Abdur Rahim, Offg. C.J.
1. One Calve Sadasiva Chettiar who was a domiciled French subject residing at Pondieherry died there on the 26th May 1891 leaving his last Will and testament, dated 25th July 1889 and a codicil thereto, dated 20th May 1891. He left considerable property, moveable and immoveable, in Madras and in Pondicherry. The immoveable properties in Madras are said to be of the value of Rs. 1,50,0,00 and the moveables consisting of Government promissory notes, jewels and cash in Madras are stated to be of the value of Rs. 1,70,000. By his Will Calve Sadasiva chettiar purported to dispose of the bulk of his properties in favour of various charities, mostly in Pondicherry and partly in the Presidency of Madras. The charities were to be conducted by a committee of management consisting of five members including defendants Nos. 1, 2 and 3, who were also appointed executors of the Will and the codicil. All the executors obtained Probate from the Court of first instance at Pondicherry and in August 1893, four of them obtained from this Court Letters of Administration limited to this Presidency with exemplification of the Probate issued by the Pondicherry Court and an English translation annexed thereto. Leave was given to the fifth executor C. Krishnaswami Chettiar to apply for a like grant if he so wished. But apparently he did not apply to this Court for Probate or Letters of Administration and had in fact instituted a suit on the 22nd October 1892 in the Court of first instance at Pondicherry alleging various acts of malversation and breaches of trust against 1st, 2nd and 3rd defendants in this suit and asking for their removal from the office of administrators and members of the committee of management. A final decree to that effect was passed in April 1904 and a new committee of management consisting of the plaintiffs in the present suit was appointed in place of the 1st, 2nd, and 3rd defendants. The 4th defendant is the widow of the deceased testator, the 5th defendant who is an infant is alleged to have been adopted by the widow and the 6th defendant is the natural mother and guardian ad litem of the 5th defendant. The plaintiffs seek in this suit for a declaration that they, as members of the committee of management are entitled to possession and management of the estate and effects of the late Calve Sadasiva Chettiar, for a decree directing the removal of defendants, Nos. 1, 2 and 3 from the office of administrators and members of the committee of management, for a declaration that the alleged adoption of the 5th defendant is not true or valid, for an account of the administration of the estate by the 1st, 2nd and 3rd defendants, for a declaration that certain deeds of gift executed by 1st and 2nd defendants in favour of the 4th defendant as guardian of the 5th defendant and another deed in favour of the 6th defendant purported to have been executed by the 4th defendant were fraudulently and collusively obtained and, therefore, null and void and for recovery of possession from the defendants of the immoveable property set out in the schedule.
2. The learned Chief Justice (then Mr. Justice Wallis) who tried the suit passed a decree declaring that the adoption of the 5th defendant was invalid, that the plaintiffs were entitled to possession of the property mentioned in the schedule against all the defendants, directed delivery of possession to the plaintiffs and declared that the deed of assignment in favour of the 4th defendant and the deed of gift in favour of the 6th defendant were not valid. He then ordered that the suit be referred to the Judge in chambers for the taking of an account of the rents and profits of the properties mentioned in the schedule.
3. The first question argued before us is whether the plaintiffs can maintain this suit. Their title as trustees is derived from an appointment made by the Pondicherry Court. The property with respect to which relief is mainly sought is immoveable property situate in the town of Madras of which the plaintiffs as trustees seek to obtain possession from the defendants. They also want a declaration that the 5th defendant who claims to be entitled to the properties by virtue of adoption, was not validly adopted. They seek other reliefs as well consequent upon a determination of their title to these properties. It is admitted at the Bar that so far as the collection of the outstandings and the payment of debts and dues is concerned, that has been completed. All that is left to administer are the trusts in favour of charities.
