the Andhra Bank Ltd. v. R. Srinivasan and Others.

Judgment

3S.C.R. "" ~ the High Court rightly answered the question against the assessee Company. In the result, the appeals fail, and are dismissed with costs. Appeals dism iMed. THE ANDHRA BANK LTD. R. SRINIVASAN AND OTHERS. (P. B. GA.TENDRAGADKAR, K. SUBBA RAO and M. HmAYATULLAH, JJ.) Legal Represenfative-~-J.lot resident u,ithin court'8 jurisdic .. tion and not appearing-Judgment, if uinding-Pri,.ate International Law-Applicahility-Degatees under will-If legal representati'.ves of deceased defendant-'}Jstate', if means uiliole estate-Code of Civil Procedure, 1908 (A.ct V of 1908), 8.2 (11). During the pendency of two connected suits for recovery of money filed by the appellant in the Hyderabad Court one of the respondents died and his som, daughters and grand daughters were joined in the suits as his legal representatives as holding different pieces of his property under a deed of settlement and a registered will executed by him.

The suits '"''ere decreed by the said court but as the decretal money could not he realised in full the appellant filed the present suit for the balance in the Madras High Court on the basis of the judgments of the Hyderabad Court At the time of filing, the previous suits \Vere comi:-etent and within the jurisdiction of the Hyderabad Court as the deceased respondent was a resident of Hyderabad but after his death at the relevant time his legal representatives v.•ere not resident5 of Hyderabad. The resjJon~ dents contended infer alia that they did not submit to the jurisdiction of the Hyderabad Court as it had no jurisdiction over them and the foreign judgments of that ·Court \Vere not binding on them. The high Court held that under the rule of private international law all personal actions must be filed in the courts of the country where the defendant resided and as the legal representatives were non-residents of Hyderabad the decrees passed against them were invalid.

Held, that the rule of private international la\V could not be applied to a case where the suit as initially filed was competent and the court before whiCb it was filed was competent to -Karanpura Dtvelopment Co. 1 Ltd. The Commissioner of lncomr•tax, fVrst BengtJ.[ l!ida,yatullah ]. Au:ust 31. JS61 Th, . .fndhra Bank I.rd. R. Sri1,i1·•,c111 3!l2 SGPREllfE COVRT REPORTS [l!lli2J try it. If during the pendenr.y of the suit the defendant died and hi-; non·rec;i<lent legal representatives \\'Cr(' brought on the record to defend the suic on his behalf to the extent of the assets of the decea~ed held hy thctn, the jurisdiction of the court c011tinued unaffect("d a11d tlir competence of thrsuit as or-iginallr filrd remaine•I unirnpaircd. Srmlar G1ml11al Singh '" Tl" Raja of Faridkot•, (1894) I .. R. 211. A. Iii, Tra'"'" v. l!e/l,y ,1951, P. 246, Du11n• '" Saban [1955] P. Jill, )lountbattm v. Jfou11//,atbn, ~1959j P. 43, Dulle• v. Vidln, I 1951 r I Ch.

842, Sc/,;/,_</,y '" ll'eatinholz, 11870) LR. 6 Q. ll. 15'1 and Ema11ue/ '" Symon, 19081 I K.B. JO?, r("ferred to. Kanrhamalai Pother'" Ry. Shahaji Rajah Saheb, (1916) 1.1..R. 5'J Mad. 461 and Erara ,. Sidramappo Pa .. are ( 1897) I.LR. 21 Born. 424, not applicable. Under s. 2 (11) of the Code of Civil Precedure the clause 'a P'rson \\·ho in la\\· reprt>scnts the e~tate of a deceased person, 1nust inrlude legatees under \.\'ills and tr.at "Estate" ce:.unot necessarily n1ean the \Vliole of the estate . .Yate.oa S'IS/riga/ '" Alam,/u Ar.hi, (19'JO) I M. LJ. 4i6, disappr01ed. C1nL APPELi.ATE JvmsmcTI0:-1 : Civil Appeal Ko. f>08of1958. Appeal fr«m th<' jmlgmcnt and decree tlatecl .Tuh·27, l!l51,ofthc l\faclrn~ Hirrh Court in A.S. Xos. l'i2 and l\H of l\l47. A. Rrrngmwll1am Chelty, C. F. Xarasirnhmo, A, J'. Rangam ancl T. 8at11c111arayar1a, for the appellant. A. I'. Viswanatha Sastri and S. Venk<1lf1krishrirrn, for re~pondents Xos. I to 3. R. Ganapathy l!fe" ancl T. K. Smulrim Ramcm, for respondents X 08. ;i to 9.

