Kerala High Court
Sosamma C.Mathew vs Mathew M.Titus @ Mathew Titus on 30 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:47103
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 30TH DAY OF JUNE 2025 / 9TH ASHADHA, 1947
MAT.APPEAL NO. 521 OF 2014
AGAINST THE JUDGMENT DATED 30.01.2014 IN OP NO.784 OF 2009 OF
FAMILY COURT, THIRUVALLA
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APPELLANT/PETITIONER:
SOSAMMA C.MATHEW,
D/O.LATE C.K.MATHEW, CHERIYAMANNIL HOUSE, CHERUKOLE,
KOZHENCHERRY, PATHANAMTHITTA DISTRICT, NOW RESIDING AT
HILLS SIDE, AVENUE QUEEN VILLAGE, NEW YORK,
U.S.A.-11427.
BY ADVS.
SRI.LIJU.V.STEPHEN
SMT.INDU SUSAN JACOB
RESPONDENT/RESPONDENT:
MATHEW M.TITUS @ MATHEW TITUS
S/O.LATE DETHOS, MANNIL HOUSE, MARAMON P.O.,
KOZHENCHERRY, PATHANAMTHITTA DISTRICT, NOW RESIDING AT
251 STREET, 80/32, BELL ROSE, NEW YORK, U.S.A.-11426.
BY ADVS.
SRI.P.HARI HARAN NAIR
SRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.C.V.MANUVILSAN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
30.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:47103
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
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Mat. Appeal No.521 of 2014
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Dated this the 30th day of June, 2025
J U D G M E N T
Sathish Ninan, J.
The original petition filed by the divorced wife of
the respondent, seeking declaration and partition of her
one-half share over the petition schedule properties,
was dismissed by the Family Court. She is in appeal.
2. The petitioner and the respondent got married on
29.05.1975. They are Indian citizens residing at the
United State of America. The petition schedule consists
of three items of immovable properties. Their marriage
was dissolved through Ext.A1 judgment of the Supreme
Court of the State of New York, County of Nassau
(hereinafter referred to as, “the foreign court”).
Petition schedule properties were acquired during the
subsistence of the marriage. The foreign court negatived
the claim of exclusive title by the respondent and
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declared the properties to be marital assets. The
properties were ordered to be sold and one-half of the
proceeds to be given to the petitioner.
3. The petitioner alleges that the respondent
failed to honour the directions in Ext.A1 judgment.
According to the petitioner, though the entire
consideration for the acquisitions had proceeded from
her, in the light of the judgment of the foreign court,
she is claiming only one-half share over the properties.
Accordingly the original petition was filed.
4. The respondent-husband contended that the
original petition is barred by limitation. It was also
contended that the foreign court was not a court of
competent jurisdiction to declare rights over the
immovable properties situated in India. The claim of the
petitioner that the acquisition of the properties were
utilising her funds, was also denied.
5. The Family Court held the original petition to
be barred by limitation. It was also held that the
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foreign court lacked jurisdiction to adjudicate on the
rights over immovable properties situated in India. It
was further held that there is no evidence to find that
the petitioner-wife had contributed for the purchase of
the property. Accordingly the original petition was
dismissed.
6. We have heard Sri.Liju V. Stephen, the learned
counsel for the appellant-petitioner and Sri.C.V.
Manuvilsan, learned counsel for the respondent-husband.
7. The points that arise for determination are: –
(i) Is the original petition barred by limitation?
(ii) Is the adjudication of title over the petition schedule
properties by the foreign court valid and binding on the parties?
(iii) On the evidence, has the petitioner proved her one-half
rights over the petition schedule properties?
8. The reliefs claimed in the original petition
read thus :-
“A) To declare that, Petitioner is entitled for ½ share over petition
schedule properties and the properties are marital properties.
B) Allow the partition of petition schedule properties by metes and bounds
and give ½ share of the same to the Petitioner by actual division and she
may be put into separate possession thereof.”
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9. The holder of a foreign judgment, has two
remedies. He can sue on the foreign judgment for its
enforcement or sue on the original cause of action ( See:
Badat and Co. Vs. East India Trading Co. (AIR 1964 SC 538), Gopal Singh Hira
Singh vs. Punjab National Bank and Ors. (AIR 1976 Del.115) . If the
judgment was by a superior court of any reciprocating
territory, the decree could be executed in India under
Section 44A of the Code of Civil Procedure, on
satisfaction of the conditions mentioned in the Section.
