Page 1

ICLR: Chancery Division/1985/CHELLARAM AND OTHERS v. CHELLARAM AND OTHERS [1983 C. No.
5697] - [1985] Ch. 409
[1985] Ch. 409
[CHANCERY DIVISION]

CHELLARAM AND OTHERS v. CHELLARAM AND OTHERS [1983 C. No. 5697]

1984 June 14, 15, 18, 19, 20, 21, 22, 25; July 13
Scott J.
Trusts - Appointment of new trustees - Foreign settlements - Indian family settlements - Members of family
resident abroad - Trust assets in Bermuda - Trusts administered in England - Whether court having
discretionary jurisdiction to administer settlements
Practice - Stay of proceedings - Jurisdiction - Appointment of new trustees for foreign settlements - Trusts
administered in England - Whether defendants able to show England as forum non conveniens
In 1975 two Indians, who were almost certainly both domiciled in India at the relevant time and were
brothers, made discretionary settlements in favour of other members of the family, some of whom were
resident in India and others resided abroad. The settlements were drawn up in India by an Indian lawyer but
were worded in English and were in a form common for English discretionary settlements. After signature by
the settlors in Singapore and Lagos respectively, the two settlements were kept by solicitors in London. The
trust assets were shares held by the two settlors in Bermudan companies. The underlying assets were held
by a number of companies situated in many parts of the world, but all of them outside India. Two of the
original trustees were permanently resident in England, while the third, who unlike the others was a member
of the family, held a British passport, spent some months every year in England, and maintained a house in
London available for his use. However, the two non-family trustees were later replaced by other members of
the family in 1981. The present trustees (the defendants) were all born and domiciled in India, some resided
outside India, and all visited London with some regularity. The value of the trust assets was considerable but
no income or capital had ever been distributed to the beneficiaries. Such little administration as there had
been had been done in London.
By a writ dated 14 December 1983 the four plaintiffs, members of one branch of the family, sought, inter alia,
against the defendant trustees, the removal of the defendants as trustees and the appointment of new
trustees in their place.
On the defendants' motion for a stay of proceedings on the ground either that the English court had no
jurisdiction or power to remove and appoint trustees of foreign settlements or that the court in Bombay was
the forum conveniens: Held, (1) that, on the basis that the proper law of the trust was Indian, service of the writ had been effected
on the defendants in England and, therefore, the court had jurisdiction over each defendant in respect of the
issues raised in the writ; that the court had jurisdiction to administer a foreign trust, even where the trust
funds were outside the jurisdiction; that the court had power to administer such a trust by ordering its

Page 2

[1985] Ch. 409 Page 410

trustees to fulfil their obligations under the trust and power, if necessary, to remove the trustees and appoint
new trustees by orders in personam against the existing trustees requiring them to resign and to vest the
trust funds in the new trustees (post, pp. 425F - 426D, 427A-E, 428A-F, 432E - 433B).
(2) That, although the court had a discretion to decline jurisdiction, the defendants had failed to
show that the English court was a forum non conveniens and, therefore, the defendants'
application for a stay of proceedings would be dismissed (post, pp. 433G-H, 436G - 437C).

Ewing v. Orr Ewing (1883) 9 App.Cas. 34, H.L.(E.) applied.