R. Gariapath11 Iyer, Thiaga.rajan and R. G. r:v11alakrismum. for respondents X os. 11 and I 2. 1961. August 31. The Judgment of the Court was delivered by GAJKSDHAGADKAH, J.-This appeal has been brought to this Court with a certificatn issued Ly the Madras High Court under Art. 133(1}(a) of the Constitution and it arises out of a suit (0.8.No. 83 of 1945) filed by the appellant the Andhra Bank 3S.C.R. Limited against the twelve respondents. This suit was based on two foreign judgments. Exs. P. 1 and P.3, which had been obtained by the appeallant against the said respondents in Hyderabad. Respondent I is the son of Raja Bahadur Krishnamachari (hereafter called Raja Bahadur) who died in March, 1943. Respondent 1 and his father were residents of Hyderabad. Raja Bahadur was practising as an advocate in Hyderabad and subsequently he was appointed the Advocate-General. In September, 1935, respondent I was indebted to the appellant in the sum of Rs. 14,876-3-7 in respect of an overdraft account.

In May, 1938, he became indebted to the appellant in the sum of Rs. 8,217-11-6 in respect of his borrowings on a pledge of sanitary-ware goods. Raja Bahadur had executed a letter of guarantee (Ex. P-18) in January, 1932 whereby he guaranteed the repayment of monies borrowed by respondent 1 up to the limit of Rs. 20,000. As the amounts due from respondent l remained unpaid the appellant had to institute two suits in the Hyderabad High Court for their recovery. These suits were numbered 4 7 and 53 of Fazli 1353. After they were filed in the said High Court they were transferred to the City Civil Court and renumbered as Suits Nos. 62 and 61 of Fazli 1353. Whilst the suits were pending Raja Bahadur who had been impleaded to the suit along with respondent l died.

"Thereupon the appellant joined the r present respondents 2 to 12 in those two suits M legal representatives of Raja Bahadur on the ground that they were in possession of different pieces of his properties under a settlement deed of 1 !l40 and a registered will executed by him on August 28, 1942 (Ex. P. 7). In both the snits the appellant obtained decrees with costs on October, 5, l !H4. The said decrees directed respondent 1 to pay the whole of the amount claimed by the appellant ~", ag<tinst him and respondents 2 to 12 to pay Rs. 20,000 which was the limit of guarantee executed by The Andhra Bank Ltd. R. Srinivasan Gajendragadkar J. 19~/ I lu :lruihra Ban}.; ltd. fl. SrinitasClll Gnj1rulratadkar J. [1962] Raja Baha.dur. All the respondents were directed ¥ to pay interest at 3 per cont, on the amount due against them. \Vhilst the suits were pending the goods pledged in Suit No. 62 were auctioned and the sale proceeds realised which amounted to Rs. 4,232-l · 7 w iro given credit for whilst tho Court passed the decrees in the said suits.

According to the appellant an amount of Rs. 27 ,923.6-5 was still due on the said decrees and so in the present • suit the appellant claimod from respondent I tho whole of tho said amount and from respondents 2 to 12 Rs. 20,000 with interest and costs. Respondent 2 is the Hon of Raja Bahadur and respondenta 6 to 9 are his minor sons. Respondents :i, 4 and 5 aro the sons of respondent 1. Rcspon· dent IO is the daughter of Raja Bahadur while res· , pondents 11 and 12 are his grand daughters through his two daughters. Respondent 2 for himself and as guardian of his minor sons resisted the appollant's claim and contended that the Hyderabad Courts had no jurisdiction over them and therefore the decrees paBBed by the City Civil Court was without jurisdiction. They also alleged that they .;. had not been berved with notice of suit and had not submitted to tho jurisdiction of tho City Civil Court Respondent I <lid not resist the suit but his sons did.

They alleged that they were not the legal representatives of Raja. B'lhadur and had been im· properly added as parties to the Hyderabad suit. They joiucd reapondonta 2 and 6 to 9 in their contention that the Hyderab:id Court was not a Court of competent jurisdiction and they pleaded that the foreign judgments had not been based on the merits of the case. RPspondents lO to 12 filed similar picas. On these pleadings the learned trial judge framed five principal issues. He held that the City Civil Court of Hyderabad h11d jurisdiction to try. "' the suits and that the contesting respondcnta were bound by tho decrees passed in the said suits. He .""' also found that the respondents who had been impleaded in the suits as legal representatives of the deceaserl Raja Bahadur were his legal represen· tatives in law and had been properly joined. The other issues framed by the trial court in respect of the other contentions raised by the respondents were also found against them.

It is, however, un· neceesary to refer to those issues and the findings ~ thereon. In the result a decree was passed in favour of the appellant for the amounts respectively claimed by it against respondent 1 and against the assets of Raja Bahadur in the hands of respondents 2 to 12 with interest at 3 per cent. per annum from the date of the plaint till the date of realisa· tion. The respondents were also directed to pay the costs of the appellant. Against this decree two companion appeals were filed in the High Court at Madras. Civil Appeal No. 172 of 1947 was preferred by respondents 3 to 5, whereas Civil Appeal.No. 194of1947 was preferred by re8pondent 2 and his sons respondents 6 to 9. It was urged by the two sets of respondents in their two appeals that the trial court was in error _,. in holding that the Hyderabad Court was a Court of competent jurisdiction and ·that the decrees passed by it were valid.

