Oomer Hajee Ayoob Sait vs Thirunavukkarasu Pandaram and Another

We remand this case for a finding on the genuineness of the letter dated 11th May, 1928. Evidence explanatory of the document may be taken if

necessary. The finding mustbe submitted in one month from date of the receipt of this order by the lower Court. Time for filing objections will be

ten days thereafter.

In pursuance of the above order the District Judge of Tinnevelly submitted the following

Finding. - The High Court has remanded this execution petition for a finding as to the genuineness of a letter, Ex. H, dated 11th May, 1928, with

permission to take evidence explanatory of the document if necessary.

Some facts are necessary to appreciate the evidence adduced. The plaintiff (decree-holder), one Oomer Hajee Ayoob Sait, is a wealthy

Gujarati merchant doing business in Cdchin. He obtained a decree in Cochin Court against the two minor sons of one Sundaralingam Pandaram, a

wealthy merchant who died on 31st January, 1923. Under a will and codicil, Balasubramania Pandaram and Arunachala Pandaram were joint

executors. The former died in 1928, and the latter, who has been examined as R.W. 1, managed the estate of the minors. In the suit in question,

which was filed on 18th March, 1928, R.W. 1 was impleaded as guardian of the minors but was ex parte. The decree was passed on 10th

September, 1928. Ex. H is a letted alleged to have been written by R.W. 1 to the plaintiff during the pendency of the suit, and it is relied on now

for the purpose of proving the submission of defendants to the jurisdiction of the Cochin Court.

The execution petition was dismissed on 22nd January, 1931, by one of my learned predecessors on the ground that, on the admitted facts, the

decree had not been passed by a Court of comp''eLent jurisdiction. Ex. H was filed in this Court on 6th January, 1931, but not exhibited or even

referred to in the order of dismissal. There are conflicting versions and there are also said to be conflicting affidavits by the pleaders of both sides

filed in the High Court as regards Ex. H during the hearing of the execution petition in this Court. Ex. H is a letter in Malayalam, dated 11th May,

1928, addressed to plaintiff. It purports to be signed in Tamil by Arunachalam Pandaram (R.W. 1) as executor of C.V.I.C. estate (defendant''s

estate). The letter refers to plaintiff having attached before judgment in the suit in question an amount due in monthly instalments by one Kallayanji

Sait to the minor defendants'' estate and requests plaintiffs to permit the minors to draw a month''s amount and to send a reply through his (R.W.

1''s) agent, Venkatarama Ayyar (who has been examined as P.W. 1). R.W. 1 denies all knowledge of the letter and also his signature (Ex. H-1) at

the foot of it. The only other witness examined is Nilakantan Ayyar (P.W. 2), a suit clerk employed in plaintiff''s Cochin shop. P.W. 1 was

admittedly an agent of the Cochin shop belonging to the minor''s estate. It had been closed down, according to P.W. 1, in March - April, 1928,

and, after this, he was engaged in winding up affairs and collecting outstandings while R.W. 1 left Cochin and went to Tinnevelly. P.W. 1 swears

that R.W. 1 came to Cochin on 11th May, 1928, and that same day he got Ex. H written by one Gopala Menon in Malayalam, the only language

plaintiff knew apart from Gujarati, and got it signed by R.W. 1. He then took Ex. H in person to the shop of plaintiff and gave it to P.W. 2. Next

day, P.W. 1 went to plaintiff''s shop, and plaintiff himself who was there, told him that he would consider it and send a reply later. There is no''

evidence as to any reply having been senT.R.W. 1 knows no Malayalam, but a significant feature of his evidence is his total denial of the signature

(Ex. H-1). Three admitted signatures of his on an afridavit, a vakalath and another affidavit (Exs. J, J-1 and J-2) have been filed. Even to a casual

observer not versed in the Tamil language the similarity between Ex. H-1 J series is apparent. The signature is a long one with characteristic

flourishes and Mr. Avudiappa Pillai for defendants has to concede that, if Ex. H-1 is a forgery, it is an extremely clever one.

