote case with approval, the proper view would seem to be that his conclusion in Annamalai Ghetty v. Murugesa Ghetty as to the Bombay case having been rightly decided is not inconsistent with the Faridkote case and that the latter lays down the rule to be followed in cases where the question of the validity of a foreign judgment obtained in circumstances such as those which existed in that case comes up for decision in the courts; of this country. Be this as it may, there can be no doubt that the cause of action in the present case which accrued in Madras is of a description which by its very nature makes the defendant liable to the authority of the court. As pointed out in Wharton on the Conflict of Laws, the tribunal from which an executor takes out letters is that to which he is distinctively amenable. (3rd Edition, p. 616). See also Mussamut Bahanoo Beebee v. Moonshee Ricssian Ally Morton’s Decision p. 166 where it was laid down that “it had always been held that an executor sued in that capacity was subject to the jurisdiction of the court granting the probate.” The present being an action of that character, the defendant’s liability to be sued here, cannot be denied.
31. In conclusion as regards the actual order made by the learned Judge, – no suit in connection with the administration of the estate in question was ever instituted elsewhere. That part of the property concerned is in Mysore, presents no obstacle to all the administration necessary being carried out under the orders of this court Ewing v. Orr Ewing 10 A.C. 453. And the present case is certainly one in which the administration is sought not for the purpose of merely securing the exoneration of the fiduciaries from the risks and responsibilities of an administration extra curiam, : and if special cause were necessary for the court being called upon to undertake a general administration, that has been abundantly shown. The contention of Sir V. Bhashyam Aiyangar that to include in the administration the immoveable property of the testator situated in Mysore would be to pronounce on the title to it, involving as such inclusion would the overruling of the defendant’s objection as to the incapacity of the testator to will away that portion of the property, is not tenable. For, first, where the court has jurisdiction to make a grant of probate it has power to decide whether the will is a valid testamentary disposition. See Dicey on Conflict of Laws, Rule 61 and comments thereon, pages 326 and 327, In the next place, no such question of title can in point of law betaken as presented for our decision inasmuch as the defendant having with full knowledge of all the circumstances bearing on his rights as the testator’s son, accepted the Office of executor, obained probate and, under its authority collected assets and otherwise so acted as to cause the plaintiffs to alter their position the defendant is estopped from impeaching the will, repudiating his fiduciary position or setting up in respect of the property dealt with by the will any rights inconsistent with the dispositions and conditions therein. See Bigelow on Estoppel, 5th Edition, p. 554: Now in compelling the defendant to perform the trusts this Court is of course acting entirely in personam. And Duder v. Amsterdamsch Trustees Kantoor (1902) 2 Ch. 132 p. 143 is direct authority for the view that in such cases this Court has the same jurisdiction with regard to any contract made or equities between persons here respecting lands or assets in a foreign country, as it has where the lands or assets are locally situate. The law on the point is thus succinctly stated by Westlake: – “A proprietor of foreign immoveables, or person interested in such, may be compelled by the English court, if it has jurisdiction over him, to dispose of his property or interest in them so as to give effect to any obligation relating to them which arises from, or as from, his own contract or tort : and that obligation will not be measured by the lex situs of the foreign immoveables to which it relates but in accordance with the rules of Private International Law on obligations arising from, or as from, contract or tort. If indeed where the law of the country where the land is situate should not permit, or enable the defendants to do what the court would otherwise think it right to decree, it would be useless and unjust to direct him to do the act, but when there is no such impediment” (and there is none in the present case) “the courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules and are not influenced by any consideration of what the effect of such contracts might be in the country where the lands are situate, or of the manner in which the courts of such countries might deal with such equities” (4th Edition, pp. 210 and 211). As Lord Herschel in British South Africa Co. v. Companhia de Mocambique (1893) A.C. at p. 624 points out “if the court of a country were to claim, as against a person resident there, jurisdiction to adjudicate upon the title to land in a foreign country and to enforce its adjudication in personam, it is by no means certain that any rule of International Law would be violated.” No good objection, therefore, has been shown as to the terms of the order.
32. I agree, therefore, in holding that the appeal fails and should be dismissed with costs.