4. The learned Chief Justice disposes of the whole question of the plaintiffs' title in these words 'A judgment of the Courd' Appol removing the plaintiffs, in my opinion, is binding on the defendants (the word 'removing' should be appointing). It was not seriously contended it was not'. I do not know what exactly is meant by the last sentence. The point was certainly strenuously argued before us. It had been raised in the written statement and formed the subject of an issue and the learned Advocate-General who appeared for the appellant, the 5th defendant in this suit, stated that he argued this question in the Court of first instance. The objection which is one of law goes to the root of the suit and if it is valid, we are bound to give full effect to it. It is not suggested that it was abandoned at the time of trial.
5. No authority has been brought to our notice which covers the exact point for decision. But there can be no doubt whatever that the principles which must guide us in this matter are well established and cannot be said to be open to any doubt. Story in his 'Conflict of Laws' in Section 586 lays down as a general proposition that 'In order, however, to found a proper ground of recognition of any foreign judgment in another country, it is indispensable to establish that the Court pronouncing judgment should have a lawful jurisdiction over the cause, over the thing, and over the parties.' In Section 590, he states 'The position that the sentence of a foreign Court is conclusive with respect to what it professes to decide is uniformly qualified with the limitation that it has, in the given case, jurisdiction of the subject-matter' and in Section 591 'By the general consent of nations, therefore, in cases of immoveables the judgment pronounced of the forum rei sitae is held absolutely conclusive.........On the other hand, a judgment in any foreign country, touching such immoveable, will be held of no obligation.' Dicey enunciates the law in Rule 81 in these words 'The Courts of a foreign country have no jurisdiction (l) to adjudicate upon the title, or the right to the possession, of any immoveable not situate in such country, or (2) (semble) to give redress for any injury in respect of any immoveable not situate in such country.'
6. 'This rule,' he says 'is merely an application of the more general principle that no Court ought to give a judgment the enforcement whereof lies beyond the Court's power, and especially if it would bring the Court into conflict with the admitted authority of a foreign sovereign, or, what is the same thing, the jurisdiction of a foreign Court.' Mr. Westlake in his treatise on 'Private International Law' is equally explicit: 'The principle of the forum silus, in its application to the land itself, is incontrovertible. Since only the authorities that exist on the spot can employ force to give possession or take it way, it would be idle for any foreign jurisdiction to make a direct attempt to determine the possession of land, or even the property on it, which would be unmeaning if disconnected from all immediate or future right to possession'. The mere fact that the defendants are domiciled in foreign territory, and its Court has, therefore, jurisdiction in personam over them makes no difference, though it would be otherwise, to use Mr. Westlake's language 'when something has been done by which the personal jurisdiction is called into action on the ground of obligation which properly belongs to it, and the determination as to the foreign land is necessarily incident to the determination which has to be made about the obligation' (for instance) where such obligation arises out of contract or trust. It need hardly be pointed out that what was sought in the case in the Pondicherry Court and what was decreed was not to compel the defendants Nos. 1, 2 and 3 to carry out the trust; but to remove them from the trusteeship. The propositions which are cited in these well-known authoritative text-books on Private International Law' are entirely in accordance with what has been uniformly laid down by the Courts in England. The matter was very fully discussed by Mr. Justice Wright in Companhia De Mocambique v. British South Africa Company (1892) 2 Q.B. 358,'It seems plain that, in the view of most of the Judges whose language has been cited, there was a fundamental want of jurisdiction in the Common Law Courts of this country to determine directly questions of title to foreign land--a want not dependent merely on the law of venue, nor dependent even on the defect of power to enforce a judgment in another country.' Then after pointing out that Courts of Equity have exercised jurisdiction in personam in cases of contract, fraud and trust, Mr. Justice Wright observes: 'Although armed with much more effectual Power of enforcing their decrees than were possessed by the Courts of Common Law, the Courts of Equity refused, with almost equal uniformity, the direct determination of title to foreign land'. He sums up the law in this way 'The proper conclusion appears to be that, speaking generally, and subject to qualifications depending on personal obligations, it is a general principle of jurisdiction, that title to land is to be directly determined, not merely according to the laws of the country where the land is situate, but by the Courts of that country, and this conclusion is in accordance with the Rule ordinarily adopted by the jurisprudence of other countries.' He cites in support of this conclusion, the authority of Lord Hard wick e in Bishop of Sodor and Man v. Earl of Derby (1751) 2 Ves. Sen. 337, of Lord Northington in Pike v. Hoare (1763) 2 Eden 182, of Shadwell, in Tulloch v. Hartley (1841) 1 Y. & C.C.C. 114 of Lord Romily in Norris v. Chambres (1861) 29 Beav. 246., of Wood,. V. C. in Holmes v. Reg. (1861) 31 L.J. Ch. 58., of Lord Westbury in Cookney v. Anderson (1863) 1 De. G. J. & S. 365., of Malins V. C, in Reiner v. Marquis of Salisbury (l873) 2 Ch. D. 378 : 24 W.R, 843., of Kay, J , in In re Hawthorne, Grahom v. Massey (1883) 23 Ch. D. 743 The judgment of the Divisional Court in Companbia De Mocambiqui v. The British South Africa Company (l) was reversed on another point which does not arise in the present case by Lords Justices Fry and Lopes, Lord Esher M. R. dissenting from the Courts below, the claim for declaration having been abandoned by the appellants. In Sirdar Gurdyal Singh v. Raja of Faridkote (1894) App. Cas. 670, the Privy Council observed that territorial jurisdiction existed always as to the lands within the territory. In Hawthorne, In re Graham v. Massey (1883) 23 Ch. D. 743, Kay J., emphatically states lam not aware of any case where a contested claim depending upon the title to immoveables in a foreign country strictly so called, being no part of the British dominions or possessions, has been allowed to be litigated in this country simply because the plaintiff and defendant happened to be here.' In Boyse v. Colclough (1854) 1 K. & J. 124 it was held that a decree of the Court of Chancery in Ireland of the will after verdict upon an issue devisavit vel non, does not determine the validity or invalidity, so far as it relates to lands in England and cannot be pleaded in bar to a suit in this i. e., the English Court. Vice Chancellor Page Wood observed: The foreign Court in this case did not try, and could not try, the effect of the Will of the testator on lands in England.... They never could exercise any jurisdiction over this instrument as affecting the English estates.' In Pike v. Hoare (1763) 2 Eden 182, already mentioned, a bill by an heir-at-law for an issue to try the validity of a Will made in England was dismissed principally because the lands lay in Pennsylvania. The Lord Chancellor observed: 'A Will of lands lying in any of the Colonies is not triable in Westminster Hall.' In Carteret v. Petty 2 Swan. 324, partition of land situate in Ireland was disallowed on demurrer. Vice Chancellor Hall in Grimwood v. Parties (1877) 46 L.J. Ch. 788. held that the curator of a lunatic appointed by a foreign Court was not entitled to call for a transfer of a fund which represented the value of the estate situate in England and in Waite v. Bingley (1882) 21 Ch. D. 674, the same learned Judge held that real property in England does not vest in the assignee under a foreign insolvency.
7. Much reliance was placed by the learned Pleader for the respondents on Ewing v. Orr Ewing (1883) 9 A.C. 34. and Ewing v. Orr Ewing (1886) 10 A.C. 453. In the first case, it was held that the English Court had jurisdiction to administer the trusts of the Will as to the whole estate both Scotch and English. In the first place the question so far as it can be gathered from the report arose with respect to moveable property; and the main ground on which the jurisdiction of the English Court was rested was the fact that some of the trustees resided in England and the others submitted to the process of the English Court and that the object of the suit was to enforce the personal obligation of the trustees to administer the trust. Lord Chancellor Selborne said: 'The Courts of Equity in England are, and always have been, Courts of conscience, operating in personam and not in rem; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not either locally or ratione domicilii within their jurisdiction'. In the Scotch case, the appeal to the House of Lords was from the judgment of the Scottish Court and it was held that the Court of the deceased's domicile, that is the Scottish Court, had not exclusive jurisdiction to administer the deceased's personality. It is difficult to see how the decisions in Ewing v. Orr Ewing (1883) 9 A.C. 34, in any way help the respondents. They do not in any way purport to qualify a well established Rule of International Law relating to jurisdiction over immoveable property. The plaintiffs in this suit are seeking possession of immoveable properties situate in British India solely by virtue of a judgment of the Pondicherry Court. That Court had no jurisdiction to determine any question of right or title to these properties. Their appointment as trustees by the French Court in no way binds this Court; and the only course open to them is to have their appointments recognised by this Court. That could not be done in this suit by reason of Section 92 of the Code of Civil Procedure which lays down that any suit for the appointment of new trustees or for the administration generally of public trusts must be instituted with the sanction of the Advocate-General. The defendants Nos. 1, 2 and 3 who are the executors named in the Will and had as such obtained Letters of Administration with exemplification of the Probate annexed, from this Court could not be validly removed by the Pondicherry Court, and until the plaintiffs have them removed and get themselves appointed by this Court in a suit properly instituted, they cannot maintain any action with respect to the trust-property involved in this suit. In that view of the law, it is unnecessary to consider the other questions raised in this appeal. The appeal will be allowed and the suit dismissed with costs in both the Courts.
8. My learned brother is of opinion that the decree of the Court of first instance should be confirmed.
9. Under Section 36 of the Letters Patent, the appeal is allowed and the suit dismissed with costs in this and the Court of first instance.
Phillips, J.
10. Plaintiffs were appointed trustees of certain charities instituted under the Will of one C. Sadasiva Chetti, husband of 4th defendant, and sue for various reliefs' in connection with the trust-property. Defendants Nos. 1 to 3 and two others were the executors of the Will and having obtained Probate in Pondicherry, where the testator lived, obtained Letters of Administration in this Court in respect of the property in British India. After they had administered the estate, and it is admitted that the administration was completed, defendants Nos. 1 to 3 became trustees of the charity under the Will, but were subsequently removed from their office by a decree of the Pondicherry Court, which appointed plaintiffs in their stead.
11. The main contention put forward in this appeal by the learned Advocate General, a contention that appears not to have been seriously pressed at the trial, is that the decree of the Pondicherry Court is not binding on Courts in British India and that consequently plaintiffs, not having been recognised as trustees in British Indian Courts have no right to bring a suit in respect of the trust, and that the removal of defendants Nos. 1 to 3 from trusteeship is equally invalid as they have been recognised as trustees by this Court and consequently the decree of the French Court cannot affect their status here. This last argument is based upon a fallacy for the trusteeship of defendants Nos. 1 to 3 has never been recognised by this Court. By the grant to them of Letters of Administration they were recognised as the executors of the deceased's estate, but it was not until the assets of the estate had been got in that they became trustees of the charity constituted under the Will and their position as executors of the Will is quite different from their position as trustees of the charity instituted under the Will. There is, therefore, no question of the order of the French Court which removed defendants Nos. 1 to 3 from trusteeship conflicting with the grant to them by this Court of Letters of Administration, and we have only to see whether the removal of defendants and the appointment of plaintiffs by the French Court is binding on Courts in British India. No doubt all rights over or in relation to immoveables are, generally speaking, governed by the lex situs but here we are not concerned with the law relating to any such rights, but have to consider whether the appointment of plaintiffs by a French Court as trustees in whom the immoveable property vests can be recognised here. 