It was also urged that the decrees in question were contrary to natural justice and that respondents 2 to 12 were in fact not the legal representatives of Raja Bahadur and so the Hyderabad Court acted illegally in passing the said ;' decrees against them. The High Court has upheld t.he first contention raised by the respondents and has held that the City Civil Court of Hyderabad which passed th9 decrees was not competent to try the suits and so the decrees cannot be enforced by a suit under s. 13 (a) of the Code of Civil Procedure. According to the High Court the appellant had failed to prove that any of the contesting respondents -~had submitted to the jurisdiction of the Hyderabad Court. Since the High Court came to the conclu · sion that the decrees were invalid it did not think it The Anclhra Bank Ltd. R. S1inivasai1 Gajendragadkar ]. Tiu Alidlua Bnn~ l.td.

R . . 'frir.iuuca1 SlJPREME COURT REPORTS fl962) necessarv to consider the two other arguments .T urgecl hy th<' rc•sponclents. Comistentlv -il'ith its fimlingR that the derrecs were invalfcl and had been passed by the Hydcrabacl Court without juriscliction the High Court allowccl both the appeals preferred before it by the two sets of respondents and has dismiRsed tlw appc llant's suit. It is against. this dl'cision that th<' appellant has ., come to this Court with a certificate issued by the High Court. The first question 'vhich foils to ho considered in the present nppeal is whether tlw City Civil Cnmt at Hyclcrabacl was a Court. of competent jurisdiction when it pronounced the judgments in the two suits filed by th<' appellant in that Court. • Vnrler 8. 13 of the Code a foreign judgment. shall• be conclusive as to any matter ther<'hy clircctly adjudicated upon between the same part ic& cxcPpt where it h:i.s nnt been pronq,unced by a Court of competent jurisdiction.

It is commonground that when the suitR were filed in Hydcrabacl Raja Hahadur and responc!tmt I were rPsidents of Hydorabad 11.ncl the Hyderabad Court was therefore~ compet.cnt to try tho suits at the time when they were filccl. Tho actions in question wcw actions in perscmam but they were within the j11riscliction of tho Hyderabad Court at their inception. This position is not disputed. [t is nlso not seriously disputed that re~pomlent.9 2 to 12 who were: added as legal rcprcsent:i.tivcs of the deceased Raja~ Bahaclur clid not r('side in Hvdernbacl at the relevant time :uHl w!'l'e foreignern • for th<' purpose of jurisdiction. The High Court has h<'ld that unrlcr the well established rule nf pri,·a((' international law all personal actions must be filecl in the Courts of the country whcrn the <lefcncla11t resides, arnl since respondents 2 to 12 had not suhmit.ted to the jurisdiction of the Hyderabad Court. The Hydcra,/. had Court hacl no jurisdiction to try the claim against them.

The rule of private international law on which the High Court has relied is no doubt well settled. It has been thus enunciated by Dicey in rule 26 : "When the defendant in an action in personam is at tho time of the service of the writ not in England the Court has no jurisdiction to entertain the action" (1). According to Cheshire's "Private International Law" this rule is based on ii the principle of effectiveness. "Jurisdiction", observes Cheshire, "depends upon physical power, and since the right to exercise· power, or, what is the same thing in the present connection, the power of issuing process, is exercisable only against persons who ~re within the territory of the ., Sovereign whom the Court represents, the rule at common law has always been that jurisdiction is •confined to persons who ara within reach of the process of the Court at the time of S(lrvice of the writ. A Court cannot extend its process and so exert sovereign power beyond its own territorial limits"(').

This limitation on the competence of Courts to try personal actions against non-resident foreigners has been emphatically laid down by the <Privy Council in the case of Sirdar Gurdyal Singh v. 'Phe Rajah of Ji'aridkote('). "In a personal action", observed the Earl of ISelborne, speaking for the Board, "to which none of these causes· of jurisdiction previously discussed apply, a decree pronounced in absentem by a foreign Court to the jurisdiction of which the defendant bas not in any r way submitted himself is by international law an absolute nullity" (P.185). This position is not and cannot be disputed ; but the question which still remains is whether the High Court was right in applying this rule to the appellant's case. As we have already seen, at their inception the two suits brought by the appellant in the Hyderabad Court were competent. They were brought against (I) Dicey•s ''Conflict of Laws'', 7th Ed., p. 182. (2) Cheshire's "Private International Law'', 5th Ed., P. 107. (3)

(189'f) L. R. 21 I. A. 171. The Andhra Bank Ltd. R. Sriniva, Gajendrazadka1 f. Thi .~ruilira Bmd: uJ. R. Srini1·asan [1962] residents over whom tlw Hyderabad Courts had jurisdiction, and so there ean be no manner of doubt that as they were filC'd they were perfectly competent and filed before a Court of competent jurisdiction. If after the death of Raja Ilahadur his legal l'C'prescntativeR who wer~ no11-1·<'sident foreigners were brought on the record in the said suits, docs the rule of private international law in questions invalidaw the sub~equent continuance of the said suits in the Court before which they had been validly instituU,d at the outect ? The High Court has answered this question in favour of the respondents and the appellant contends that the High Court wa8 wrong in giving the :;aid answer. In this connection it has been urged bd"ore u~ hy l\Ir.