Letterstedt v. Broers (1884) 9 App.Cas. 371, P.C., and The Abidin Daver [1984] A.C. 398, H.L.(E.)
considered.
The following cases are referred to in the judgment:
Abidin Daver, The [1984] A.C. 398; [1984] 2 W.L.R. 196; [1984] 1 All E.R. 470, H.L.(E.)
Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. [1984] A.C. 50; [1983] 3 W.L.R. 241;
[1983] 2 All E.R. 884, H.L.(E.)
Atlantic Star, The [1974] A.C. 436; [1973] 2 W.L.R. 795; [1973] 2 All E.R. 175, H.L.(E.)
Ewing v. Orr Ewing (1883) 9 App.Cas. 34, H.L.(E.)
Kehr, decd., In re [1952] Ch. 26; [1951] 2 All E.R. 812
Ker's Settlement Trusts, In re [1963] Ch. 553; [1963] 2 W.L.R. 1210; [1963] 1 All E.R. 801
Letterstedt v. Broers (1884) 9 App.Cas. 371, P.C.
MacShannon v. Rockware Glass Ltd. [1978] A.C. 795; [1978] 2 W.L.R. 362; [1978] 1 All E.R. 625,
H.L.(E.)
Marlborough (Duke of) v. Attorney-General [1945] Ch. 78; [1945] 1 All E.R. 165, C.A.
Pollak's Estate, In re [1937] T.P.D. 91
Trendtex Trading Corporation v. Crdit Suisse [1980] 3 All E.R. 721; [1980] 3 W.L.R. 367; [1980] Q.B.
629, C.A.

Page 3

Wilks, In re [1935] Ch. 645

The following additional cases were cited in argument:
Baroda (Maharanee of) v. Wildenstein [1972] 2 Q.B. 283; [1972] 2 W.L.R. 1077; [1972] 2 All E.R. 689,
C.A.
Bawtree v. Great North Western Central Railway Co. (1898) 14 T.L.R. 448, C.A.
Chamberlain v. Napier (1880) 15 Ch.D. 614
Colt Industries Inc. v. Sarlie [1966] 1 W.L.R. 440; [1966] 1 All E.R. 673, Lyell J. and C.A.
Cook Industries Inc. v. Galliher [1979] Ch. 439; [1978] 3 W.L.R. 637; [1978] 3 All E.R. 945
Courtney, In re, Ex parte Pollard (1838 to 1840). Mont. & C. 239
Ewing v. Orr Ewing (1885) 10 App.Cas. 453, H.L.(Sc.)
Forsyth v. Forsyth [1891] P. 363
Henderson v. Henderson [1967] P. 77
Iveagh v. Inland Revenue Commissioners [1954] Ch. 364; [1954] 2 W.L.R. 494; [1954] 1 All E.R. 609
Jones v. Jones (1894) 30 N.Y.S. 177
Paget's Settlement, In re [1965] 1 W.L.R. 1046; [1965] 1 All E.R. 58
Penn v. Lord Baltimore (1750) 1 Ves.Sen. 444
[1985] Ch. 409 Page 411
Perpetual Executors and Trustees Association of Australia Ltd. v. Roberts [1970] V.R. 732
Razelos v. Razelos (No. 2) [1970] 1 W.L.R. 392; [1970] 1 All E.R. 386
St. Pierre v. South American Stores (Gath & Chaves) Ltd. [1936] 1 K.B. 382, C.A.
Toller v. Carteret (1705) 2 Vern. 494
Weckstrom v. Hyson [1966] V.R. 277

Page 4

West (Richard) & Partners (Inverness) Ltd. v. Dick [1969] 2 Ch. 424; [1969] 2 W.L.R. 1190; [1969] 1 All
E.R. 943, C.A.
Motion
By a writ and statement of claim dated 14 December 1983, the plaintiffs, Harish Shewakram
Chellaram, his wife Radhika Chellaram, and his two sons Vishal Harish Chellaram and Ashwin
Harish Chellaram (minors), sought against the defendants, Lal Lokumal Chellaram, Sham Lokumal
Chellaram, Ram Tahilram Chellaram, Murli Tahilram Chellaram, Hotchand Gopaldas Advani,
Lokumal Kishinchand Chellaram, and Pishu Tahilram Chellaram, orders (1) that the defendants do
provide the plaintiffs with copies of, or alternatively permit them to inspect and take copies of, all
trust documents relating to (i) a settlement made by Mohan Shewakram (brother of the first plaintiff)
dated 14 February 1975 and (ii) a settlement made about February 1975 by the first plaintiff; (2) an
order that the defendants do provide the plaintiffs with full and proper accounts of both settlements
from the dates of their respective creations; (3) an order that the defendants do provide the
plaintiffs with, or procure the provision of, (i) accounts of Kayshewak (Bermuda) Ltd., Eskay
(Bermuda) Ltd., Kaycee (Bermuda) Ltd. and Chellsons (Bermuda) Ltd., (ii) minutes of general
meetings thereof, (iii) copies of directors' service contracts relating thereto and (iv) copies of
registers maintained by such companies, in each case from and after 14 February 1975; (4) an
order removing the defendants as trustees and appointing some fit and proper persons to be
trustees in their place, (5) further or other relief, and (6) costs.
By a notice of motion dated 11 January 1984, the defendants sought an order under R.S.C., Ord.
12, r. 8, and/or the inherent jurisdiction of the court that the writ be set aside; alternatively, that all
further proceedings in the action be stayed, on the grounds that the action was not a proper action
to be brought in the English courts, and was frivolous, vexatious and an abuse of the process of the
court.
At the hearing of the motion the defendants indicated that they did not now seek to have the writ set
aside, and that they only sought a stay so far as related to the prayer for the removal of trustees
and the appointment of new ones. As to the rest they contended that they had supplied the
documents sought or appropriate information, and did not challenge any right to additional
documents or information if the proceedings were to continue.
The facts are stated in the judgment.
Michael Miller Q.C. and Francis Barlow, for the defendants. Copies of the documents relating to the
settlements, and full and proper accounts of the companies, which the plaintiffs sought in their statement
[1985] Ch. 409 Page 412
of claim, have been supplied. There was never any basis for doubting, subject to jurisdiction, that the
plaintiffs were entitled to such relief. The jurisdiction being exercised by the court is in personam and such
relief is proper to be given if the circumstances justify it. But the jurisdiction to remove trustees is in rem.
Since both the settlements are Indian and are governed by Indian Law and none of the trust property is
situated within the jurisdiction, there is no jurisdiction to remove the trustees in this case.
The defendants contend, alternatively, that the court should not exercise any jurisdiction that it may have. An
order removing the trustees would be acting in rem, and it is doubtful if the Indian courts would recognise
such order. There is no sufficient nexus with this country to make the English court the forum conveniens.
Accordingly what the defendants seek is an order staying or striking out paragraph (4) of the relief sought,
namely the order removing the trustees and appointing fresh ones; see R.S.C., Ord. 12, r. 8(1)(g) and (h).

Page 5

The court has no jurisdiction to make such an order, and that claim should be struck out.
The settlements were drafted by an Indian lawyer, Mr. Advani, in Bombay, and executed in Singapore and in
Lagos. The settlors were both Indian by birth, and their domicile of origin was there. The present trustees are
all Indian born, though they are scattered around the world. As foreign settlements the proper law is Indian.
The form of settlement which was used does not point to any particular law as the proper law of the
settlements. English happens to be the language of the courts and of the legal system in India, and the form
would be appropriate equally in Singapore, Bermuda, Nigeria or Hong Kong.
The defendants contend that the situs of administration is irrelevant to the proper law. There is no evidence
of any acts of administration until 1981 - if there had been any such acts, London might well have been
chosen, just as for the appointment of new trustees. The present residence of the trustees is not relevant to
any point as to the proper law, but it may be relevant to questions of forum conveniens. Although all the
defendants may be found from time to time in London, that fact does not make the English court the
appropriate, as opposed to the convenient, court. There are other beneficiaries who are entitled to be before
the court and they mostly live in India. The English court should not act without being satisfied that the Indian
courts would recognise its orders. Such complications would not arise if the proceedings were in India.
Similar relief could be obtained under Indian Law, the procedure being similar. It is fairly slow - on the
plaintiffs' evidence - from 7 to 10 years, but interlocutory steps are available. The removal of trustees could
be sought by petition in India. [Reference was made to the Indian Trustee Act of 1882, sections 71, 73, and
74.] The English court has no jurisdiction, save in relation to trust property situated within the jurisdiction, and
in cases where English law is the proper law of the settlement. If the English court were to assert jurisdiction
there would be serious conflict with the Indian courts under section 71(d) of the Indian Trustee Act 1882.
[Reference was made to Duke of Marlborough
[1985] Ch. 409 Page 413
v. Attorney-General [1945] Ch. 78, 83, 85, 88, 89 as to the principles for ascertaining the proper law of the
settlements.]
Direct evidence as to the intention of the parties is not admissible, but it is relevant that they were prepared
by Mr. Advani, an Indian lawyer practising in Bombay. [Reference was made to Iveagh v. Inland Revenue
Commissioners [1954] Ch. 364, 368, 379 as to the relevant considerations, on the proper law questions.] It is
true that in that case the inference can be drawn that administrative acts were expected to be carried out in
London, but nevertheless, over all, the proper law must be taken to be the law of India. That being so, the
English court should not interfere to appoint trustees, thus acting in rem, bearing in mind that the trust
property is not within the jurisdiction. The only jurisdiction possessed by the English court in the present case
is an in personam one to require the trustees to comply with their duties under the proper law of the
settlements.
On the question of forum conveniens, see In re Ker's Settlement Trusts [1963] Ch. 553; Forsyth v. Forsyth
[1891] P. 363; In re Paget's Settlement [1965] 1 W.L.R. 1046; In re Kehr decd. [1952] Ch. 26; Amin Rasheed
Shipping Corporation v. Kuwait Insurance Co. [1984] A.C. 50; The Abidin Daver [1984] A.C. 396; The
Atlantic Star [1974] A.C. 436, 453, 454, 463, 475, 476 and MacShannon v. Rockware Glass Ltd. [1978] A.C.
795, 810, 812, 817, 818, 819, 822, 824, 825 to 829.
The conclusions to be drawn from the above authorities are that first the English court is not the natural
forum, since the settlements are governed by Indian law, and the beneficiaries are Indian all ordinarily
resident in India; secondly, the effectiveness of any order the English court might make is seriously in doubt;
would the Indian courts recognise an English order, as being the order of a competent court, and as
discharging the trustees from their obligations; and thirdly, how would the new trustees know that their status
was accepted by the Indian courts? The Indian Trustee Act 1882 cannot be regarded as conferring any
power on the English court. Any supposed superiority of the English court procedure is irrelevant if, as is