'The principle on which an action can be brought on a foreign judgment is that the rights of the parties have been already investigated and determined by a competent tribunal......... In an action on a foreign judgment not impeached for fraud, the original cause of action is not reinvestigated here, if the judgment was pronounced by a competent tribunal having jurisdiction'. This is the principle enunciated by Lindley, L.J. In re Henderson, Nouvion v. Freeman (1887) 37 Oh. D. 244, This general principle though stated in reference to a judgment in personam applies to every kind of judgment; it extends alike to a judgment in personam [Godard v. Gray (1870) 6 Q.B. 139 to a judgment in mm [Castrique v. Irnrie (1870) 4 H. L. 414, to a judgment or sentence of divorce, or any other judgment having reference to status (Vide Dicey's Conflict of Laws, pages 408 and 409), and in accordance with it the plaintiffs would be entitled to sue in Courts here on the strength of their status as trustees appointed by a foreign judgment, unless there is any reason to the contrary. I may refer also to Bank of Australasia v. Nias (1851) 16 Q.B. 717 and De Cosse Brissac v. Rathbone (1861) 6 H. & N. 301, where it was held that a Court will not question the validity of a foreign judgment except upon a definite plea being raised of error, fraud, etc. In Ewing v. Orr Ewing (1873) 9 A.C. 34, a suit was allowed to be brought in England against the executors and trustees of an estate left by a testator domiciled in Scotland and situated mainly in Scotland, the said executors having obtained Probate in Scotland and confirmation in England. In that case the executors and trustees were identical and had been recognised in English Courts, but in a subsequent case relating to the same estate-Ewing v. Orr Ewing (1885) 10 A.C. 453, Lord Selborne remarks: 'it cannot make any difference as to the forum in such a case, whether the trustees, in whom the residuary estate is vested, are or not the same persons who, as executors, obtained Probate or confirmation. The rights of the plaintiffs, (in both countries) and the remedies against the defendants ought to be precisely the same so far as relates to the trust estate whether the defendants were original, or afterwards assumed, trustees, or were or were not executors as well as trustees.'
12. The facts of the present case are not quite analogous bat in Ewing v. Orr Ewing (1885) 10 A.C. 453 the jurisdiction of an English Court to deal with a trust constituted in Scotland was recognised, and similarly there can be no objection to the converse proposition that a French Court can regulate the administration of a trust situated mainly in French territory and partly in British territory and that such administration will be recognised by British Courts. The Advocate General does not contend that,, if plaintiffs were suing as possessing a certain status conferred by a foreign judgment, British Courts would not recognise that status, nor could he very well do so as the proposition that they could sue has frequently been affirmed {Vide Dicey's Conflict of Laws, Chapter XIX). In In re Piercy, Whitwham v. Pitrcy (1895) 1 Ch. 83, a person domiciled in England left by Will lands in Italy to trustees to sell the same and, having invested the proceeds to hold the investments on certain trusts and it was held that the right of the trustees to sell the land is governed by the Law of Italy (lex situs) and that the validity of the trusts as to the proceeds of the land is governed by the Law of England (lex domicilii). Similarly in this case the administration of the trust is governed by the lex domicilii, i. e., French Law, and consequently the appointment of new trustees, which is part of the administration, is governed by the lex domicilii and the action of the foreign Courts would be recognised by British Courts. No direct authority for the proposition he puts forward has been cited by the learned Advocate-General, nor is there any direct authority to the contrary, but the principles enunciated above seem to be sufficient justification for rejecting the proposition. It is also very significant that the objection was not seriously pressed in the original trial by defendants Nos. 1 to 3, the old trustees, bat is now put forward in appeal by 5th defendant alone, an alleged adopted son of 4th defendant, who, as I shall presently show, has no locus standi as his alleged adoption is not valid.
13. It is further contended that the present suit to remove the defendants Nos. 1 to 3 is not maintainable in this Court without the sanction of the Advocate-General under Section 92 of the Code of Civil Procedure. An issue was framed on the point, but was not seriously pressed at the tral. It seems to me that this is not a suit for removal of trustees, for they have already been removed by the French Court, and as I have already pointed out they were not appointed trustees by the British Indian Courts. They were granted Letters of Administration and became trustees under the terms of the Will and not by appointment of Court. They were validly removed from office by the French Court and plaintiffs were appointed in their place and consequently this cannot be looked upon as a suit for removal of trustees. In fact the prayer to this effect in the plaint might well be ignored, as it does not affect the rest of the case. It is a suit based upon a foreign judgment which has recognised plaintiffs' title to administer the trust and to recover trust-properties.