The relief claimed herein, as noted above, is not to
enforce the foreign judgment but for partition and
separate possession on declaration of the plaintiff’s
right, that is, on the original cause of action. Once
the petitioner establishes her right over the property
as a co-owner, unless the respondent pleads and proves
ouster, the petitioner cannot be non-suited. The suit
being not one to enforce the foreign judgment, Article
101 of the Limitation Act, which provides the period of
limitation for suit upon a foreign judgment, is not
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applicable. Therefore, we are unable to agree with the
trial court in its finding that the suit is time barred.
10. Now coming to the right of the petitioner, it
is the averment in the original petition that the entire
consideration for the purchase of the properties
proceeded from the petitioner. However, the petitioner
concedes half right over the properties with the
respondent in the light of Ext.A1 judgment of the
foreign court. The fact that the petitioner was a nurse
at Kuwait and had later migrated to United States of
America, and that the respondent-husband had later
joined her at the places, are not in dispute. According
to the petitioner, the properties were purchased out of
her income.
11. To prove that the purchase was utilising the
funds of the petitioner, apart from Ext.A1 judgment of
the foreign court and her oral testimony, no other
evidence is adduced. So we have to consider whether and
how far Ext.A1 judgment of the foreign court could be
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relied upon to find the right of the petitioner over the
properties.
12. Here, Section 13 of the Code of Civil Procedure
is of significance. Section 13 provides for
conclusiveness of a foreign judgment inter parties on
the matter adjudicated upon, except under the six
circumstances enumerated thereunder. Section 13 reads
thus:-
“13. When foreign judgment not conclusive.- A foreign judgment shall
be conclusive as to any matter thereby directly adjudicated upon between
the same parties or between parties under whom they or any of them
claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent
jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded
on an incorrect view of international law or a refusal to recognise the law
of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are
opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force
in India.”
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It is the contention of the respondent that, the foreign
court lacked jurisdiction to adjudicate on the issue of
title over immovable property situate in India;
therefore clause (a) is squarely attracted, and hence
Ext.A1 judgment is of no avail.
13. With regard to the jurisdiction of the foreign
court to decide on the disputed title over immovable
property situated in India, in Viswanathan & others v. Abdhul Wajid
(AIR 1963 SC 1), it was held that lex situs governs the
issue and that it is the court within whose jurisdiction
the property is situated which can decide the same. The
Apex Court also observed,
“A foreign judgment which purports to operate in rem will not attract extra-
territorial recognition unless it has been given by a court internationally
competent in this respect.”
14. In Viswanathan‘s case (surpa), the Apex Court has
delineated the difference between an action in rem and
an action in personam thus: –
“Roman lawyers recognised a right either as a jus in rem or a jus in
personam. According to its literal meaning “jus in rem” is right in respect
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-: 8 :-of a thing, a jus in personam” is a right against or in respect of a person. In
modern legal terminology a right in rem, postulates a duty to recognise the
right imposed upon all persons generally, a right in personam postulates a
duty imposed upon a determinate person or class of persons. A right in rem
is therefore protected against the world at large; a right in personam
against determinate individuals or persons. An action to enforce a jus in
personam was orginally regarded as an action in personam and an action to
enforce jus in rem was regarded as action in rem. But in course of time,
actions in rem and actions in personam acquired different content. When in
an action the rights and interest of the parties themselves in the subject
matter are sought to be determined, the action is in personam. The effect of
such an action is therefore merely to bind the parties thereto. Where the
intervention of the Court is sought for the adjudication of a right or title to
property, not merely as between the parties but against all persons
generally, the action is in rem. Such an action is one brought in the
Admiralty Division of the High Court possessing Admiralty jurisdiction by
service of process against a ship or cargo within jurisdiction. There is
another sense in which an action in rem is understood. A proceeding in
relation to personal status is also treated as a proceeding in rem, for the
judgment of the proper court within the jurisdiction of which the parties are
domiciled is by comity of nations admitted to recognition by other courts. As
observed by Cheshire in his “Private International Law”, Sixth Edition at
page 109, “In Roman law an action in rem was one brought in order to
vindicate a jus in rem,i.e., a right such as ownership available against all
persons, but the only action in rem known to English law is that which lies
in an Admiralty court against a particular res, namely, a ship or some other
res, such as cargo, associated with the ship.” Dealing with judgment in rem
and judgments in personam, Cheshire observes at page 653,” It (judgment
in rem) has been defined as ‘a judgment of a court of competent jurisdiction
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-: 9 :-determining the status of a person or thing (as distinct from the particular
interest in it of a party to the litigation); and such a judgment is conclusive
evidence for and against all persons whether parties, prives (privies) or
strangers of the matter actually decided’ …… A judgment in rem settles the
destiny of the res itself ‘and binds all persons claiming an interest in the
property inconsistent with the judgment even though pronounced in their
absence’; a judgment in personam, although it may concern as res, merely
determines the rights of the litigants inter se to the res. The former looks
beyond the individual rights of the parties, the latter is directed solely to
those rights. …..”
