R M N RAMANATHAN CHETTIAR Vs. NARAYANAN CHETTIAR

JUDGEMENT

(1.) This case is a concrete instance of the considerable difficulty experienced by members of a coparcenary owning property both in India and Ceylon and also it may be, Malaya or Burma, in obtaining relief as against the managing member in possession and control of all the property. In this case, the plaintiffs are minor sons suing their own' father by their mother as guardian for partition, which has been found to be in their interests, the, father having neglected his wife and children and having been found by the trial court, to have been spending large sums out of the joint family estate on evil living, leaving his own wife and children destitute without making proper provision for their maintenance. The learned Subordinate Judge granted partition of the joint family property in India, being of course unable to" direct a partition of the substantial properly in Ceylon in B, B 1 and C schedules as being for this purpose outside the jurisdiction of the Indian courts. I am in complete agreement with my learned brother that the Subordinate Judge was correct in law in however directing an account to be taken of the income from all the Ceylon property though this can only be done from the date of severance of status. The first defendant divided from his brother the second defendant, by a registered partition deed. Ex. B. 1, dated 12-11-1947 and there can be no doubt that the subject-matter of the partition suit under appeal is all joint family property.

(2.) Under Section 16(b) C. P. C a suit for the partition of immoveable property shall be instituted in the court within the local limits of whose jurisdiction the property is situated. There is, however, an important proviso that a suit to obtain relief respecting immoveable property held by the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. I would in connection with this type of suit against a manager by a member of the family emphasise the clause in this proviso "where, the relief sought can be entirely obtained through his personal obedience." In the present case the first defendant is a resident of India, was served in India, and submitted to the jurisdiction of the Subordinate Judge of Sivaganga. As it appears to me, it is a case where the relief sought by the plaintiffs can be entirely obtained through his personal obedience in respect of the entire joint family property whether situated in India or abroad.

(3.) Rule 20 in Dicey's Conflict of Laws, 6th Edn. page 141 is to the effect that a court has no jurisdiction to entertain an action for the determination of the title to, or the right to the possession of, any immoveable situate in foreign territory is now well established and followed in Indian case Jaw, though its precise scope is still open, as Dicey himself observed, to some doubt ground either of (a) a contract between the parties to the action of (b) an equity between such parties in cases where the parties themselves, as in the present case, are within the court's jurisdiction. It by no means follows, therefore, that all property having a foreign origin is outside the jurisdiction of a British court for all purposes. This has been laid down in -- 'Kasbinath v. Anant', 24 Bom 407 (A), in which Jenkins C. J. reproduced the dictum ,of Lord Selborne in --'Ewing v. Orr Ewing', (1883) 9 AC 34 at p. 40 (11; quoted by my learned brother in bis judgment. The effect of that decision was that the jurisdiction of the courts in India should be governed and ascertained by the same principles except so far as they may be at variance with legislative enactment.