Report No. 69

IV. Procedure

We now turn to a question of procedure, relevant to evidence of foreign law. Suppose a party wants to urge, upon principles of conflict of law, that the law of a foreign country governs all or part of the particular controversy, how and when is the party to make this contention known formally, and how then is he to go about proving the content of the foreign law?

This is a question which may arise1 On the one hand, foreign law is not a "fact" in the ordinary sense. But, on the other hand, evidence thereof can be given. A question of foreign law cannot be assimilated to a question of domestic law in all respects. There is, therefore, need for what is called a "functional treatment2. In this connection, it is of interest to note that the Federal Rules of Civil Procedure in the U.S.A. provide3 for notice, in the following terms.-

"A party who intends to raise an issue concerning the law of a foreign country shall give ,notice in his pleadings or other reasonable written notice."

Recommendation.-We are of the view that this is a useful provision, which should be adopted for civil cases. having retard to the consideration just now mentioned.4

Foreign law in relation to negotiable instruments.-Questions of foreign law may arise frequently in Indian courts. A few examples may be taken in relation to negotiable instruments. In an early Madras case,5 for example, a promissory note was void for want of registration according to the law of that State, but it was valid according to the law in British India. In a suit filed by the payer of the promissory note in British India upon the note, it was held that the liability of the maker was governed by the law of the State of Pudukota, that being the law of the place where the note was made the lex loci contractus. Since the note was void according to that law, the defendant was held not liable to pay the amount mentioned in the promissory note.

The rule of foreign law was successfully invoked in this case. Illustration of a case where an unsuccessful attempt was made to invoke a rule of foreign law is to be found in a Bombay case.6 In that case, a promissory note was executed by the defendant, a resident in British India, at a place in the Nizam's territory, in favour of the plaintiff. The note did not bear the stamp required under the stamp law of the Nizam's State. The defendant challenged the maintainability of the suit on the ground of non-compliance with the stamp law of the place of its issue. This contention was rejected, on the ground that the stamp law of the Hyderabad State did not make the note void, but merely provided that it should not be receivable as evidence7.

Again, by section 26 of the Negotiable Instruments Act, 1881, the capacity of parties to enter into a contract of negotiable instruments is governed by the "law to which it is subject8. Apparently, this means the law of the domicile. Now, when the instrument is drawn in a foreign country where the age of majority is , say, twenty-one years, and the person drawing the instrument is, say, of the age of twenty years, and the instrument is payable in India, the question may arise as to the capacity of the drawer9. A some-what similar situation arose in an Allahabad case10. A cheque was drawn and payable in India, and was endorsed in India by a European British subject domiciled in England, who was under twenty years of age. The cheque was dishonoured. It was held by the lower Court that the person endorsing the cheque was not liable to be sued on the instrument, because-

(a) the capacity of the endorser was governed by the law of domicile by reason of section 11 of the Indian Contract Act; and

(b) by the law of the domicile (English law), he was a minor and, therefore, he was not liable to be sued on the instrument even though he had reached the age of majority (eighteen years) under the Indian law.

In the High Court, the matter was decided on other grounds. But the case is referred to here as illustrating a fact situation which may possibly arise.

Reliance by plaintiff on foreign law.-In some of these cases, foreign law was invoked by the defendant. It may be noted that such a controversy can also arise in the case of application of the foreign law when relied on by the plaintiff. For example, in the case of a promissory note which is alleged to be void for want of registration according to the foreign law,11 the plaintiff may sue under the specific Relief Act to get the instrument declared void. In such a suit, if the plaintiff is going to take the stand that the law applicable is foreign law, it is proper that the matter should be pleaded clearly, so that the opposite party may have notice of the question likely to be raised.

Other Fields.-Questions of foreign law may arise in other fields of law. For example, there may be a question whether the Hindu law as applied in India and the Hindu law as applied elsewhere are the sam.- for instance, the law relating to the pious obligation of the son in relation to a mortgage which is executed by a father not for family necessity or benefit, but for a purely personal purpose, in consideration of debt which was not antecedent to the creation of the mortgage12. Then, questions have arisen as to the law applicable to the assignment of an actionable claim, such as, an insurance policy13.

An example can also be drawn from the field of matrimonial law. A person may petition for restitution of conjugal rights or other matrimonial relief, in respect of a marriage. The marriage may be void or voidable by Indian law, but is regarded by the petitioner to be valid by the law of a foreign country (which is regarded as applicable to the marriage). In such a case, the plaintiff himself relies on the foreign law, and it is proper that he should be made to notify to the other party the question of foreign law which is going to be raised. In all these cases, the conduct of the litigation would be facilitated if the party going to rely on foreign law notifies the other party.

1. Benjamin Paplan, Note in 81 Harvard Law Review 613.

2. Note in 81 Harvard Law Review 613, 614.

3. Rule 44.1, Determination of Foreign Law (earlier half), Federal Rules of Civil Procedure

4. See draft amendment, infra.

5. Pallianappa v. Parikaipachetty, 1894 ILR 17 Mad 262 (Muttusami Ayyar & Best, JJ.).

6. Dhondiram v. Sadesukh, ILR 42 Born 522, discussed by Laxmi Devi in Private Internatioru Law and Negotiable Instruments in India, (1965) 14 Indian Year Book of Internationz Affairs 177, 182.

7. Also see Venketaram Reddy v. Raja of Gagwal, ILR 63 Mad 968.

8 Compare section 11 of the Indian Contract Act, 1872.

9. As regards capacities of the parties in mercantile contracts in general, see T.S. Ramarao, Private International law in India, (1955) Indian Year Book of International Affairs 219, 251.

10. Rohilkhund Bank v. Rao, 1855 ILR 7 All 490 (FB).

11. Compare facts in Palaniappa v. Parikaipa Chetty, ILR 17 Mad 262, supra.

12. Virdhachalam Pillai v. Chaldai Serian Bank, AIR 1964 SC 1525.

13. Rabindra N. Maitra v. Life Insurance Corporation of India, AIR 1964 Cal 141 (151, 152), paras. 65-14.

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