15. Section 41 of the Evidence Act states that
probate, matrimonial, admiralty and insolvency
proceedings are actions in rem. In the present case, the
dispute between the petitioner and the respondent, is
with regard to inter se rights over the immovable
properties, and is only an action in personam. It will
not affect the rights if any of third parties to the lis
who would be entitled to establish a better title.
16. Again, in Viswanathan‘s case (surpa), the Apex Court
observed,
“But there is no general rule of private international law that a court can in
no event exercise jurisdiction in relation to persons, matter or property
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outside jurisdiction. Express enactment of provisions like S. 20, civil
procedure Code, Act V of 1908 and O. XI, R. 1 of the Supreme Court Rules in
England, negative such an assumption. The courts of a country generally
impose a therefold (threefold) restriction upon the exercise of their
jurisdiction (1) jurisdiction in rem (binding not only the parties but the world
at large) by a court over res outside the jurisdiction will not be exercised,
because it will not be recognised by other courts; (2) The court will not deal
directly or indirectly with title to immovable property outside the jurisdiction
of the State from which it derives its authority and (3) Court will not assist in
the enforcement within its jurisdiction of foreign penal or revenue laws.”
While the general rule is that lex situs governs all
matters relating to immovable properties, there are
certain well recognised exceptions. They are claims
based on contract, equity, trust and fiduciary
relationship. These exception was carved out in Penn v.
Baltimore [1750 (1) Ves Sen. 444]. In Dicey, Morris & Collins on,
The Conflict of Laws (14th edn. Page 1150) it is stated,
“The principle on which this exception, originally derived from the practice
of the Court of Chancery, rests is that though the court has no jurisdiction to
determine rights over foreign land, yet where the court has jurisdiction over
a person from his presence in England, or from his submission to the
jurisdiction, or from its power to serve him with a writ (now called a claim
form), though he is out of England, the court has jurisdiction to compel him
to dispose of, or otherwise deal with, his interest in foreign land so as to
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give effect to obligations which he has incurred with regard to the land. The
principle has been thus explained : “Courts of Equity have from the time of
Lord Hardwicke’s decision in Penn v. Baltimore exercised jurisdiction in
personam in relation to foreign land against persons locally within the
jurisdiction of the English court in cases of contract, fraud and trust.”
17. In Morris on the Conflict of Laws (4th Edition,
Page 305) :
“There are,” said Parker J. in Deschamps v. Miller[(1908) 1 CH.856 at
P.863], “no doubt, exceptions to the rule, but, without attempting to give
an exhaustive statement of those exceptions, I think it will be found that
they all depend on the existence between the parties to the suit of some
personal obligation arising out of contract or implied contract, fiduciary
relationship or fraud, or other conduct which, in the view of a court of
equity in this country, would be unconscionable, and do not depend for
their existence on the law of the locus of the immovable property.”
18. In Cook Industries Incorporated v. Galliher [(1979) CH 439], the
Court, while observing that the foreign court has no
jurisdiction to entertain an action for determination of
title to immovable property outside its jurisdiction, it
was held that there are certain exceptions, one among
which is, the existence of an equity between the
parties. It was held,
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“It is conceded that the court has no jurisdiction to entertain an action for the
determination of the title to or right to possession of any immovable property
situate out of England with certain exceptions. One exception is where there is
an equity between the parties. …”
The court also referred to Dicey and Morris on The
Conflict of Laws 9th Edition 1973, Page 522, in the said
regard.
19. Therefore, claims based on contracts, equity,
trust and fiduciary relationships are exceptions to the
general rule of lex situs if, the action is one in
personam. That a matrimonial relationship involves the
elements of such exceptions is beyond cavil. Noticeably,
in the case at hand it was the respondent who had
approached the foreign court seeking a decree of divorce
and also claiming rival title over the property in
question. The respondent chose the forum. The parties
voluntarily submitted to the jurisdiction of the court.
20. On the above discussions, we negative the
contention regarding lack of competency of the foreign
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court.
