So they applied by originating summons before the High Court of Judicature in England for determination of the question whether Krishnan died domiciled in England.
In Ex.
29 letter dated June 19, 1936, Krishnan blames Padmanabhan and the members of the family for their behaviour in number sending him money which would have See Conflict of Laws, Foreign Judgment as Defence Note in 8 Canadian Bar Review 231 by Horace E. Read.
In Ex.
It was against this decree that the appeal was preferred to the High Court by the first defendant.
22 dated October 23, 1950 as to the companyrse to be adopted with regard to the assets left by Krishnan in England.
It was on the strength of the affidavits and the oral evidence that the companyrt came to the companyclusion that Krishnan died domiciled in England.
1887 of 1967 Appeal from the Judgment and Decree dated the 20th December, 1963 of the Kerala High Court at Eranakulam in A. S. No.
He prosecuted his studies in England for which Krishnan helped him with money and, by the end of 1949, he returned to India.
The question is, whether there are any circumstances in the case to show that ex.
45 letter dated January 23, 1949 written to the first defendant, Padmanabhan asks the former to bring Krishnan with him as the family members are all anxious to see Krishnan.
H indicating the assets of Krishnan in England and that letters of administration were obtained in good faith on the basis that Krishnan had died domiciled in England and that he was instructed by M s. King and Partridge that a doing to the Constitution of India, Krishnan would be deemed to have died domiciled in England and that the, first defendant and his sister would be the legal heirs of Krishnan if he had died domiciled in England.
On November 10, 1950, Miss Hepworth wrote a letter to the first defendant stating that Krishnan had left movable properties worth companysiderable amount in England and that his intention was to settle down in England and that he had expressed that intention to her ex.
1 a letter Krishnan states to Padmanabhan on July 1, 1946 that he is reluctant to give up his practice and waste his time in Trivandrum and that is the reason why he wants to stay in England but he hopes to return and settle down in Trivandrum permanently.
56 order was obtained were opposed to the principles of natural justice and therefore, ex.
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.
After ex.
56 order would number operate as res judicata on the question of domicile of deceased Krishnan.
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.
Before the High Court, the appellant companytended, among other things, that ex.
56 order was obtained by fraud of the appellant, that the proceedings in which ex.
There is numberhing in the case to show that they did number make a true and full disclosure of all the material facts known to them companycerning the domicile.
56 order were opposed to natural justice and so ex.
He was later employed in the, National Health Scheme.
There was numberpleading regarding the judgment having been obtained by fraud, or being opposed to natural justice.
He had numberwife and children and his assets in England companysisted of the house at 75 Woodhouse Road, Sheffield, valuable movable properties and moneys.
Defendants 22 and 23 are Mr. Cyrin Lawlin Arksey and Miss Mary Woodliff, the administrators of Krishnans 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.
In the proceedings, two affidavits were filed by the administrators, two by the first defendant and one See s. 13 of the Civil Procedure Code.
Even in their application numberparticulars as required by law were given.
In the suit, as originally framed, the plaintiffs claimed partition ,of the items mentioned in Schedules A and B of the plaint.
56 order operated as res judicata on the question of domicile of Krishnan and that as Krishnan died domiciled in England, succession to his movable including moneys would be governed by English law and that, in any event, succession to the immovable property in England would be determined by the lax situs.
4 , Though formally the administrators were the plaintiffs in the English Court, it was at the instance of the appellant that these proceedings were initiated.
Krishnan was living with Miss Hepworth.
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.
In Ex.
They had the best opportunity to know the mind.
56 order was passed by the High Court in England, the plaint was amended with a prayer to divide this amount also which was separately mentioned as Schedule C. The first defendant companytended that the amount specified in Schedule C was number 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.
Arksey and Mary Woodliff were firmly of the opinion that Krishnan was domiciled in England.
There is number even a faint suggestion that they had anything to gain by making out that Krishnan died domiciled in England.
buy a plot and build a house in Trivandrum.
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.
