[1954] EACA 62

# ORIGINAL CIVIL

## Before CRAM. Ag. J.

# IN THE MATTER OF THE JOINT IMMOVABLE PROPERTIES OF PARTAP SINGH AND HAKIM SINGH SONS OF NAND SINGH BOTH DECEASED

#### **BETWEEN**

## BHAGWAN KAUR D/O ISHER SINGH (as Executrix of the estate of Hakim Singh, Deceased), *Plaintiff*

#### AND

## KESAR SINGH s/o PARTAP SINGH (as Executor of the estate of Partap Singh, Deceased), Defendant

## Civil Suit No. 422 of 1954 (O. S.)

Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 5, rule 21—Application to serve summons on an Indian in India—Order 5, rule 26—Whether India a foreign country—Whether service by post com-<br>petent—Constitutional Law—Status of India—Indian Independence Act, 1947 -Commonwealth Declaration, 1949-India (Consequential Provisions) Act, 1949—Statute of Westminster, 1931—Status of Pakistan, Burma and Eire compared.

The plaintiff took out a summons in Chambers, under the provisions of Order 5, rule 21, for leave to serve an Indian residing in the East Punjab, India, and prayed that service be ordered by air mail post and argued that India, although a republic, was not a foreign country and service should not be ordered by notice in terms of Order 5, rule 26.

Held (20-7-54).—(1) By the Indian Independence Act, 1947, part of former British India became a self-governing dominion as envisaged by the Statute of Westminister, 1931.

(2) On 26th January, 1950, India became a *de jure* sovereign independent republic<br>but, by the Commonwealth Declaration, 1949, affirmed that she continued in full member-<br>ship of the British Commonwealth of Nations and acc of her free association and as Head of the Commonwealth.

(3) The India (Consequential Provisions) Act, 1949, extended to the law of procedure in this Colony and continued the operation of that law as if India had not become a republic. In consequence Order 5, rule 25, operated in relation to India as a republic as it did formerly when India was a self-governing dominion.

(4) The Civil Procedure (Revised) Rules, 1948, are an enactment having the force of a colonial statute.

(5) The acceptance of the Queen as a symbol of the free association of the Republic of India with the Commonwealth and the acceptance of the Queen as Head of the<br>Commonwealth amounts to an acceptance that the Queen's Writ may be served in India without infringement of the sovereignty of that republic.

(6) The summons, and not merely notice of the summons, could competently be served on an Indian, resident in India, by post.

Cases cited: Hewitson v. Fabre. (1888) 21 Q. B. D. 6; Lazard Bros. v. Midland Bank, (1933) A. C. 289; Great Australian Gold Mining Company v. Martin, (1876) 5 Ch. D. 1; Fowler v. Barstow, 20 Ch. D. 240; Western National Bank, etc. v. Perez, (1891) 1 Q. B.<br>304 (C. A.); Wakely v. Triumph Cycle Co. Ltd., (1924) 1 K. B. 214; Hume Pipe and<br>Concrete Construction Company Ltd. v. Moracrete Ltd., (19

**Bowyer** for applicant.

RULING.—This is an application, by summons in Chambers, for leave to serve a writ out of the jurisdiction of this Court under the provisions of Order 5, rule 21. The writ concerned is an originating summons for an order for specific performance or a declaration of ownership of immovable property situated within the Colony. The summons stands at the instance of a widow, the executrix of the will of her deceased husband; and the defendant is the executor of the will of his deceased father. The husband and the father were brothers and held the immovable property in their joint names as co-partners. On the death of his father, the defendant, who became the executor in consideration, it is alleged, of a sum of money paid to him by the surviving partner, agreed to transfer the share of the immovable properties to the survivor. The defendant, it is alleged, then left for India without completing the requisite deeds and, after the death of the surviving partner, his executrix took out this summons. It is said that the defendant has no property in the Colony, no address for service within the Colony, and cannot be served in Kenya.

In my view, the plaintiff is entitled to an order for leave to serve out of the Colony under one or more of the sub-rules prescribed in rule 21.

The summons, however, goes on to pray for a further order that the<br>defendant may be served at "Village and Post Office Daudhar, Tehsil Moga, District Ferozepore, East Punjab, India, within the British Commonwealth, by acknowledged registered post". In the affidavit supporting the summons it is deposed that the defendant is not a British subject. In Chambers, the learned advocate for the applicant, based his submission on Order 5, rule 26, and the present constitutional status of India and maintained that, as India was not a foreign country. The Judge should not order service by notice, as would be mandatory by rule 26 if, in law, India had now to be regarded as a foreign country.

The issue raises an interesting and important question of procedure and of constitutional law upon which I have not been able to find any direct authority. Our Order 5, rule 26, runs: -

"Where the defendant is neither a British subject nor a British protected person and is not in British Dominions or in any British Protectorate or mandated territory, notice of the summons and not the summons itself is to be served upon him".