P.W. 1 has been attacked as a witness inimical to the minor''s estate as he admitted that he gave evidence in suits against the minors. But R.W.

1 has also admitted in his examination-in-chief that suits have been filed against him by the first minor after he attained majority in the sub-Court,

Tinnevelly, and other Courts as regards his management of the estate. He also admitted that, in some suits jointly filed against him and the minors,

the latter have been exonerated and decrees passed against him only. Both P.W. 1 and R.W. I agree as to the existence of a debt due at the time

of Ex. H by Kallanji Sait to the minors'' estate. R.W. 1 admits that a sum of Rs. 7,000 was due, which, by agreement Kallanji Sait was liquidating

by payments of Rs. 300 a month. So far as interest in or against the minors'' estate is concerned, R.W. 1 is obviously more likely in this E.P. to

depose for the estate than against it. He is married to a sister of the minors, and, though his evidence suggests that he may have mismanaged his

guardianship and perhaps profited out of it, yet, when it comes to evading execution of a decree against the estate, there is nothing surprising in his

supporting such a course. Furthermore, if he admits the execution of Ex. H and execution proceeds against the estate, he may probably have to

account to the minors for failure to defend the suit in the Cochin Court and for suffering an ex parte decree to be passed in the circumstances.

P.W. 1 on the other hand, is no longer in the estate service and has now no ostensible axe to grind. I see no grounds to warrant an inference that

he may be perjuring after being bought over by the plaintiff.

R.W. 1, has merely stated that, at the time of Ex. H, he was in Trivandrum arranging for his brother''s daughter''s marriage, which was actually

celebrated on 23rd May, 1928. He says he sold a godown at Cochin to a Sait, and that the sale-deed was actually registered by P.W. 1 under a

power-of-attorney on 11th May, 1928, at Cochin. There is only his ipse dixit to support these statements. It was finally sought to shake the

eivdence of P.W. 1, by filing a letter he is said to have written to R.W. 1 from Cochin on 12th May, 1928, the contents of which, it was said,

would disprove his evidence that R.W. 1 was in Cochin on 11th May, 1928. This letter was filed in Court on 14th December, 1934, after the

evidence of P.W. 1 was completed on 24th November, 1934. In E.A. No. 8 of 1935, I passed a considered order refusing permission to

defendants to prove this letter through R.W. 1 mainly on the ground that it could not be used to impeach the testimony of P.W. 1 who had not

been given an opportunity of denying or explaining it.

On the evidence placed before me, I must find that Ex. H is a genuine document. An important consideration on grounds of general probability,

is the unlikelihood of this document having been fabricated with what, according to defendants, must have been the specific object of proving

submission to the jurisdiction of the Cochin Court. It was filed in this Court on 6th January, 1931, and although the order of dismissal considers the

question of submission to jurisdiction with respect to other decrees by the defendants'' submission to jurisdiction so far as the present decree is

considered on the basis of Ex. H does not appear to have been pressed at all. If it was fabricated for this express purpose, it is reasonable to

expect that this document would have been made the sheetanchor of plaintiff''s right to execute this decree in the Tinnevelly Court. The evidence of

P.Ws. 1 and 2, supported by the intrinsic evidence of the similarity of Ex. H-1 and J, J-1 and J-2, proves that Ex. H-1 is R.W. 1''s signature, I

reject the denials of R.W. 1 as regards the document. As he has denied his signature in to to he must be presumed to have knowledge of th&

contents despite his ignorance of the Malayalam language. I cannot see that any adverse inference can be legitimately drawn, in the circumstances,

against plaintiff for his failure to examine himself in the witness-box or the writer of Ex. H, Gopala Menon, as his witness. My finding on the issue

remanded to me is that Ex. H is a genuine document.

Dictated to the shorthand writer, transcribed by him and pronounced by me in open Court, this, the 15th day of January, 1935.

JUDGMENT

The appellant, a merchant residing in Cochin State in September, 1928, obtained an ex parte money decree against two minor defendants (the

respondents). The Cochin Court, namely, the Court of the District Judge of Anjikaimal, a foreign Court clearly had no jurisdiction to pass this

decree because the defendants at the date of the suit were not residents of Cochin State at all but of Tinnevelly. The minor defendants did not at

any time appear in the suit. The appellant, the decree-holder, sought to execute the decree which was trans-fered to the District Court of

Tinnevelly for execution. The minor defendants, the respondents, opposed execution, the main ground of opposition being that the Cochin Court

had no jurisdiction to pass the decree in question. The learned District Judge refused execution upon that ground. The appellant contended that the

respondents had submitted to the jurisdiction of the Cochin Court because in some other cases they had done so. This contention was not

accepted by the learned District Judge who says:

This surely is irrelevant. It is the person who is not resident in a Native State who must determine in each case whether he shall submit to the

jurisdiction of the foreign Court or not. If he does so in one case, it does not follow that he is bound to do so in all future cases. No question of

estoppel arises.

The learned District Judge therefore refused execution. The appellant, the petitioner in execution proceedings produced a letter Ex. H which he

states in an affidavit which is before us the learned District Judge failed to consider. When this matter was before us on a previous occasion, we

were of the opinion that the appellant was entitled to rely upon the letter here but since its genuineness was disputed, a finding on that question by

the District Court was called for. That finding is before us now and it is that the letter is genuine; and having regard to the strong reasons given by

the learned District Judge in support of this finding, we accept it. The letter is dated 11th May, 1928. It is addressed to the appellant, the petitioner

in the District Court and the plaintiff in the Cochin Court, and is signed by M.A. Arunachalam Pandaram the executor of the estate in which the

minor defendants had an interest. On the date of this letter the appellant had attached before judgment in the suit an amount due by one Rutulsi

Kalyanji Sait to the minors. The letter refers to the amount and reads as follows:

You know that the right in respect of the amount due by Rutulsi Kalyanji Sait, carrying on business in the Mattancheri Bazaar has been attached

before judgment in the suit O.S. No. 152 of 1,103 (1927-28) filed by you in the District Court, Anjengo, against the deceased Sundaralinga

Pandaram''s minor children Thirunavukkarasu and others. The said minors require a month''s amount out of the said amount. I therefore, request

you to send letter through my agent Venkatarama Ayyar the bearer of this letter to the effect that you have no objection to the said minors being

paid only a month''s amount. ''The balance amount after deducting this one month''s amount can be collected by you, dated 11th May, 1928.

Sd. M.A. Arunachalam Pandaram.

Executor of C.V.I.C. estate.

The appellant contends that this letter amounts to a submission to the jurisdiction of the Cochin Court; and he also contends that by reason of

some previous suits against other parties in which the respondents were plaintiffs filed in the Cochin Court an inference is to be drawn that in the

present suit the respondents submitted to the jurisdiction of the foreign Court although they did not appear in the suit and the decree was passed

against them ex parte. This argument is based upon a judgment of Fry, J., in Rousillon v. Rousillon (1880) 14 Ch. D. 351 in which he considers a

number of English cases in which were considered the principles upon which foreign judgments are enforced by the Courts of England and after

referring to Schibsby v. Westenholz (1879) 6 Q.B.C. 155 observes:

What are the circumstances which have been held to impose upon the defendant the duty of obeying the decision of a foreign Court? Having

regard to that case, and to Copin v. Adamson (1874) L.R. 9 Ex. 345 they may, I think, be stated thus. The Courts of this country consider the

defendant bound where he is a subject of the foreign country in which the judgment has been obtained; where he was resident in the foreign

country when the action began; where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued.

It is the last named position upon which reliance is placed by Mr. Raghava Rao who also relies upon the decision of this Court in Nagoor Meera

v. Mahadu Meera (1925) 22 L.W. 820 a judgment of Phillips and Ramesam, JJ. In the course of the judgment on page 822 it is stated:

There is also an additional circumstance which would possibly give the Ceylon Court, jurisdiction and that is the fact that the defendants'' firm

actually filed suit in the Ceylon Court and having come in as plaintiffs can hardly be allowed as defendants to deny the jurisdiction which they

themselves invoked and in this connection, I would refer to a judgment in Second Appeal No. 1492 of 1920 not reported.

That was a judgment of Ayling, A.C.J., and Odgers, J., in which reference is made to Rousillon v. Rousillon (1880) 14 Ch. D. 351 already

referred to and it stated:

Now here the first defendant swears that he filed and defended suits in the Courts of Trincomali on behalf of second defendant under his power of

attorney (Ex. I). If then the second defendant has through her agent selected the Trincomali Court as the forum in which to bring suits, it stands to

natural justice that she cannot object to the jurisdiction of the same Court. When she is afterwards sued in it. It has been argued that the words of

Fry. J., quoted above which as far as we know have never been questioned, must be restricted to the same action or cause of action e.g. A brings

a suit in a foreign Court against B a resident in the foreign Country, the Court dismisses A''s suit and has therefore jurisdiction over him for

recovery of costs etc. The words are certainly wider than this and in our opinion the expression ""in which he is afterwards sued"" must be taken as

conclusive against such a contention.

Reference is also made in the judgment of Ramanathan Chettiar v. Kalimuthu Pillai (1912) 24 M.L.J. 619 : ILR 37 Mad. 163. In the case

before Ayling, A.C.J., and Odgers, J., the second defendant had given a power of attorney to her agent to transact business on her behalf in

ceylon and had adopted the Ceylon court as her forum for the trial of suits arising out of those transactions. That, in my opinion, is an important

circumstance which does not exist in the present case and I agree with the contention of Mr. C.S. Venkatachari on behalf of the respondents that

as it would appear that the previous suits filed by the present respondents in the Cochin Court were against residents of Cochin State, the Cochin

Court had jurisdiction to try those suits. This is an all-important distinction because there was in those cases no submission to the jurisdiction; and a

person who has filed suits in a Court having jurisdiction to try them cannot thereby by implication be taken to submit himself to the juris - diction of

the same Court in cases where that Court has no jurisdiction and the decision of the Privy Council in Sirdar Gurdyal Singh v. Rajah of Fardikote

(1894) A.C. 670 is in point here. There it was held that an obligation to accept the forum loci cnlrac-tus could not, unless, expressed, be implied to

found a conditional jurisdiction against the parties in a suit founded on that contract for all future time. In my view, therefore, the earlier suits in

which the present respondents were plaintiffs in the Cochin Court have no bearing upon this question.

With regard to Ex. H, however, the appellant''s case rests upon stronger foundation because it is contended that this was a submission to the

jurisdiction of the Cochin Court because it shows that the respondents had knowledge that the suit had been filed against them and also that an

amount owing to them had in that suit been attached by that Court and did not dispute the attachment but on the contrary merely asked for a

concession and on its refusal did not further contest the matter and that they must therefore be held to have waived any question of jurisdiction. Mr.

Venkatachari, however, contends that as the respondents were not residents of Cochin State, they can only be bound by the decree passed by

that Couit without jurisdiction by being brought under the third case, Clause (c) stated in Dicey''s conflict of laws (5th edition) page 399, namely,

by having expressly or impliedly contracted to submit to the jurisdiction of such Courts"", and argues that Ex. H was merely an offer to the

appellant (the plaintiff) which offer was rejected by him and therefore there cannot have been any implied contract and that it is only in such cases

that the decree would be binding on the defendants, they having remained ex parte throughout. This argument excludes any case of waiver by

conduct. It is clear of course that a defendant against whom a suit has been filed in a Court which has no jurisdiction is not bound to appear and

raise a plea as to the jurisdiction. He can, if he chooses, remain inactive and can thereafter raise that plea. Nevertheless, his conduct both, before

the decree is passed and after, may afford evidence as to the defendant''s intention in remaining ex parte. This aspect of the question has been

discussed in Sheo Tahal Ram v. Binaik Shukul I.L.R.(1931) 53 All. 747. There a decree had been passed by a Court having no jurisdiction to

pass it. The decree was transferred from that Court which was a foreign Court to a Court in British India, namely the Mirzapur Court, and the

judgment-debtor appeared there and deposited Rs. 100 in part-payment and asked for three months'' time to pay up the balance. No objection as

to the want of jurisdiction of the foreign Court to pass the decree was then raised. Later on, when an application was made for attachment of a

fresh property, objection was taken that the foreign Court had no jurisdiction to pass the decree which was a valid objection, and it was held by

Sulaiman, A.C.J., that the mere fact that the defendant allowed the suit to be decreed ex parte would not amount to his submitting to the

jurisdiction of the foreign Court nor would his subsequent conduct in making part payment and obtaining time in the execution Court be any

evidence to show that he had submitted to the jurisdiction of the trial Court before the decree was passed and that the submission to jurisdiction

must be to the foreign Court itself and probably prior to the pronouncement of the judgment in order to make the decree a valid one. Niamat-ullah,

J., however, was of the opinion that the subsequent payment made by the judgment-debtor might be an important circumstance indicative of his

intention to submit to the jurisdiction of the Court at the time when the suit was pending, that it was only a piece of evidence to be taken into

consideration in arriving at a finding on the question of submission and that there is nothing in law which makes it necessary that the submission to

jurisdiction can only be by some overt act. On page 757 he observes:

What amounts to a submission to the jurisdiction of a foreign Court is a question of some nicety in many cases. Where in answer to a summons

issued by a foreign Court the defendant appears and contests the suit, without raising any question as to jurisdiction, there is no doubt that he

submits to the jurisdiction of that Court. Again, where he so appears and repudiates the jurisdiction of a Court without entering into his defence, it

is clear that he does not submit to the jurisdiction of that Court. Between these two extremes is the case where on receipt of the summons he puts

in no appearance and an ex parte decree, otherwise open to no objection, is passed against him. His conduct in such circumstances is accountable

on two hypotheses. He might have refrained from putting in an appearance because he was sanguine that the decree, if passed, would be

ineffective for want of jurisdiction of the Court passing it; or he might have submitted to the jurisdiction of the Court in the belief that the plaintiff''s

claim was a just one and he did not object to the decree being passed by the foreign Court. I find nothing in law which makes it necessary that the

submission to jurisdiction can only be by some overt act in Court, If his attitude as regards the jurisdiction of the Court in which a suit is brought

against him can be established by evidence to have been one of submission to the jurisdiction of the Court the decree will be binding. Subsequent

payment towards part satisfaction of the decree is, in my opinion, an important circumstance from which submission on his part to the jurisdiction

of the Court may be inferred. Much, however, will depend on the circumstances under which the payment of the decretal amount is made. In each

case it is a piece of evidence entitled to more or less weight. I should not be understood as implying that payment of decretal amount in part is itself

a submission and acts retrospectively. If the decree when passed was a nullity for want of jurisdiction in the Court which passed it, no subsequent

act of the defendant can make it otherwise. Subsequent conduct of the defendant may, however, be an indication of his intention to submit to the

jurisdiction of the Court at the time when the suit was pending.

In the present case, the facts are, in my opinion, stronger. The conduct relied upon as indicating the intention of the respondents is conduct

during the pendency of the suit and no question of giving retrospective effect to it arises. That conduct I agree with Niamat-ullah, J. is evidence to

be considered. What does Ex. H, upon a fair construction of it, mean? It seems to me that it is an acknowledgment of the attachment before

judgment by that Court and a request merely for some concession. There is nothing conditional about the request such as Mr. Venkatachari

contends there is. The letter does not say that if the offer is refused, the respondents will contest the matter; and further, when the offer was

rejected, they did not contest the matter. In my view, Ex. H is evidence bearing upon the intention of the respondents to remain ex parte because

the appellant''s claim was a just one and there was no objection to the attachment by that foreign Court. For these reasons, I am satisfied that there

was a submission to the jurisdiction of the foreign Court and that the learned District Judge was wrong in refusing execution. This appeal must,

therefore be allowed with costs here and in the District Court and execution allowed to proceed.

King, J.

I agree.