PANCHAPIKESA IYER (DIED) Vs. KNHUSSAIN MUHAMMAD ROWTHER

JUDGEMENT

(1.) One Kawana Nayana Noor Mohamed died in Penang on the 16 October, 1918. In February, 1919, probate of a will, executed by Noor Mohamed two days before his death, was granted by the Supreme Court of the Straits Settlements at Penang to the Defendants, who were named in the will as executors. That probate was properly and explicitly confined to "the movable and immovable property of the deceased in anywise belonging and locally situate within the limits of the said Court". The will provided for certain legacies and then went on "All the rest and residue of my property which I may die possessed of I direct shall be divided amongst all those persons entitled thereto in accordance with the Mohammadan Law and in the shares according to such law. It is my desire that my estate shall follow the Mohammadan Law and be dealt with accordingly". It appears that the bulk of Noor Mohamed's property was in Penang, but that a part of it consisted of immovable property in the Tanjore District. In October, 1919, Noor Mohamed's widow started proceedings in the Supreme Court at Penang for the administration of her husband's estate, claiming an account against the Defendants. The Registrar of the Supreme Court made an inquiry into the assets and liabilities of the estate, and after taking into account the immovable property in the Tanjore District as well as the property in Penang he arrived at the conclusion that the balance of assets was a certain amount and that of that amount the widow was entitled, as she claimed, to a third share. The learned Judge of the Supreme Court, who dealt with the matter, confirmed the Registrar's report on the 12th May, 1921, and made a decree that the Defendants should pay to the widow a certain number of dollars. That decree, the widow after obtaining part satisfaction, assigned to the Plaintiff in the present suit; and the Plaintiff has brought his suit in the Court of the Subordinate Judge of Tanjore as one on a foreign judgment against the Defendants for the balance due from them. The learned Subordinate Judge, who heard the suit, has dismissed it, and against his dismissal the Plaintiff appeals.

(2.) A number of objections to the suit were taken by the Defendants before the learned Subordinate Judge in order to show that the judgment of the Supreme Court was not one on which a suit could be brought under Section 13 of the Code of Civil Procedure. The learned Subordinate Judge found that four of those objections were valid. He found that the judgment in the Supreme Court had been obtained by Noor Mohamed's widow by fraud. He was of opinion that her claim was founded on a breach of a law in force in British India. He was of opinion that the judgment was founded on an incorrect view of international law, and, lastly, that it was founded on a refusal to recognise the law of British India.

(3.) On the first two of those points I am not able to agree with the learned Subordinate Judge. I see no reason for saying that the widow obtained her judgment in the Supreme Court by fraud. The fraud alleged is not properly specified by the Defendants in their pleadings in the present suit. But, so far as I can understand their allegation in that connection, it amounts to nothing more than that the widow claimed more than what she was entitled to. Many plaintiffs do that; but we cannot always stigmatise their conduct as fraudulent for that reason alone. It has often been said that it would be unwise to attempt a comprehensive definition of fraud, which appears in so many guises; but it can safely be said that all fraud contains at least an element of secrecy or of deception. So far as I can see, in making her exaggerated claim Noor Mohamed's widow was not guilty either of secrecy or of deception. Nor can I agree with the learned Subordinate Judge's view that the widow's claim was founded upon a breach of a law in force in British India. She made, as the learned Subordinate Judge has found in another part of his judgment, a claim which could not be entirely supported by the law of British India; but that is a different thing from founding a claim on a breach of the law in British India, for instance a claim in respect of a contract which is prohibited in British India.