This rule is, to all intents and purposes, identical in intention with Rules of the Supreme Court, Order 11, rule 6. In *Hewitson v. Fabre* 21 Q. B. D. 6, decided under the latter rule, it was ruled that service of a writ instead of notice of a writ as required by the rule, on a foreigner, not in British dominions, is a nullity and not an irregularity capable of being cured under Order 70, rule 1. On the other hand in Hall v. Evans, unreported (Bray, J., in Chambers 27th February, 1923), service of notice of a writ on a British subject out of the jurisdiction was held to be irregular and set aside. I have cited these cases to show the importance of obtaining the correct order, for an unlawful mode of service is not a mere irregularity but a nullity. I refer also to Rules of the Supreme Court, Order 11, rule 8, which is like to our rule 27 of Order 5 except that the operative word has been amended to "may" from "shall". The effect of the English rule before amendment was considered in Lazard Bros. v. Midland Bank, (1933) A. C. 289, where it was held that before the amendment the Court had no option, where it gave leave to serve a notice of summons in a foreign country, but to make use of the provisions of the rule. As the Kenya rule has no such amendment, the principle laid down by the Court of Appeal ought to be applied here.

$\overline{1}$

A British subject in a foreign country may be served with a writ, Great Australian Company v. Martin, 5 Ch. D. 1, but this aspect need not be pursued, for the affidavit that the defendant is none such precludes any such procedure. A foreigner, however, may be served with a writ anywhere in the British Dominions: Fowler v. Barstow, 20 Ch. D. 240; Western National Bank, etc. v. Perez, (1891) 1 Q. B. 304 (C. A.). The defendant being a foreigner, according to the affidavit, the success of the submission will turn upon the interpretation of Order 5, rule $25:$ —

"Where leave to serve a summons out of the Colony has been granted under rule 21 and the defendant is a British subject or a British protected person or resides in the United Kingdom or in any British Dominion, Colony, Dependency or Protectorate or mandated territory out of the Colony, the summons shall be served in such manner as the court may order".

#### and Order 6, rule 26.

That is if India has or retains the status of a British Dominion or, even if it is constitutionally no longer a dominion, but the law is saved, then the Court has a discretion to order the mode of service and in this instance would consider service by post suitable and convenient.

It is unnecessary to consider the status of the complex of territories which formed British India prior to 1947 because such status was to all intents and purposes abrogated by the enactment of the Indian Independence Act, 1947, which at section 1, brought into being two new dominions, as from 15th August, 1947, to be known, respectively, as India and Pakistan. After that Act came into force, India became a self-governing dominion, as envisaged by the Statute of Westminster, 1931. That is, the subjects of those dominions acknowledged the King as their sovereign.

The constitutional status of India was, however, altered. The Government of India decided to adopt a republican form of constitution but desired, nevertheless, to remain a member of the Commonwealth. In April, 1949, the Prime. Ministers of the United Kingdom, Australia, New Zealand, South Africa, India, Pakistan and Ceylon and the Canadian Secretary of State for External Affairs, met in London to exchange views on the important constitutional issues arising from this decision and desire and to consider how these could be reconciled with the maintenance of the peculiar bonds which unite the Commonwealth. The conclusions reached were placed on record in the Commonwealth Declaration, 1949, which is in the following terms: $-$

"The Governments of the United Kingdom, Canada, Australia, New Zealand, South Africa, India, Pakistan and Ceylon, whose countries are united as Members of the British Commonwealth of Nations and owe a common allegiance to the Crown which is also a symbol of their free association, have considered the impending constitutional changes in India.

The Government of India have informed the other Governments of the Commonwealth of the intention of the Indian people that under the new constitution, which is about to be adopted, India shall become a sovereign independent republic. The Government of India have, however, affirmed and declared India's desire to continue her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol of the free association of its independent member nations and as such the Head of the Commonwealth.

The Governments of the other countries of the Commonwealth, the basis of whose membership in the Commonwealth is not thereby changed accept and recognize India's continuing membership in accordance with the terms of this declaration".

This led to the enactment of the India (Consequential Provisions) Act, 1949, which was to make provision as to the operation of law in relation to India and persons and things in any way belonging to or connected with India in view of India's becoming a republic while remaining a member of the Commonwealth. India, de jure became a republic on 26th January, 1950, but remained a member of the Commonwealth.

The Act at section enacted: $-$

"(1) On or after the date of India's becoming a republic, all existing law, that is to say all law which, whether being a rule of law or a provision of an Act of Parliament or of any enactment or instrument whatsoever is in force on that date or has been passed or made before that date and comes into force thereafter, shall, until provision to the contrary has been made by the authority having power to alter that law and subject to the provisions of sub-section (3) of this section have the same operation in relation to India and to persons and things in any way belonging to or connected with India as it would have had if India had not become a republic.

(2) This Act extends to the law of, or any part of the United Kingdom, a colony, a protectorate or a United Kingdom trust territory, and also, but so far only as concerns law which cannot be amended, by a law of the legislature thereof, to law of Southern Rhodesia or any part thereof.

The references in this sub-section to a colony, to a protectorate and to a United Kingdom trust territory shall be construed as if they were references contained in the British Nationality Act, 1948.