Hanganathan Chetty, on h<'half of the appellant, that in considering the effect of tlw rule of priYate international law on which the High Court has relied it may be relevant to remember that the recent judicial decisions disclose a hcalthly tendency to relex the rigour of tlw said rule. Jn fact !\Ir. Chettv has invited our attention to Exception 8 whi~h Dicey has stated as one of the exceptions to the rule. L"nder thio Exception, "whenever any person, out of F:nghncl, is a necessary (H' a proper party to an action properly brought against some other per~on dul.v st>rvcd with a \\Tit in England, the Court may aosume jurisdiction to cntort.ain an action against such first mentioned person as a co-defendant in t-he action"' (Pp. 201,202).

The argument is that this Exception shows that where a personal action is properly brought against one person in an English Court and it is found that a non.resident foreigner is a proper or a necessary party to the action in order to sustain the claim made against the resident in England, it would bo open to join the non-resident foreigner as a proper or necessary party notwithstanding the fact that the said foreigner is I 3S.C.R. 'l. non-resident and not subject to the jurisdiction of the Court. This Exception is pressed into service to show that the rule in question is not rigorously enforced in every case. In support of this argument Mr. Chetty has also invited our attention to the decision of the Probate Court in Travers v. Holley('). In that case ii a bus band and wife shortly after their marriage in the United Kingdom in 1937 went out to Sydney in New South Wales and took with them all their belongings. The husband then thought that the Commonwealth offered him better prospects.

Having settled down in Sydney the husband invested money in a business which, however, collapsed on the outbrea,k of war. For a time , thereafter be worked on a sheep farm in Northern New South Wales leaving his wife at Sydney where a child had been born in 1938. Later he secured a Commission in the Australian forces and was in due course transferred to the British forces. In August, 1943 the wife filed a petition for divorce in the Supreme Court of New South Wales on the allegation that she bad been deserted by her husband since August, 1940. The petition succeeded and. the wife wa.s granted a decree which was made absolute in November 30, 1944. The husband was served with a notice of the petition but he did not defend. In due course both the partie1 remarried.

The husband's remarriage, however, proved unsuccessful and so in 1952 he obtained & 1 decree for divorce on the ground that the Australian decree was invalid because at the time it was granted neither husband nor wife was domiciled in New South Wales and the wife by remarrying had been guilty of adultery. Agai,nst this decree the wife appealed, and her appeal was allowed. In discussing the validity of the decree passed by the Supreme Court of New South Wales the Court _,_, . held that "the Courts of New South Wales by s. 16(a) of the New South Waleil Matrimonial (1) [1953] P. 246. Tht .Andhra Ban~ Ltd. R. Srinivasan Gqjendragatlkar J. 7l1t .. ltulhra Br.Ilk Ltd. R. Sriniia1an (,'aj1ntlragadk!ir .]. SUPRE:\IE COURT REPORTS [1962] Cause's Act, Ko. 14 of I SU!l, ancl the English Courts bys.

13 of the l\fatrimonial Causes Act, ID:l7 daimed the same jurisdi('tion, and it would be ccntrary to principle and inconsistent with C"omity if the Courts of this Country rcfmecl to recognise a jurisdiction which mull!tis 11111ta11dis they claimr-d for themselves; aud that <WC'n if, while in desertion, the husband had rrYerted to his English domicile of origin the X ew South Wal1·s Court would not be deprived of jurisdiction". In other words, on the ground of the rult• of n•eiprocity the validity of the decree passed by the Court ol Xrw South \Vales was not allowed to be effectively c·hallangetl by the husband in that ca~c, on tho ground that tho relevant statutory provi8io11s of the matrimonial law were substantially the same. We ought, ho\1·c,·cr to add that on two subsequent occasions the principle enunciated ill the case Of J'raHI"' (1), it has been said, should be confined to the special facts ancl foat.urc·s of that c;osp, In IJunnr. \'.

Srtban (') it is 8tated that "the 0LsC"rvatit111S in 'l'ra.nrs v. lloUey (') aH to recog11ition in certain circumstances of foreign dccre<'~ founded upon 11 jurisdiction similar to ours were cl ire ct eel to n. case ll'here the cxtraordin;ir,1· jmis<lietion of the foreign Court corresponded almost exactly to the rxtraordinar,\' juriscli<:tion cxcrcirnhle by this Court" ; and in Jfountlmttcn v. J/ounlballeu (') Davies, J. has raised a ·whisper of protest against making any further extension of the principle (p.81). JI.fr. Chctty, howm·er, contends that the principle of reciprocity is gradually finding more aud more recognition in mocler11 decisio11s, ancl on the strength of the said decisions it should be held that the relevant statutory provisions i11 Hyclcrabacl and India being exactly the same t.]w rule of private intcrnatioual law 011 whiC"h the High Court relied should not be rigorously applied to the presc11 t. ca.sc. iii [1953) P. 246. [19l5] P. 178. (3] [1959, P.43.

It In support of his argument Mr. Chetty has also invited our attention to the obiter observations made by Denning, L. J, in Jn Re Dulles' Settlement (No.2) Du1les v. Vidler('). Denning, L. J. observed that the relevant mies' prevailing in the Courts in the Isle of l\fan corresponded with the English rules for service out of !he jurisdiction contained in 0. 11 and added "I do not doubt that our Courts would recognise a judgment properly obt'lined in the Manx Courts for a ·tort committed there, whether the defendant voluntarily submitted to the juris· diction or not ; just as we would expect Uie Manx Courts in a converse case to recognise a judgment obtained in our Courts against a resident in the Isle of Man, on his being properly served out of our jurisdiction for a tort committed here". Mr. Chetty points out that this observation again is based on the rule of reciprocity and it illustrates the modern tendency to relax the rigorous applic&tion of the rule of private international law in question.

On the other hand it may be pertinent to point out that the present editor of Dicey's "Conflict of laws" has commented on the observations of Denning, L. J. by observing that "this suggested · application of the principle of reciprocity is of a more sweeping character than its application to foreign divorces, because in the first place it extends to enforcement and not merely to recognition, and in the second place it would, if logically carried out mean that English Courts would enforce foreign judgments based on any of the very numerous jurisdictional grounds specified in Order 11, rule 1 of the Rules of the Supreme Court''. The editor further observes that "it may be doubted whether English Courts would be prepared to carry the principle of reciprocity as far as this, for the suggestion under discussion was made by a sing!~ Lord Justice i11 an ob·iter dicturn, and moreover it is directly at variance with a weighty decision of the Court of Queen's (1)[195 ] I Ch. 842. 1961 .

The Andhra Bank Lid, R. Sri11ivasan Gaj1ndragadknr J. 19'1 Tiu A.nilrTtJ B•-" [Ji. R, Sri11itc.sa11 [1962) Bench" (8cliibsby v. Westenholz (1). Therefore we do not think that this general argument that the rigour of the rule Rhould be relaxed can bo accepted. Hu\1·cver, e\'en if the' rule has to be applied the question still remains whether it has to be applied at the inception or the commencement of the suit as well as at a later stage when on the death of one of the defendants his legal reprcsenta. tives arc sought to be brought on tho record. In dealing with this question it would be relevant to recall the fi vo cases enunciated by Buckley, L. .T. in Rmanuel Ors. v. Symon('! in which the Courts of England would enforce a foreign judgment. "In actions in pers<mam", observed Buckley, L. J., "there arc five cases in which the Courts of this country will enforce a foreign judgment : {l) where th 0 0 defon<lant is a subject of the foreign country in which the judgment has been obtained ;

(2) where he was reHident in the foreign country when the action began ; ( 3) where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued ; (4) where he has voluntarily appeared ; and ( 5) whore he has contracted to submit himself to the forum in which the judgment was obtained". It would be nllticed that all these fivo cases indicate that tho material time when the test of the rule of privat~ international law has to be applied is the time at which the suit is instituted. In other worda these fi,•e cases do not seem to contemplate that the rule can be invoked in regard to a suit which had been properly instituted merely because on the death of one of the defendants his legal representatives who have been brought on the record are non-resident foreignera. The procedural action taken in such a suit to bring the legal represeatativcs of the deceased defendant on the record does not seem to attract the application of the rule. If that be so (I)

( li70' L. It. 6 Q. R. 155 (Dicey, p.28). (21 [1901] I K. B. 302. j it is at the commencement or the initiation of the suit that the rule has. to be applied, and if that is so there is no doubt that tbe two suits in the City Civil Court at Hyderabad were oompetent when they were brought and tbe City Civil Court at Hyderabad which tried them had jurisdiction to try them. In form the claim m11.de by the appellant against respondents 2 to 12 in the Hyderabad Court was in the nature of a personal claim ; but in substance the appellant would be entitled to execute its decree only against the assets of tbe deceased Raja Bahadur in the hands of respondents 2 to 12. That is the true legal position under s.