Page 6

contended by the defendants, the English court is the wrong court. Delay does arise in the Indian courts but
there can be interlocutory relief. [Reference was made to Dicey & Morris on The Conflict of Laws, 10th ed.
(1980), vol. 2, p. 683, rule 121.]
Michael Lyndon-Stanford Q.C. and Nicholas Warren, for the plaintiffs. The High Court has jurisdiction to
entertain any action in personam against any person within the jurisdiction, where the proceedings are either
served personally or service is accepted on their behalf by a solicitor. In the present case all the defendants
were either served personally or service was duly accepted on their behalf; see Maharanee of Baroda v.
Wildenstein [1972] 2 Q.B. 283 and Colt Industries Inc. v. Sarlie [1966] 1 W.L.R. 440 and Ewing v. Orr Ewing
(1885) 10 App.Cas. 453.
The court could order the defendants to execute a deed of retirement as trustees, and appoint other trustees
in their place. Such a deed of retirement and appointment of fresh trustees would be an effective instrument
under the terms of the settlements. The deed would be
[1985] Ch. 409 Page 414
the settlements. But the plaintiffs contend that it is not the proper law of the settlements which is relevant but
the law of the place of administration which governs such issues as the removal of trustees and the
appointment of new ones, and in the present case the place of administration is London. In Ewing v. Orr
Ewing, 9 App.Cas. 34, the House of Lords held that English courts had jurisdiction to administer the trusts of
the will of a testator who died domiciled in Scotland: see per the Earl of Selborne L.C. at pp. 39 et seq., and
per Lord Blackburn at pp. 45 et seq. This case shows that the courts do have jurisdiction to administer
foreign trusts, via in personam orders, even where there is no settled property in England. Where the courts
do so, presumably the law applied is English. In its "in personam" jurisdiction equity will go to great lengths. It
is not a valid criticism that its "in personam" orders are tantamount to an order in rem: Toller v. Carteret
(1705) 2 Vern. 494; Penn v. Lord Baltimore (1750) 1 Ves.Sen. 444; In re Courtney, Ex parte Pollard (1838 to
1840) Mont. & C. 239; Razelos v. Razelos (No. 2) [1970] 1 W.L.R. 392; Cook Industries Inc. v. Galliher
[1979] Ch. 439; Richard West & Partners (Inverness) v. Dick [1969] 2 Ch. 424 and Bawtree v. Great North
Western Central Railway Co. (1898) 14 T.L.R. 448.
If a foreign court made an order removing the trustees of an English settlement, the English courts would
recognise the order, even if the subject matter of the settlement was English land. [Reference was made to
Dicey & Morris on The Conflict of Laws, 10th ed., vol. 2, p. 1072, for rule 185 on the conclusiveness of
foreign judgments. Cases under the Variation of Trusts Act 1958, such as In re Ker's Settlement Trusts
[1963] Ch. 553 and In re Paget's Settlement [1965] 1 W.L.R. 1046, show that where an English court
assumes jurisdiction, it applies its own law as to administrative powers.] There is no evidence that either the
Indian courts or the Bermuda courts would not apply an order of the court in the present case. The principles
on which a court exercises its discretion to stay proceedings have been developed through the following
cases: St. Pierre v. South American Stores (Gath & Chaves) Ltd. [1936] 1 K.B. 382; Trendtex Trading
Corporation v. Credit Suisse [1980] 3 All E.R. 721; [1980] Q.B. 629 and [1982] A.C. 679; Robert Goff J.'s
judgment at first instance at pp. 733 to 735 is a distillation of the proper principles, as was acknowledged in
the House of Lords in that case; The Atlantic Star [1974] A.C. 436; MacShannon v. Rockware Glass Ltd.
[1978] A.C. 795; Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. [1984] A.C. 50 and The
Abidin Daver [1984] A.C. 398. The relative speed with which the case can be brought to trial in England is a
judicial advantage, and this would avoid the great delay there would be in the alternative jurisdiction in
Bombay.
With regard to the domicile of Harish, Henderson v. Henderson [1967] P. 77, 80, 81, shows that an intention
to return on an indefinite event does not prevent the acquisition of a domicile of choice and the displacement
of a domicile of origin.
In support of the contention that the settlements were intended to be administered here, the plaintiffs rely on