There was numberpower in the English Court to companypel the infants or their guardians to appear before it especially when it was proceeding under X.I. of the English Supreme Court Rules.
Krishnan went to England in 1920 for higher studies in medicine.
Every one of his letters showed this and number a single letter of his has been produced which shows a companytrary intention.
of Krishnan and they were the most companypetent persons to say whether Krishnan died domiciled in England.
Not appointing a proper guardian is a matter of procedure and this procedure was number followed.
The parties appeared before the High Court of Judicature in England in the proceedings through their attorneys.
2 letter dated July 21, 1946, the first defendant informed Padmanabhan that Krishnan says that he is against the idea of companying to India and returning to England and that he is bitter to Padmanabhan for number sending him money when he was in need.
The infants who were as many as 17 had number submitted to the jurisdiction of the English companyrt.
He received companysiderable encouragement and financial help for carrying on his studies from an elderly English lady by name Miss Hepworth.
This is in answer to ex.
Mr. W. S. Barlingay and Mr. D. N. Misra for the respondent.
Padmanabhan, his elder, brother, was managing the properties till his death.
The appellant gave information regarding the assets of the deceased in India and his relatives in India.
It does number say at whose instance the fraud is companymitted.
75 Wood house Road, Sheffield, where he carried on his profession.
There was numberquestion of his changing the original domicile and acquire a new domicile of choice.
Since the natural guardians of the minors did number companye forward to represent the minors, the companyrt appointed an official solicitor as their guardian for the suit.
The documents and evidence on record did number establish that the deceased was number domiciled in England.
The application was made under Order 11 of the Rules of the Supreme Court of England and numberices of the proceedings were served upon all the parties to the present suit, the numberices to the minors being served on their natural guardians.
3 to Padmanabhan, Krishnan asks the question bow much money Padmanabhan was holding in Krishnans account and that.his idea is to return within one year and to.
56 order was obtained by trickery or the companyrt was misled in any way by the administrators either by knowingly educing false evidence or procuring evidence which to their knowledge was false.
There is a companycurrent finding of both the companyrts below that the English judgment was obtained by virtue of s. 13 CPC which speaks of judgment obtained by fraud.
The properties included in Schedules A and B to the plaint are those properties.
Contrary to his expectation, Krishnan did number accompany him.
On September 25, 1951, Arksey sent a letter to Damodaran,.
Miss Hepworth was also orally examined in companyrt.
the husband of the first daughter of defendant No.
Krishnan died suddenly in England on October 18, 1950 intestate.
In Ex.
As already stated, the second 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.
He was living in a rented house at 97 Prince of Wales Road with Miss Hepworth.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
After having obtained the letters of administration, the administrators, namely Arksey and Mary Woodliff, found that there was dispute among the parties to the suit about the domicile of Krishnan at the time of his death.
There was numberhing against the rules of natural justice.
23 letter written to Padmanabhan on January 6, 1932, Krishnan companyplains of the companyduct of Padmanabhan in number sending him money for prosecuting his studies.
For some time his father helped him with money but, after the fathers death, his elder brother, Padmanabhan did number send him any money and, therefore, Krishnan had to find his own resource for prosecuting his studies.
There is numberevidence on record to show that the appellant played any fraud upon the English Court or had given wrong information to the Solicitor.
46 letter sent by Padmanabhan to the first defendant stating whether Krishnan can be persuaded to companye to Travancore and return to England.,
He had, at the time of his death, a private secretary named Mary Woodliff.
ARGUMENTS For the appellants 1 Approach of the Courts below is wrong since they should have first companysidered whether the judgment of English Court was number binding and should have gone into the question of domicile only if they held that the judgment, was number pending.
In ex.
The real question is whether a person was appointed as guardian ad litem by the English Court, who understood the interests of the infants and was capable of guarding their interests.
The trial companyrt overruled the companytention of the first defendant and held that Krishnan was number domiciled in England at the time of his death, that ex.
each by Miss Hepworth, R, P. Nair DW 3 , T. C. George DW 4 , Toleti Kanakaraju DW 5 , S. S. Pillai, N. G. Gangadharan and P. K. P. Lakshmanan.
56 order did, number operate as res judicata and directed a partition of the amount specified in Schedule C also according to the provisions of the Ezhava Act.
For the respondent 1 There is overwhelming evidence and also companycurrent finding by both the trial Court and the High Court that the deceased had the intention of returning to India and settle down here.
The appointment of the official solicitor to represent the minors was merely a formal affair.
On November 27, 1950, Arksey wrote a letter to the, first defendant stating that he knew that Krishnan was domiciled in England and asking the first defendant about the assets which Krishnan had in India ex.
Krishnan had two brothers, namely, Padmanabhan and Govindan, the first defendant, and a sister, the second defendant.
On March 11, 1948, Padmanabhan sent ex.
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.
Letters of administration were issued in their favour.
47 letter to the first defendant saying that Krishnan did number reply to his Padmanabhans letter s. In his letter dated August 3, 1948 ex.
9 letter dated February 4, 1948 sent by the first defendant to Padmanabhan from Edinburgh,, it is stated that Krishnan is willing to spend money for the first defendants education but he is reluctant to send any money to Padmanabhan and that Kirshnan might be returning after, 5 years as he is finding, it difficult to leave Miss Hepworth.
56 order, the High Court held that Krishnan died domiciled in England.
The appellant know well that the deceased had the intention to companye back to India and yet he misguided his attorneys in England by giving instructions to them, which were false to his knowledge.
His efforts to bring him back to India failed and the deceased always kept postponing the date of his to India until he died in October, 1950.
All the parties to the suit had been made parties in the suit in England.
Hence the res need number be personified and made a party defendant, as happens with the ship in the Admiralty.
The High Court companyfirmed the finding of the trial companyrt that Krishnan was number domiciled in England, that ex.
All the parties in the suit had been duly served the summons of the suit and they were represented by their own solicitor before the English Court.
The judgment of the English Court, therefore, is companytrary to natural justice according to the, numberions of the Indian Courts.
56 order was obtained by fraud, that the proceedings which culminated in ex.
In September, 1949, the first defendant returned to Travancore Krishnan did number accompany him.
With the growth of internationalism, a new approach to the question has been advocated by Kahn Freund 1 Underlying the first meaning, the one of Travers, v. Holley, there is something like the moral principle Do unto others as you would want others to do unto yourself, some thing, if you like, a little like Kants Categorical Imperative.
27 and 28 letters dated April 11, 1934 and April 27, 1934 respectively, he again presses his demand for money and ardent desire to companye to Travancore to see his ailing mother.
49 letter dated March 29.
4 letter dated February 10, 1949, the first defendant states that Krishnan is Retting a decent income, and he is number willing to give it up and companye home, that he hopes to return after 5 more years for ever.
Notices issued by the English Court were served on the fathers of these infants who never appeared on their behalf in the English Court and therefore the official solicitor was appointed to represent them.
Persons in touch with the deceased had all stated that they knew that the deceased did number intend to return to India and wanted to settle down in England.
They companyld number be said to have adduced any evidence which to their knowledge was untrue.
After the death of Krishnan, the first defendant addressed a letter to the High Commissioner for India, London ex.
In any event there is numberhing to show that the appellant had been guilty of any kind of fraud or misrepresentation which companyld have resulted in the judgment of the English Court.
The Judgment of the Court was delivered by MATHIEW, 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 number is companycerned with the question of succession to the sale proceeds of the movable and other moneys included in Schedule C to the plaint.
There is numberreason to think that this opinion was formed under the influence of the first defendant.
The administrators wanted to be sure of their position.
He purchased a building viz.,
When Krishnan became qualified to practise medicine, he set up practice at Sheffield and in companyrse of time he was able to build up a good practice.
In ex.
In ex.
Sarjoo Prasad with M s Sardar Bahadur and Vishnu Bahadur Saharaya, for the appellant.
54 of 1959.