14. Had this Court recognised defendants Nos. 1 to 3 as traste83, and, as I have pointed out, it has not done so, the objection might hold good on the ground that the order of the French Court removing them would not affect the order of this Court appointing them and a decree for their removal would be necessary. Even so it is difficult to see that the judgment of the French Court would come under any of the exceptions (a) to (f) of Section 13 of the Code of Civil Procedure and if it does not come within any of those exceptions, it is conclusive as between the parties.
15. The learned Advocate-General has also sought to impeach the finding of the learned Judge as to the validity of the adoption. The adoption has been found to be invalid on two grounds (l) that adoption is prohibited by the Will of the testator and that the consent of the nearest sapinda was not sought or obtained. A perusal of the Will is sufficient to show that the testator did not want to adopt a son and was unwilling that one should be adopted after his death. He made provision for the disposal of all his property, mostly for charitable purposes, and also made provision for the event of a son being born. The words 'if by divine favour I happen to have a child of the male sex' show clearly that anatural son and not an adopted son was contemplated, for he could not have an adopted child of the female sex. The subsequent references to a son must also mean natural son,' There is also a provision in the Will for a boy being brought into the family in certain events to look after the family house, but not as an adopted son. Even if a natural son were born the testator did not want him to succeed to the whole estate, but gave a direction that the son should carry out the terms of the Will, and made a special provision for the son's maintenance. All this is quite inconsistent with a wish to be represented by an adopted son. The contention that the prohibition to adopt must be express and not implied appears to be mainly based on an isolated sentence in the judgment of the Privy -Council in Sri Balusu Gurulingaswami v. Sri Balusu Ramnlakshmamma 21 A.S 460 which is itself not free from ambiguity, and is certainly no authority for the contention. It may perhaps be contended that in Bombay the prohibition must be express. [Vide Patel Vandravcm Jekison v. Patel Manilal Gkunilal 15 B.S 565, and Lakshmibai v. Sarasvatibai 1 Bom. L.R. 420, but the widow's powers in regard to adoption are greater in that Presidency than in Madras, whereas Collector of Madura v. Moottoo Ramalinga Saihvpathy 12 M.I.A. 397, is authority for holding that an implied prohibition is sufficient, for in that case it was held that the prohibition was to be deduced from the circumstances. As regards the second ground it was not asserted in appeal that the consent of the nearest sapinda was obtained, but it was contended that the Hindu Law, as administered in Pondicherry, is the same as in Bombay, where consent of the sapindas to adoption is not necessary. This point was not raised at the trial and consequently there is no evidence to support it. No doubt it has been held in this Court that a widow's estate in Pondicherry is absolute and not a mere life interest [ Vide Mailathi Aunt v. Subbaraya Mudaliar 11 M.L.J. 309, and Original Suit Appeal No. 11 of 1902) and from this fact one Monsieur Sorg in a treatise on Hindu Law deduces an opinion that a widow can adopt without consent of the sapindas, but gives no authority for his opinion. On the contrary the decree of 29th December 1855 in French India expressly contemplates the consent of the relations being given (Vide Article 2). The materials for a right decision on this point are not before the Court, but on the materials available it would appear that there is no authority for the contention put forward. A further point is taken by respondents that there is no evidence of the factum of adoption, and this is so, for we have only proof of the adoption deed, said to have been executed at the time of adoption, and defendants Nos. 2 and 6, who were in Court, have not attempted to prove the factum of adoption although they are said to have been present when it took place. The learned Judge's finding that the adoption is invalid must be confirmed.
16. In my opinion, therefore, the appeal should be dismissed with costs.