Nina Dalal vs Merwanji Pheeozshaw Dalal on 11 April, 1930

    Nina Dalal vs Merwanji Pheeozshaw Dalal on 11/4/1930

JUDGMENT

   Amberson Marten, Kt., C.J.

   1. This appeal comes before us on the preliminary issue whether this High
Court has jurisdiction to entertain the petition of the petitioner for
restitution of conjugal rights. The learned trial Judge decided that issue in
the negative feeling himself bound by a decision of the appellate Court in
Nusserwanji Wadia v. Eleonora Wadia (1913) 15 Bom. L.R. 693, s.c. I.L.R. 38 Bom.
125. The petitioner now appeals, and as this is a Full Bench, we are not bound,
as the learned Judge was, by that particular decision. So in effect this appeal
is an appeal from the decision in Wadia v. Wadia. The sole ground on which it is
contended by the respondent that the judgment should be upheld is that both
parties to the petition are not Christians but only one, and that, consequently,
the jurisdiction given or continued to this Court by the Indian Divorce Act
1869, as subsequently amended, does not apply.

   2. As regards the facts, it is sufficient to say that the lady claims to be a
Russian and a Christian who was married in Paris in June 1929 to the defendant,
a Parsi, according to the law of France before the local mayor. A certificate of
that marriage is annexed to the petition. She alleges that at her husband's
invitation she subsequently came to Bombay, but has been neglected by him ; and
accordingly she brings her petition for restitution of conjugal rights. Both
parties at the date of the petition and previously were residing in Bombay, and
so far as the evidence before us goes, are still residing in Bombay. So it is
clear that at material dates they were residing within the jurisdiction of this
High Court.

   3. Now the petition, as I have already said, is one for the restitution of
conjugal rights. That is based on Section 32 of the Indian Divorce Act of 1869
which runs :--

     When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, either wife or husband may apply, by
petition to the District Court or the High Court, for restitution of conjugal
rights, and the Court, on being satisfied of the truth of the statements made in
such petition, and that there is no legal ground why the application should not
be granted, may decree restitution of conjugal rights accordingly.

   4. Section 33:-

     Nothing shall be pleaded in answer to a petition for restitution of
conjugal rights which would not be ground for a suit for judicial separation or
for a decree of nullity of marriage.

   5. So stopping there, one finds that the Court is given jurisdiction as
regards any husband or wife, but nothing there is said as to whether they are to
be Christians or otherwise. But there are certain limitations in that respect in
the Act. They were originally in Section 2 of the Act, but this has been
subsequently amended by Act XXV of 1926 and Act XXX of 1927. The result is that
Section 2 now runs as follows :-

     Nothing hereinafter contained shall authorise any Court to grant any relief
under this Act except where the petitioner or respondent professes the Christian
religion,

     or to make decrees of dissolution of marriage except where the parties to
the marriage are domiciled in India at the time when the petition is presented,

     or to make decrees of nullity of marriage except where the marriage has
been solemnized in India and the petitioner is resident in India at the time of
presenting the petition,

     or to grant any relief under this Act, other than a decree of dissolution
of marriage or of nullity of marriage, except where the petitioner resides in
India at the time of presenting the petition.

   6. Now stopping there, that section clearly limits the wide operation of
Section 32 because the first condition renders it necessary for either the
petitioner or the respondent to be a Christian. In other words, one of the
parties must be a Christian, but there is nothing said there as to the necessity
for both parties being Christians. It will also be observed that -we are not
concerned with the second and third conditions, for they only apply to decrees
for dissolution of marriage or for nullity of marriage. But we are concerned
with the fourth condition, viz., that the petitioner must reside in India at the
time of presenting the petition. That last condition, as I have already said, is
satisfied.

   7. I should have stated that when one turns to Section 10 dealing with
dissolution of marriage, and Section 18 dealing with nullity of marriage, they
both begin in substantially the same way as Section 32, namely, that any husband
or any wife may present a petition. It would seem clear then referring once more
to Section 2 that the legislature in saying that either the petitioner or the
respondent must profess the Christian religion, equally intended that it should
not be essential that both should profess the Christian religion. And if there
was any doubt on the point, it is removed by the fact that the words " or
respondent" have been added by the Act of 1927 to the old Section 2, which
merely required the petitioner to be a Christian.

   8. While I am on that point, it may be that the legislature made this
alteration in Section 2 in view of the decision in Rex v. Hammersmith
Superintendent Registrar of Marriages : Mir-Anwarvddin, Ex parte . There a
Mahomedan was married to an English woman in a registry office in England, and
afterwards claimed to divorce her by an ordinary talaknama. It was held that
that form of divorce could not be recognised in England as dissolving a marriage
solemnised there according to the laws of England. On the other hand the learned
Judges referred to the contention of the Mahomedan husband that he could not get
a divorce in India because he would not come within the provisions of the Indian
Divorce Act as he would not be a Christian petitioner; nor could he get a
divorce in England because he was not domiciled there. Therefore, his only
remedy was a divorce under the law of his own community. As that too was denied
him by the decision of the English Courts he would appear to have had a
legitimate grievance. However that may be, the Indian legislature has since
amended the Act so as to provide that in such a case either the petitioner or
the respondent may be a Christian.

   9. Now I come to the crux of the present case, which is Section 4 of the Act.
That runs as follows:-

     The jurisdiction now exercised by the High Courts in respect of divorce
mensa to tovo, and in all other causes, suits and matters matrimonial, shall he
exercised by such Courts and by the District Courts subject to the provisions in
this Act contained, and not otherwise : except so far as relates to the granting
of marriage-licenses, which may be granted as if this Act had not been passed.

   10. Consequently, the respondent's argument runs that at that date, viz.,
1869, the High Court had no power of granting ordinary divorces. They had only
in effect the old jurisdiction of the English Ecclesiastical Courts which had
come down to them from the days of the Supreme Court Charter of 1823. The
argument; further goes that that jurisdiction which had been given or continued
to them by the Letters Patent following on the High Courts Act of 1861 expressly
limited the jurisdiction to matters matrimonial between subjects professing the
Christian religion, thus Clause 35 of the Letters Patent of 1862 runs :-

     And We do further ordain that the said High Court of Judicature at Bombay
shall have jurisdiction in matters matrimonial between Our subjects professing
the Christian religion, and that such jurisdiction shall extend to the local
limits within which the Supreme Court now has ecclesiastical Jurisdiction.

   11. By the amended Letters Patent of 1865 this local limit is omitted and the
corresponding Clause 35 runs :-

     And We do further ordain that the said High Court of Judicature at Bombay
shall have jurisdiction within the Presidency of Bombay in matters Matrimonial
between Our subjects professing the Christian religion :...

   12. So, to continue the argument, it is urged, that as at the date of this
Divorce Act of 1869 the High Court only had matrimonial jurisdiction between
Christians, it was only that limited jurisdiction which was conferred or
continued by the Divorce Act having regard to Section 4, and that as regards the
words "subject to the provisions in this Act contained and not otherwise", they
were merely words limiting that limited jurisdiction and ought not to be
construed so as to operate as an extension of the jurisdiction of the High
Court. It was accordingly pointed out that there are many subsequent provisions
in the Divorce Act, e. g., in Sections 45 and 46, etc., as to procedure which
would amply satisfy the words " subject to the provisions in this Act contained
and not otherwise."

   13. And I may hero refer to one other limitation, viz., Section 7, which
says:-

     Subject to the provisions contained in this Act, the High Courts and
District Courts shall, in all suits and proceedings hereunder, act and give
relief on principles and rules which, in the opinion of the said Courts, are as
nearly as may be conformable to the principles and rules on which the Court for
Divorce and Matrimonial Causes in England for the time being acts and gives
relief.

   14. Now, I think, no question arises in the present case under Section

   7. The effect of that section was very elaborately considered in Wilkinson v.
Wilkinson on the question whether the High Court had power to grant a divorce
between English subjects domiciled in England. The majority of that bench came
to the conclusion that this High Court had not the power, and that view was in
effect adopted by the British and Indian legislatures, with the result that a
special and limited jurisdiction was afterwards conferred by the British
legislature on Indian High Courts as regards English subjects not domiciled in
India by the Indian and Colonial Divorce Jurisdiction Act 1926. This Act also
validated the past decrees of the various Indian High Courts where the parties
had not been domiciled in India. Further, the Indian Legislature by Act XXV of
1926 enacted the second condition in Section 2, which I have already mentioned,
viz., that the Indian Courts have no power to decree dissolution of marriage
"except where the parties to the marriage are domiciled in India at the time
when the petition is presented".

   15. So we are thrown back for the purposes of the present case on merely
Sections 2 and 4. I will now, having explained the Act, refer at once to the
decision in Wadia v. Wadia which the learned Judge very properly thought he was
bound to follow, notwithstanding that it is fairly clear from his judgment that,
if he had been free to follow his own opinion, he would have arrived at a
different conclusion.

   16. In the case of Nusserwanji Wadia v. Eleonora Wadia the substance of the
judgment is given by Sir Basil Scott in these words at p. 600 of the former
report:-

     The Indian Divorce Act of 1869... by Sections 10-17 conferred on the Indian
Courts jurisdiction to grant decrees for divorce, that is dissolution, subject
however to the limitations stated in Section 2. It would not apparently be
necessary that both parties to a divorce petition should profess the Christian
religion. Nor is this a necessity in the case of petitions for nullity provided
for by Sections 18-21. But as regards the jurisdiction confirmed to the High
Court by Section 4 (which includes suits for restitution) the powers of the
Courts are still limited to Christian subjects within the Presidency.

   17. Now, in the first place, it will be noted that the learned Chief Justice
apparently accepts the view that as regards divorce suits and nullity suits it
is sufficient within the meaning of Section 2 if there is only one party who is
a Christian and not two. But in his judgment, if you get any other form of
matrimonial suit like a restitution suit, then both parties must be Christians.
The result at any rate is anomalous. Clearly, suits for divorce and nullity are
far more important than suits for judicial separation or restitution of conjugal
rights and so on, and for this reason that the former unlike the latter effect a
change in the actual status of the respondent. It is for this reason that the
English Courts after careful deliberation have adopted the view that it is
essential for a divorce that the parties should be domiciled in England before
the English Courts will grant relief, and that mere residence will not suffice.
That is also the principle which has been now established in India. On the other
hand, it is equally clear on the English authorities that the lesser remedy of,
say, judicial separation will be granted by the English Courts provided only the
parties are resident within the jurisdiction, although they may not be domiciled
there. That is because it is felt that a comparatively temporary relief like
that should be available to prevent, for instance, cruelty by a husband to his
wife while living within the jurisdiction irrespective of where they are
domiciled. This principle has been clearly established in the exhaustive
judgment of Mr. Justice Gorell Barnes as he then was in Armytage v. Armytage
[1898] P. 178. And it is referred to by their Lordships of the Privy Council in
Le Mesurier v. Le Mesurier [1893] A. C. 517, 526-7, 531.

   18. Then there is another comment to make on Sir Basil Scott's construction
of the Act, and that is that the learned Judge does not appear to be correct in
treating nullity suits as not falling within Section 4. It is clear that nullity
suits Ml within the jurisdiction of the old Ecclesiastical Courts and,
consequently, within the jurisdiction of the Supreme Court which was expressly
given the old ecclesiastical jurisdiction by Clause 42 of the Supreme Court
Charter 1823. And that jurisdiction of the Supreme Court passed to the High
Court under the High Court Acts and Letters Patent already mentioned. In this
connection we have been referred to the Matrimonial Causes Act 1857, Section 6,
which specifically refers to this particular jurisdiction of the old
Ecclesiastical Courts. It runs:-

     As soon as this Act shall come into operation, all Jurisdiction now vested
in or exerciseable by any Ecclesiastical Court or Person in England in respect
of Divorces a Mensa et Thorn, Suits of Nullity of Marriage, Suits for
Restitution of Conjugal Rights, or Jactitation of Marriage, and in all Causes,
Suits, and Matters Matrimonial, except in respect of Marriage Licences, shall
belong to and be vested in Her Majesty, and such Jurisdiction, together with the
Jurisdiction conferred by this Act, shall be exercised in the Name of Her
Majesty in a Court of Record to be called 'The Court for Divorce and Matrimonial
Causes'.

   19. Assuming, however, that the above statement re nullity suits was made per
incuriam, we get this alleged result, viz., that for a divorce suit it is
sufficient if one party is a Christian but in all other cases it is necessary
under this Act that both parties should be Christians. For this I can see no
reason whatever. And when I turn to Section 4 it seems to me that this anomalous
result is entirely got rid of by the words "subject to the provisions in this
Act contained and not otherwise". That to my mind clearly means that the old
Ecclesiastical jurisdiction vested in this High Court is thenceforth to be
exercised in accordance with the provisions of the Indian Divorce Act 1S69 and
not otherwise.

   20. Then as regards the argument that Section 4 was never intended to extend
the jurisdiction, one answer is that this very section gives jurisdiction to the
District Courts which, undoubtedly, they did not previously possess, viz., the
same jurisdiction as the High Courts. And this is borne out by the preamble to
that Act.

   21. An alternative argument was advanced to us in reply by Mr. Desai for the
appellant, to the effect that the wide words of Clause 35 of the Letters Patent
of 1865, viz., that the High Court shall have jurisdiction in matters
matrimonial was sufficient to give jurisdiction in divorce. Consequently,
Section 4 applied to divorce as well as all other matrimonial cases. Therefore,
in divorce cases as well as in all other cases, it was only necessary, as far as
Section 2 was concerned, to have one party a Christian and not both. However, in
the view I take, that contention is not correct. So far as I am aware, there is
no instance of this High Court having ever exercised any such alleged power of
divorce between Christians prior to the Act of 1869. And, as my brother
Broomfield has pointed out, if- the power existed one would have expected it to
be mentioned in Section 4 before the words "divorce a memed toro", which in
ordinary language is not a divorce at all, viz., a divorce a vinoulo but is a
judicial separation, and which incidentally has been abolished by Section 22 and
a decree for judicial separation substituted.

   22. Sir Basil Scott relied on the decision of the Privy Council in Ardaseer
Cursetjee v. Perozeboye (1856) 6 M. I. A. 348 that under the Ecclesiasticai
jurisdiction conferred by the Supreme Court Charter, the Supreme Court had no
jurisdiction to grant any matrimonial relief where both parties were Parsis. But
that is quite different from the present case, where one of the parties is not a
Parsi, and where we have to consider the effect of the Act of 1869 as
subsequently amended, which Act was not in force at the date of the decision in
Ardaseer Cursetjee v. Perozeboye.

   23. There is one other case I should like to refer to, viz., Chetti v. Chetti
[1909] P. 67 There a Hindu had married an English woman at a registry office in
London, and she subsequently presented a petition for judicial separation on the
ground of desertion. It was contended by the husband that by his personal law,
viz.. Hindu law, he "had no power to marry outside his caste, and therefore the
marriage was illegal, and therefore a petition for separation would not lie. The
English Court held that the marriage having been solemnized in London was valid
under English law, and declined to consider any personal incapacity of the
husband under his personal law. They accordingly entertained the petition, and
eventually passed an order thereon and dealt with the custody of the child of
the marriage. On the question of religion the President during the course of the
argument said :- "We are not now dealing with a religious marriage. This was a
marriage before a registrar." Then at the top of p. 72 he said :- "But I could
not be expected in every case to inquire what the religion of the parties to the
marriage was."

   24. Therefore, we have there a case where the English Court entertained a
petition for judicial separation although the husband was a non-Christian, and
where, moreover, by the laws of his own community, marriage was not confined to
the union of one man with one woman for life as is the law in England. On the
other hand, in the present case, monogamy has been established by the
Legislature, as regards Parais. Therefore, in that respect, Parsi law is now the
same as that prevailing in England.

   25. I have now dealt with the more material Joints in the case, and the
result which I have arrived at is that the Indian Divorce Act intended it to be
sufficient for one party to profess the Christian religion, and did not require
that both parties should do so., Consequently, in my judgment, and with all
respect to those who took a contrary view, the decision in Nusserwanji Wadia v.
Eleonora Wadia on this particular point was wrong and ought to be overruled. In
saying this, I notice that although the husband in that case was represented by
such distinguished lawyers as Sir Thomas Strangman, Mr. Inverarity and Sir
Chimanlal Setalvad, this particular point of construction on which the appeal
was eventually decided in their client's favour does not appear to have been
even argued by them either on the original hearing before Sir Norman Macleod
whose judgment was reversed, or in the appellate Court afterwards.

   26. Under these circumstances it follows that I would reverse the judgment of
the trial Judge in the present case, and direct the preliminary issue in
question to be answered in the affirmative, and the case to be remanded to be
dealt with according to law.

   Mirza, J.

   27. With great respect I have arrived at the same conclusion that the
construction put on Section 4 of the Indian Divorce Act, 1869, in the case of
Nusserwanji Wadia v. Eleonora Wadia with

   regard to the jurisdiction of this Court in cases relating to restitution of
conjugal rights is not correct. The contention that Section 4 only confirms the
jurisdiction which the High Court already exercised at the date of the enactment
of the Indian Divorce Act seems to overlook the fact that the section itself
provides that the jurisdiction in matters matrimonial exercised by the High
Court until then was subject to the provisions contained in the Act. There is
nothing in the language of Section 32 of the Indian Divorce Act to indicate that
it was subject to the provisions that both parties in cases for restitution of
conjugal rights should be of the Christian faith. Section 2 of the Act, as it
stood at the date of the decision in Wadia v. Wadia, provided that if the
petitioner alone professed the Christian faith the provisions of the Act would
be applicable to him. Since the date of the decision in Wadia v. Wadia the
legislature has made its intention quite clear by providing in an amending Act,
viz., Act XXX of 1927, that as long as either the petitioner or the respondent
professed the Christian religion the provisions of the Act would be applicable.
I agree with the order perposed by my Lord the Chief Justice.

   Broomfield, J.

   28. The trial Court in deciding that it had no jurisdiction to entertain the
petition followed with some reluctance the decision of this Court in Wadia v.
Wadia, and what this Bench has to decide is whether that case, in which it was
decided that the High Court had no jurisdiction to grant a decree for
restitution of conjugal rights against a respondent who is not a Christian or
who is not within its jurisdiction, was correctly decided. I agree with the
learned Chief Justice that our answer ought to be that Wadia v. Wadia was not
correctly decided and that it should be overruled.

   29. The Indian Divorce Act of 1869, as a matter of history, was passed in
consequence of a despatch of the Secretary of State of May 14, 1862, from which
it appears that it was intended that the High Court should have the same
jurisdiction as the Court for Divorce and Matrimonial Causes in England; and it
is provided in Section 7 of the Act that "Subject to the provisions contained in
this Act, the High Courts and District Courts shall, in all suits and
proceeding*) hereunder, act and give relief on principles and rules which, in
the opinion of the said Courts, are as nearly as may be conformable' to the
principles and rules on which the Court for Divorce and Matrimonial Causes in
England for the time being acts and gives relief." As the learned Chief Justice
has pointed out, in circumstances corresponding to those in the present case,
the Courts in England would grant relief to the petitioner: see Chetti v. Chetti
[1909] P. 67,

   30. Sir Basil Scott's reasoning in Wadia v. Wadia was on these lines. He
pointed out first that under Section 10 and the following sections of the Act
the Court has jurisdiction to grant decrees for dissolution of marriage, but
that is subject to the limitation contained in Section 2, which does not require
that both parties should be Christians. Apparently, he considered that the same
would apply in the case of proceedings for nullity, but that appears to have
been a slip, because the High Court's existing jurisdiction included
jurisdiction to grant a decree for nullity and its powers in that respect
therefore must be governed by Section 4. Section 32 is the section of the Act
which empowers the Courts to decree restitution of conjugal rights. As regards
this, Sir Basil Scott held that there was another limitation besides the
limitation laid down in Section 2, Section 4 confirms in the case of the High
Courts and confers on the District Courts the jurisdiction which was formerly
exercised by the High Courts in respect of divorce a mensa et toro and in all
other cases, suits and matters* matrimonial, and directed that this jurisdiction
should be exercised by such Courts and by the District Courts "subject to the
provisions in this Act contained and not otherwise." Sir Basil Scott's view was
that this section did no more than confirm the already existing jurisdiction of
the High Court in matrimonial matters, and he held that so far as that
jurisdiction was concerned it must be limited to cases where both parties were
Christians. lie took this view by reason of Clause 35 of the Letters Patent,
which according to him gave effect to the decision in Ardaseer Gursetjee v.
Perozeboye (1856) 6 M. I. A. 348.

   31. The decision in Wadia v. Wadia was based on certain other grounds. It was
held to be barred in the alternative by virtue of Section 7 of the Act, because
in that case the respondent was in England and not within the jurisdiction. In
the case before us both parties are resident, if not domiciled, here, so that
particular point does not arise. There was a further point in Wadia v. Wadia,
namely, that Sir Basil Scott was not prepared to hold in the circumstances of
that case that the petitioner was even residing in India within the meaning of
Section 2 of the Act. In that respect also the present case can be
distinguished.

   32. As regards the first and the main argument on which the decision in Wadia
v. Wadia was based, Mr. Setalvad has supported it on these lines. He urged that
it was not a case of the old jurisdiction being taken away by the Indian Divorce
Act and something else substituted for it, but a case of the old jurisdiction
being reserved or confirmed. If the intention of the legislature had been to
abrogate Clause 35 of the Letters Patent nothing would have been easier than to
say so. It would have been quite easy to frame Section 1 in such a way as to
make the whole matrimonial jurisdiction obviously dependent on the Act itself.
Moreover, as was pointed out by the learned Chief Justice, there is at any rate
one matter, namely, jactitation of marriage, which was within the jurisdiction
of the Courts before the Divorce Act and in respect of which no powers have been
conferred by that Act. It would seem to follow from that that it would be going
too far to say that the Divorce Act abrogates Clause 35 of the Letters Patent
altogether. It is, however, not necessary for the petitioner's argument to go
that length.

   33. Then Mr. Setalvad contended that as Section 4 merely confirmed the old
jurisdiction, and as that old jurisdiction, as fixed by Clause 35 of the Letters
Patent* was to be exercised as between Christians only, then Section 4 must
simply mean that the jurisdiction in matrimonial matters as between Christians
is to be exercised in accordance with the provisions of the Act. As he pointed
out there are certain other limitations imposed by the Act, for instance, under
Sections 32, 33, 45, 51, etc., and it would according to this argument give an
intelligible meaning to Section 4 to suppose that the words "subject to the
provisions in this Act contained, and not otherwise" have reference to these
other limitations, whereas, it was suggested, the language of Section 4 is not
appropriate for an enlargement of the jurisdiction.

   34. On the other hand, Mr. Setalvad had to admit that as a matter of fact the
jurisdiction of the Courts has been greatly enlarged by the Indian Divorce Act,
because the Act granted the power to divorce which was not possessed before. Mr.
Setalvad could not also deny that there appears to be no reason in justice or
policy why both parties should need to be Christians in the case of suits for
judicial separation or for restitution when it is clearly sufficient under the
Act that one party should be a Christian in the case of a petition for divorce.
Moreover, his argument involves a finding that Section 4 is independent of
Section 2 of the Act. That is clearly the weak point in the case, because
according to Section 4 the jurisdiction is to be exercised ''subject to the
provisions in this Act contained and not otherwise," and there would seem to be
no reason why Section 2 should be excluded. In respect of divorce at any rate,
the Act of 1869 does, undoubtedly, override the provisions of Clause 35 of the
Letters Patent. For in respect of divorce it is admittedly not necessary that
both parties should be Christians. That being so, the question is whether it is
necessary or reasonable to hold, that Section 4 of the Act is still subject to
the limitations of Clause 35 of the Letters Patent. In my opinion it is neither
necessary nor reasonable to take that view. According to the marginal heading to
Section 2 the Act fixes the " extent of power to grant relief generally." The
marginal heading of Section 4 is "Matrimonial jurisdiction of High Courts to be
exercised subject to Act." From its position in the Act this section appears to
be intended rather to alter the law as to the Courts by which jurisdiction may
be exercised than to impose a limitation additional to and inconsistent with
that contained in Section 2. As was pointed out to us by Mr. O'Gorman, there is
nothing in the frame of the Act, nothing in the language of Section 10 or
Section 18, for instance, as compared with the language of Section 32, to
support the view that proceedings under the latter section are subject to any
further limitation as regards jurisdiction than proceedings for divorce. It is,
moreover, obvious that there is no reason why there should be any such
distinction between the relief provided by Section 32 and the relief provided by
those other sections. Clause 44 of the Letters Patent makes it perfectly clear
that all the provisions of the Letters Patent are subject to the legislative
powers of the Governor General in Council. It was, therefore, clearly within the
powers of the legislature to enact the Indian Divorce Act in such a way as to
remove the limitation contained in Clause 35 of the Letters Patent. It is open
to us to hold that that was the intention of the legislature, and as both
justice and expediency are in favour of it I agree that that is the view this
Court ought to take.

   35. Per Curiam. Appeal allowed. Order of the lower Court discharged. Answer
preliminary issue in the affirmative. Remand suit to be dealt with according to
law. Respondent to pay petitioner's costs of this appeal and of the preliminary
issue in any event, and also of the notice of motion.