(3) His Majesty may, by Order in Council, make provision for such modification of any existing law to which this Act extends as may appear to him to be necessary or expedient in view of India's becoming a republic while remaining a member of the Commonwealth and sub-section (1) of this section shall have effect in relation to any other such law as modified by such an Order save in so far as the contrary intention appears in the Order.

An Order in Council under this section—

$(a)$ may be made either before or after India becomes a republic and may be revoked or varied by a subsequent Order in Council; and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament".

That is, as I read the Act, it is an Act which extends to the law of procedure in this Colony and its intention was, although India was to have the status of a republic from and after 26th January, 1950, that law was to be saved and to continue as before and to operate until altered as if India had not become a republic. I have been unable to find any provision to the contrary made by any authority having power. On the authority of that statute alone, I should be inclined to rule that Order 5, rule 25, operated in relation to India as a republic as it did formerly when it was a self-governing dominion. The international public law status of India may be compared with that of Burma and Eire. The Burma Independence Act, 1947, was an act which provided for the independence of Burma as a country not within Her Majesty's Dominions and not entitled to Her Majesty's Protection. After 10th December, 1947, Burma, towards the Commonwealth, had the status of a foreign country and the great majority of its inhabitants became foreigners. Southern Ireland formerly part of the United Kingdom, by the Irish Free State Agreement Act, 1922, and the Irish Free State Constitution Act, 1922, Second Schedule, has the "same constitutional status in the Community of Nations known as the British Empire as the Dominion of Canada. $\cdot$ . $\cdot$

The Irish Free State was declared a dominion for the purposes of the Statute of Westminster, 1931, which status it (now styled Eire by virtue of the Eire (Confirmation of Agreement) Act, 1938), retained from the Imperial point of view, although its actual relation was that of a state organized on republican lines normally associated with an Empire. The status of a plaintiff resident in Southern Ireland was considered in the Court of Appeal in Wakely v. Triumph Cycle Co. Ltd., (1924) 1 K. B. 214, where in the light of these enactments the plaintiff was held to stand in the position of a foreigner and ordered to find security for costs.

The practice in serving a writ, out of the jurisdiction, in Eire, was considered in Hume Pipe and Concrete Construction Co. Ltd. v. Moracrete Ltd., (1942) 1 K. B. 189 (C. A.), Goddard, L. J., said: ". . . it is difficult to see why a defendant in Eire should be in any different position from that of a British subject resident in Canada, Australia or South Africa. I think, however, that the matter is put beyond controversy by the Irish Free State (Consequential) Adaptation of Enactments Order, 1923. The Rules of Court which are made under the provisions of the Judicature Acts have the force of statutes and can properly be described as 'enactments'. It is true that the court can inquire into the validity of a rule, but subject to that the rules made are part of the Judicature Acts. In my view, the Rules of the Supreme Court are clearly an 'enactment' within the meaning of the Order".

Mackinnon, L. J., said: "The original point taken before Master Jelf was that the service of the writ, which was prima facie right under Order 11, rule 1 (e) (iii) was irregular, because it ought to have been service of notice of the writ under Order 11, rule 6, and not of the writ itself. That is a bad point. The defendants are a British company in a British Dominion-Eire-and therefore, the writ itself and not notice of the writ was to be served upon them. $\cdot$ $\cdot$

That case was decided prior to the passing of the Ireland Act, 1949, which recognizes and declares that Eire ceased as from 18th April, 1949, to be part of Her Majesty's Dominions but declares, nevertheless, the Republic of Ireland, shall not be treated as a foreign country for the purposes of any United Kingdom or colonial law. Section 2 of the Act expressly declares that the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom or in any colony, protectorate or United Kingdom trust territory whether by virtue of rule of law or of an Act of Parliament or any other enactment or instrument whatsoever.

According to the definition given by Lord Goddard, it would seem that the Civil Procedure (Revised) Rules, 1948, are an "enactment" having the force of a Colonial Ordinance. The ratio decidendi of the case cited, i.e. that Eire was at that time a "dominion" seems to have been taken away by the Ireland Act, 1949, which Act seems to place Eire less close to the Commonwealth than India. There is a great similarity between section 1 of the India (Consequential Provisions) Act, 1949, and section 2 of the Ireland Act, 1949, both of which save existing law and establish that neither of these countries are foreign even if they are no longer "dominions".

Whatever now may be the practice in the serving of writs in relation to Eire I am inclined to the view that the terms of the Commonwealth Declaration,

1949, read with the India (Consequential Provisions) Act, 1949, enable this Court to order service of the writ, rather than notice of the writ, on a defendant in India. I am open to correction on this point, but it seems to me the acceptance of Her Majesty the Queen by India as a symbol of free association and as Head of the Commonwealth is an acceptance that the Queen's writ may be served in India without infringement of the sovereignty of India as an independent republic within the Commonwealth. Although India has no longer, in law, dominion status, nevertheless, in my opinion, by a saving fiction, it is retained for practical purposes. In my view that was what was intended in part by section 1 of the India (Consequential Provisions) Act, 1949, so that inconvenience and delay in service of process should be avoided. I rule, therefore, that the writ may be served on the defendant by registered air mail post.

Order accordingly.