21. A reading of Ext.A1 judgment of the foreign
court reveals that, both the parties were represented in
the proceedings. Evidence, both oral and documentary,
were adduced by both sides. The court had considered the
evidence and the submissions of the counsel, and passed
the judgment. The relevant portion of the judgment
reads: –
“….. The plaintiff was represented by Satish K. Bhatia, Esq.. and the
defendant was represented by Michael L. Fishman, Esq. Final
submissions from counsel were received on June 24, 2005. The Court has
had a full opportunity to consider the evidence presented with respect to
the issues in this proceeding, including the testimony offered and the
exhibits received. The Court has further had an opportunity to observe the
demeanor of the various witnesses called to testify and has made
determinations on issues of credibility with respect to these witnesses. The
Court now makes the following findings of fact and conclusions of law:
G. The Court deems husband’s claim of separate property as to the
property known as P.120/1/1 of Pathanamthitta Municipality, India, sale
deeds #23/89 and 10/1989, consisting of 10 cents of property and a three-
storied building, to be unfounded. Accordingly, the Court concludes that
the three properties in plaintiff’s name located in India, to wit: a) a
property identified as survey #91/13 of Thottapuzhasserry Village, India
deed #2021/79 consisting of 28 cents of property b) a property identified
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-: 14 :-as survey #78/2 and 78/3 of Maramon, India, deed #56/1979, consisting
of 8 cents of property; and c) a property identified as P.120/1/1 of
Pathanamthitta Municipality, India, sale deed #23/89 and #10/1989
consisting of 10 cents of property and a three-storied building are marital
property. The plaintiff is directed to sell all of the aforesaid properties
forthwith, and the defendant is entitled to fifty percent (50%) of the net
share within thirty days of the sale of each individual property. The
plaintiff shall place each of the properties on the market for sale within a
reasonable period of time, but in no event later than six months following
the date of this decision and order, and shall notify defendant of such
placement. Plaintiff is to furnish defendants with copies of all closing
statements within ten days following the sale of each of the properties.”
The Court, on merits found, that the husband failed to
establish that the properties in question are his
separate properties. Based on the evidence on record the
foreign court ordered 50% of the sale proceeds to be
given to the petitioner. This is in accord with Section
45 of the Transfer of Property Act which provides for
determination of rights over the property in proportion
to the contribution for its acquisition. Section 45
reads thus,
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“”45. Joint transfer for consideration.–Where immovable property is
transferred for consideration to two or more persons and such consideration
is paid out of a fund belonging to them in common, they are, in the absence
of a contract to the contrary, respectively entitled to interests in such
property identical, as nearly as may be, with the interests to which they were
respectively entitled in the fund; and, where such consideration is paid out of
separate funds belonging to them respectively, they are, in the absence of a
contract to the contrary, respectively entitled to interests in such property in
proportion to the shares of the consideration which they respectively
advanced.
In the absence of evidence as to the interests in the fund to which they
were respectively entitled, or as to the shares which they respectively
advanced, such persons shall be presumed to be equally interested in the
property.”
The judgment of the foreign court is sufficient enough
to find that one-half of the consideration for
acquisition of the properties proceeded from the
petitioner-wife.
22. As noticed supra, Section 13 of the Code of
Civil Procedure provides for conclusiveness of a foreign
judgment except under six circumstances enumerated
thereunder. We have already upheld the competency of the
foreign court. We have considered the fact that the
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judgment is one passed on the merits of the case. We
have also noticed that the judgment is in accord with
the Indian Law. There is no case that the judgment was
obtained by fraud. The jurisdiction of the foreign court
was invoked by the respondent himself. Therefore, the
foreign judgment Ext.A1, as amended in Ext.A2, is
conclusive and binding upon the parties and is
sufficient enough to find the right of the petitioner
over the petition schedule properties.
23. No other contentions are urged.
24. Upon the above discussions and findings, the
one-half right of the petitioner over the petition
schedule properties are liable to be declared and
partition ordered.
Resultantly, the appeal is allowed. The decree and
judgment of the trial court are set aside. A preliminary
decree for partition is passed as hereunder:-
(i) The one-half share each of the petitioner and
respondent over the petition schedule
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-: 17 :-properties are declared.
(ii) The properties shall be divided by metes and
bounds and the petitioner shall be entitled
to separate allotment possession of one such
share.
(iii) Parties to bear their respective costs.
(iv) Court to proceed for final decree without
waiting for an application in the said
regard, in the light of the judgment of the
Apex Court in Kattukandi Edathil Krishnan and Another v.
Kattukandi Edathil Valsan and Others (2022 SCC OnLine SC 737).
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge