SANKARAN GOVINDAN versus LAKSHMI BHARATHI & OTHERS

Citation: [1975] 1 S.C.R. 57 · Decided: 15-04-1974 · Supreme Court of India · Bench: KUTTYIL KURIEN MATHEW · Disposal: Appeal(s) allowed

Judgment (excerpt)

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A 
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SANKARAN GOVINDAN 
r. 
LAKSHMI BHARATHI & OTHERS 
April 15, 1974 
[K. K. MATHEW AND A. ALAGJRISWAMI, JJ.] 
Private International Law . 
57 
Domicile-Decision of a foreign Court when would operate us res judicata. 
D(lrr.icile-A mixed question of law nnd fact-T t>sts for de/f:n1!i11ing do111i-
Cile-Distinction between mistake and trickery-Fraud-What const1tute1. 
Minors---Notice of proceedings served on mitwrs through guardians 
not 
appointed ad litem-ff opposed to principles of natural justice. 
C 
"Contrary to natural justice"-What fr means in relation to 
foreign 
Judg-
1nents.-
Res Judicata---Determination of domicile if would operate as res judiCata 
if minors did not submh to the jurisdiction of the Coµrt. 
Res Judicata-A Judgment on merits involves res judicata of credibility of 
witnems. 
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JudgmenJ in rem-Effect of. 
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F 
G 
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. K went to England in 1920 for higher studies in medicine and thereafter he 
practised there. He died ill 1950 leaving b;!hind house, movable properties and 
moneys. 
A suit for partition was instituted in India in respect of the assets of 
K in India with brother and sister as defendants 1 and 2. After the iDStitution 
of the suit proceedings were started in England for obtaining Letters of Admi· 
nistration of the estate of K as there was likelihood of dispute as 
respects the 
domicile of K 
The Administrators took out originating sununons for deciding 
the question whether K was domiciled in England at the time of his death. By 
ex. 56 order the High Court of Judicature in England held that K had domiciled 
in England. The movable properties in England were sold and the proceeds to· 
gether with the moneys were handed over to defendants 1 and 2. After e~ 56 
order was passed by the High Court in England the plaint was amended with the 
prayer to divide this amount also which was separately mentioned in Schedulci C. 
The first defendant contended that Schi;!dul:: C amount was not liable to be divi· 
ded among the partii:s to the suit, that as K died domiciled in Ei:lgland succession 
to the movables was governed by English Law and that defendants 1 and 2 alone 
were entitled to the same as next of kin of the deceased. 
The trial court rejected 
this contenuon and directed partition of the amount according to Travanrore 
Ezhva Act. The High Court confirmed the finding of the trial court that K was 
not domiciled in England, that ex. 56 order was obtained by fraud of defendant 
no. 1; that the proceeding: in which ex. 56 was obtained was opposed to the 
principles of natural justice and. therefore, ex. 56 would not operate as res 
fudlcata on the question of domicile of K.. 
On appeal to this Court by defendant no. I the questions arose ( 1 ) Whether 
ex. 56 order operated as res Judicata on the domicile of K and if it did whether 
there was sufficient evidence to show that K died domiciled in England; 
(2) 
whether the proceedings in which ex. 56 order was obtained were opposed to 
natural iu<;tice in as much as the notices of the proceedings were served on the 
minors through their natural guardians, who were not appointed guardians ad 
litPm and (3) Whether ex. 56 order would operate as res fudicata since the minors 
did not submit to the jurisdiction of the court. 
Al'owing the appeal, 
. 
:HtLD ; Succession tQ the amount specified in Schedule C must be ~overned 
by the English I.aw and the amount must be distributed between the litst aad 
second defendants in e<1ual shares. 
58 
SUPREME COURT REPqRTs 
[1975] l s.c.R. 
\l)(a) It is a well established principle of private international law that if a 
A 
forei.gn JUdgment was obtained by traud or if the proceedings in which it was 
obtained were opposed to natural Justke, if will not operate ~ res judlca1a. 
Section 13 CPC referred to. 
. 
(b) The High Court was not justified in imputing fraud to the first defendant 
IA procunng ex. 56 order . 
. It is imp'?Ssiblc to say that the High Court of Judicature in England was 
_B. 
tncked or misled to grant the-declaration that the deceased was domiciled in 
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England on the b""is of the aJlidavits filed by the first defendant 
(c) pomicile is a mixed question of law and fact and there is perhaps no 
chapter in the law that has from such extensive discussion received less eatisfac-
tory settlement. This is, no doubt, attributable to the nature of the subject in-
cluding as it doe&, inquiry into animus of persons who have Cither died without 
!eaving any clear

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