52 of the Code of Civil Procedure in India, and to the same effect is the corresponding provision of the Code of Hyderabad, Besides, when ~he legal representatives are brought on the record the procedural law both in India and Hyderabad requires that they would be entitled to defend the action only on such grounds as the deceased Raja Bahadur could have taken. In other words, the defence which the legal representatives can take must in the words of O. 22, r.4, sub-r. (2) be appropriate to their character as legal representatives of the deceased defendant. No. plea which the deceased defendant could not have taken can be taken by the legal representatives. That emphatically brings out the character of the contest between the legal representatives and the appellant.

The appellant in substance is proceeding with its. claim originally made against the deceased Raja Bahi!.dur and it is that claim which respondents 2 to 12 can defend in a manner appropriate to their character as legal representatives. If the suits originally brought by the appellant in Hyderabad were competent how could it be said that they ceased to be competent merely because one of the defendants died ? The Hyderabad Court had jurisdiction to try the suits when they were filed and there is nothing JW Th, Anihra B<Jtk Lt ti. R. Sriniva.s4n G11jentlragadkar J. H61 1'he .indi1rtr H,ml,; l~d. R, Srini'-aJaJJ SUPHE~IE COURT REPORTS [J 962] in the rule of private international law to suggest that tlw said jurisdiction automatically came to an cud as soon as one of the defendants died ]caring as his legal reprcseutn.ti\·cs persons who wcrP non· resident foreigners.

In considering this n.spcct of the matter we may rcfrr to the o;tatemcnt jn Salmuncl's ",J urispru· drnce" that "inheritance is in sum~ sort a legal and fictitious continuation of the personality of the dead man, for the rrprcsentatin· is in some sort idcntific<l by the law with him whom he n·pre· scuts. The rights which the dead man can no longer own or exercise in prnpria pcrsomi, and tho obligations wl1ich he can no longer in propn'a pasona, fulfil, he own8, exercises, and fulfil,; in the person of a li\·ing sub8titutc. To this extent, and in this fashion, it may be said that the legal personality of a man survive~ hi; natural personality, until, his obligations being duly performed, and his property duly disposed of, hiR rcprcsentition among the living is no longl'r called for"(').

These observa· tions support the appellant's contention tl1at esHCn· tially and in su bstanre and for the purpose of jurisdiction the suits brought by the appellant against Raja Ilahadur ditl not alter their eharacter even after his death and continued to be suits substantially against his estate as represented by his legal r<'prcsentativcs. Ifthat be the true legal position there would be no scope for urging that the Court which was competent to try the suits as originally filed C'eased to be competent to try them because tho kgal represent.a.ti ves of the deceased Haja Bahadur were non-resident foreigners. To hold otherwise would lead to this result that the suit.q against Haja Bahadur would abat-0 on his death though the cause of action survives and the clocree passed against his assets in the hando of his legal representatives can be effectively executed. The High Court seems to have thought that l I) Salmond On 'J urisprudcncc', Illh Ed., p. 482. the Hyderabad Court's jurisdiction terminated on the death of Raja Bahadur so far as the appellant's claim against him was concerned "and tlie same cannot avail against his legal representatvies", and it has observed that there is judicial authority in support of this conclusion.

The decision on which the High Court has relied in support of its conclusion is the judgment of the Full Bench of the Madras High Court in Ka.nchamr•lai Pathar v. Ry. Shahaji Rajah Sa.heb & 5 Ors. (1). It is necessary to refer to the relevant facts in that case in order to appreciate the point which was decided by the Full Bench. In execution of a money decree certain immovable property belongjng to the judg· ment-debtor had been attached. A proclamation of sale was then settled and an order passed for sale. At that stage the judgment-debtor died. The decree-holder and his, vakil were aware of the death of the judgm~nt-debtor, but even so no application was made under 8. 50 of the Code of Civil Procedure for leave to execute the decree against the legal representatives of the deceased judgment-debtor, and so no notice was served as required by O. XXI, r. 22, sub-r.(l). The sale was then held and at the sale the property was purchased by a stranger.

A question then arose as to whether the sale was void or voidable and the Full Bench held that it was void. Before the Full Bench it was contended that s. 50 ]1ad reference only to the stage when it became necessary to apply for execution against the legal ·representativPs; it did not apply to a case where the judgment-debtor himself was alive when the attachment was made. 'J:he argument was that once the attachment was made the property attached was custod-ia legis and the liability then was that of the property and not that of the person. That is how, failure to bring the legal representatives on the record under s. 50 or to apply for and obtlin notice under 0. XXI, r. 22, sub-r. (1) (1) (1936) I. L. R. 59 Mad. 461. T ht Andhra Bani. Ltd. R. Srinivasan Gajendragadkllr J. 19>1 T"4 Andltr• B•'fk LU. .. If. S1 i1iit'a.t•11 [1962) W/\.S attempted to be explained. Thi~ contention was negatived.

It is in the context of this contention and while rejecting it that Varadachari, J., observed that on the death of a person proceedings for recovery of a debt due by him or taken only against his estate and not against his legal representative do not seem to be justified either by legal hi~tory or by the language of the Pmccdure Code. Similarly, in the 11<1me context and while rejecting the said argument Venkataramana Rao, .T., observed that as soon as a man dieH he disappears from the record ancl there is no party over whom the Court can cxercioe jurisdiction and it loses jurisdiction in one of. its essentials. Then the learned judge has added that no decree ('all be passed without bringing his reprl'sl'ntative on the recorcl. After he is bro11ght he becomes the defendant.

Similarly after the decree he becomes judgment-debtor. ft would be noticed that these observations on which the High Court has relied must be read in the c.:mtext of th" facts before the Court in that case, and their effect must bo appreciated in tho light of the argument which wao n•jcctcd. 'l'hc Full Bench was really concerned to decide whether in r~garcl to property which had h~cn attached in execution of a dec~ee procel'dings under R. 50 and under 0. XXf, r. 22, ~ub-r. (I) have to be taken or not, and it has held that when a judgmcnt-d•!Ltor <lies no action can be taken against his estate unless his legal representative is brought on the record and orders are then passed against the assets of the deceased in his hands. In our opinion, therefore, tho observations made in that cas0 cannot pressed into service when we :irn dealing with a very different problem. The same comment, with respect, falls to be mi1 le with regard to similar observations made by Ranade, ,J. in Erarn & Anr. Sidranwpp<1 Pa9are(').

In that case a mortgagee H had obtained q) (1897) I.l.R. 21 Born. 424. a decree against the mortgagor N but before the decree could be executed N died leaving behind him as his heirs his daughters. Subsequently the decreeholder applied for execution against the deceased judgment-debtor by his heir and nephew R. R appeared and pleaded that he was not the heir and tba.t the daughters of N were his heirs. Even 80 the daughters were not impleaded to the execution proceedings nor were notices served on them under s. 248 of the Code (Act X of 1877). Ultimately the property was sold and was bought by the decreeholder subject to his mortgage. In due course the sale was confirmed and the sale certificate issued. The daughters of N then sued the mortgagee for redemption and were met with a plea that since the defendant had purchased the property at court sale he was entitled to it free from the claim of the plaintiffs to redeem. This defence was rejected by the High Court.

Candy and Jardine, JJ. based their conclusion on the ground that even if the auction purchaser got an absolute title to the pro· perty the present suit had been brought within twelve years of the sale and cdid challenge it and so the plaintiffs are entitled to redeem. Ranade, J., however, based himself on the ground that the sale proceedings were null and invalid and without jurisdiction because the true legal representatives of N had not been brought on the record. It is in this connection that he rejected the argument of the auction purchaser .that the auction sale affected the estate of the deceased N only and that it was a mere informality that the true heirs' names were not joined in the record in execution proceedings. In other words, according to Ranade, J., execution proceedings could not properly and validly be continued after the death of N unless his true heirs and legal representatives were brought on the record.

It is thus clear that the problem posed before the High Court in that case was very much different from the problem with which we are concerned in the present appeal, and so the ob~ervations The Andhra ncnlt Lid. If_, Srinif.s11n Cajerulragadkar ] , Thr .indhra Btwk I.rd. n S1ini1·asan SUPRE.ITE COUlt'l' REPORTS (1962] made in 1 hat case <'<\llnot IJc of any assistance to the respomlcnt8 in support of tla·ir contention that the Hydcralmd Court ceasr<I to ha,·c jurisdiction over ti!{' suit because on the tfoath of Haja Bahadur his legal r~pn,sentatiwo 1rcrc non-rcsi<l0nt for(·igners. Going IJ<L<:k to the narrow point whi<:h calls for our decision in tho present appeid \\'C are inclinccl to hold that there i,; no scope for tlw appli· eat.ion of tho rnlc of private international law to a ease where the suit as initially fikcl was competent and the C.mrt before which it \l":IS filer! harl juris· diction to t.rv it..

Jn such a case if one of the <lefond:rnts ·,lie~ :rn<I his legal representatives happen to he non.r•.•sidcnt foreigners the procedural step taken to bring them on thl' record iR intender! to enable them to defend the 8uit in their character :i8 Jc.g:d r<'presentativcs am! on behalf of the clecc11s<'<l rlefl'llllant and so the jnrio<liction of the Court continn<'S unaff,,c:tcd 1md the compet<'nce of the snit as originally fil1·d remains unimpaired. In form it is persoml adion again,,t the lq.1al reprc''"·ntatives ln1t. in s11ustance it i~ an action conti1111e(I ag,linst th<'m :is lega,l repres!'ntatin'A in which the ''xtcnt of their liahilitv is ultimately <lccirled hv the extent of t.he a~scts of th;, rbcea.sod a~ hdrl bv them. Therefore we must hold that. th<· High. Court was in "rror in reversing tho finrling of the ~rial court on the quest.ion about the cmHpctcnc<· of the Hyderabad Court to t.rv the two snits fib! before it.

[n this view it is ;mnce<'ssan· to consider whether some of the legal. representatives had submitter! to the jnrisdic:tion of the Hyrlt·rahad C<!urt or not.. That takes 11s to the other argument raised by !Hr. Viswan:itha s,istri Oil behalf of the respon· dent8. He contends that rc,pondcnts 2 to I 2 who are in possession of rliffercnt picecs of prop.,rty belonging to the deceased Raja Baha<lur uurlcr the will executed by him cannot be Raid to be his . S.{J.R. -SUPREME OOUiRT REPORTS legal representatives under s. 2(11) of the Code. Section 2(11) provides, inter alia, that a legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. It is well known that the expression "legal representative" had not been defined in the Code of 1882 and that led to a difference of judicial opinion as to its denotation. In Dinamoni Chaudhurani v. Elahadilt Khan,(') the Calcutta High Court had occasion to consider these conflicting decisions.

It was urged before the High Court that the term "legal representative" used in s. 234 of the said Code had to be construed strictly and could not include anybody except the heir, executor or the administrator of the deceased. The argument was that the term had been taken from the English law and its scope could not he extended. This argument was rejected by Brett and Woodroffe, JJ. Woodroffe, J. examined the several judicial decisions bearing on the point and observed "from this review of the authorities it will appear that judicial decisions have extended the sense of the term "legal representative" beyond that of its ordinary meaning of "administrator, executor, and heir'' and though such ·extension has been attended with doubt and has in some cases been the subject of conflicting decision it appears to me to be too late now to endeavour, however convenient it might be, to secure for the term that which is perhaps its strict and legitimate sense.

I agree, therefore, in holding that the term is not limited to administrators, executors, and heirs and am of opinion that it must now be held to include any person who in law represents the estate of a deceased judgment-debtor". It would be relevant to observe that the view thus expressed by Woodroffe, J. has been embodied in the present definition of "legal representative" bys. 2(11). (I) (1964) 3 C.W:N. 843. !HI Th< A•llirra B..J; LtJ. R. Srinivann G•jenirapikar J. 1'61 n, ·AnJJira Ban); Ll<i. R.SriniuaslJ!l GaJtnrira,adJ,;ar ]. 4-10 SUPREME OOURT REPORTS [1962] Mr.· Sastri concedes that a universal legatee would be a legal representative and ho does not challenge that the person who intermoddles oven with a part of the estate of the deceased is also a legal representative; but his argument is that a legatee who obtains only a part of tho estate of tho deceased wider a will cannot be said to represent his estate and is therefore not a legal representative under s. 2(ll).

We arc not impressed by this argument. Tho whole object of widening the scope of the expression "legal rcprcscntath-e" which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of tho estate of a deceased do not fall within its purview. Logically it is <lifficult to understand how such a contention is consistent with the admitted position that person who interme<ldle with a part of the estate are legal a representatives. Besides, if such construcLion ia accepted it would bo so casv for tho estate of a deceased to escape its legitimate liability to pay the debts of a deceased debtor only if the debtor takes the precaution of making several lcgacks to different persons by his will. Besides, as a matter of construction, if different intermoddlers can repr!'sent the estate different legatees can likewise represent it.

In regard to tho intormeddlers they are said to represent the estate oven though they aro in posses. sion of parcels of the estate of the deceased and so there should be no difficulty in !tolding that the claUBc "a person who in law rcpresouts tho estate of a deceased person" must include different legatees un<lor the will. Thero is no justification for hol<iing that the "Estat-0" in the context must mean the whole of the eRtate. Therefore, WP aro satisfied that the plain construction of s. 2( 11) is against Mr. Sastri's argument, apart from the fact that considerations of logic and commonsense arc equally against it.. In support of his argument Mr. Sastri has referred us to a decision of the l\fadras High Court "'in Natesa Sastrigal v. Alamelu Achi ('). In that case the Madras High Court no donbt seems to have observed that s. 2( 11) does not include legatees of part of the estate.

With respect, we think the said observation does not represent the correct view about the interpretation of s. 2(ll ). We accordingly hold that the foreign judg- -. ments in the two suits pronounced by the City Civil Court at Hyderabad are judgments pronounced by a Court of competent jurisdiction, and so the defence raised by respondents 2 to 12 under s. 13(1) must fail. We have also held that respondents 2 to 12 are the legal representatives of the deceased Raja Bahadur and so it follows that the estate of the deceased Raja Bahadur was sufficiently represented " by them when the said judgments were pronounced. In the result the a ppp,al must be allowed, the decrees passed by the High Court in the two appeals Nos. 172 and 194 of 1947 must be reversed and the decree of the trial court passed in Civil Suit No. 83 of 1945 restored with costs throughout. Appeal allowe,d. {I) [1950] l M. L. J. 476. Thi Atu!hra Bok Ltd. R. Srinivasan Gajendrazaikar J.