Page 7

(i) the form of settlement

[1985] Ch. 409 Page 415
adopted is English, although it was drawn by Mr. Advani, an Indian lawyer, in Bombay; (ii) the residence of
the original trustees was principally in England, two of them were permanently resident here; (iii) the
settlements refer to a trust corporation, an English expression, which would not be a term of art in Indian law,
and (iv) under the English Law of perpetuities, the settlement is valid.
Either the proper law of the settlement is English, not Indian, or at least the proper law for the administration
of the settlement is English. In Dicey & Morris on The Conflict of Laws 10th ed., vol. 2, p. 683, rule 121 states
that "The administration of a trust is governed (semble) by the law of its place of administration". In In re
Pollak's Estate [1937] T.D.P. 91 a testator domiciled in the Transvaal left movable property in England and
South Africa and elsewhere. He appointed an English bank as executor and left his estate for beneficiaries,
most of whom were domiciled in England. Although the will was governed by South African law, the court
held that the trust was intended to be administered in England; see also Perpetual Executors and Trustees
Association of Australia Ltd. v. Roberts [1970] V.R. 732. In that case the proper law was chosen by reference
to "the place where the trust was set up". It was also accepted in that case that there could be one proper
law for construing the settlement, and another proper law for the administration. In the present case the
trustees resided in England, the parties evidently contemplated that it would be administered in London, or at
least in accordance with the law of administration in England. Mr. Advani gave evidence that the purpose of
the settlements was to save Indian estate duty. There is also evidence that Lachmibai's gift to the
settlements was prompted by the same considerations. [Reference was made to Weckstrom v. Hyson [1966]
V.R. 277.]
To sum up, (i) if the proper law of the settlements is, as the plaintiffs contend, English law, then section 41 of
the Trustee Act 1925 would apply; (ii) if the basic proper law of the settlements is, on the other hand, Indian,
but the proper law of their administration is English law, then again section 41 would apply; (iii) if the proper
law of the settlements is Indian law, but the English court nevertheless assumes jurisdiction, then cases
under the Variation of Trusts Act 1958 show that the English court has powers to deal with matters, and thus
again section 41 would apply; (iv) alternatively, if the proper law is Indian law, and there is no English statute
law applicable, the court can nevertheless, under its inherent jurisdiction, make an in personam order against
the defendant trustees, and order that they be removed; (v) propositions (ii), (iii) and (iv) above apply
whether or not there are any trust assets in England.
[In further submissions on the proper law, reference was also made to Chamberlain v. Napier (1880) 15
Ch.D. 614 and Jones v. Jones (1894) 30 N.Y.S. 177.] The settlements were made by members of an
international family, carrying on an international business, which was controlled and administered from
London. Similarly trustees resident in England were chosen to administer the settlements here.
The burden of showing that there is some more appropriate jurisdiction than England rests upon the
defendants. It is not certain
[1985] Ch. 409 Page 416
that the Bombay court would even have jurisdiction. There is a conflict of evidence between the experts on
Indian law as to whether the Bombay court would itself have any jurisdiction; it is not certain that the Bombay
court would accept jurisdiction.
Indian law would not regard the Indian courts as having sole jurisdiction; they would recognise the English
court. The opinion expressed by the defendants' expert, Mr. Munim, is not firm. At least it has not been
clearly shown that the English court would not be recognised; see R.S.C., Ord. 12, r. 8.

Page 8

The present trustees reside in different parts of the world, viz Hong Kong, Nigeria and the Canary Islands,
but they all visit London. There is considerable advantage to the plaintiffs in suing in England, because of the
inordinate delays occurring in relation to litigation in Bombay, and the financial pressure on the plaintiffs, due
to the fact that no income is being received from the settlements although they were set up as long ago as
1975, and the payments which they formerly received ceased in May 1983, when the disputes first broke out.
Miller Q.C., in reply. It is obvious that an Indian court has jurisdiction to remove trustees of an Indian trust;
section 74 of the Indian Trustee Act 1882 does not contradict the expert evidence of Mr. Munim on the
residence of all the defendants. There is no apparent hostility by the trustees towards the plaintiffs. The
English court cannot exercise the statutory power given by section 74 of the Indian Trustee Act 1882. If an
order were made similar to that made in Penn v. Lord Baltimore, 1 Ves.Sen. 444, the foreign court would not
hold the transferor to the purported transfer of the trust property. If the English court accepts jurisdiction, it
should only apply Indian law. [References made to Perpetual Executors and Trustees Association of
Australia Ltd. [1970] V.R. 732 and Jones v. Jones, 30 N.Y.S. 177.] The order here being sought would
infringe the sovereignty and jurisdiction of Indian law. There is no authority that the English courts have any
power to appoint trustees of a foreign settlement; the courts of this country would never recognise an order
of a foreign court purporting to remove trustees of an English settlement, and the reason for this is that the
status of trustee is left to the courts of the proper law.
Cur. adv. vult.
13 July.SCOTT J. read the following judgment. The plaintiffs in this action are beneficiaries under certain
discretionary settlements of which the defendants are trustees. By specially endorsed writ dated 14
December 1983 the plaintiffs sought under paragraphs 1, 2 and 3 of the prayer, orders that the defendants
provide them with copies of all relevant trust documents, with trust accounts, with accounts of certain
companies with which the settlements are connected, and with copies of certain other documents. Under
paragraph 4 of the prayer the plaintiffs sought an order removing the defendants as trustees of the
settlements and appointing other trustees in their places.
By notice of motion dated 11 January 1984 the defendants sought an order that the writ be set aside or,
alternatively, that all further proceedings in the action be stayed on the grounds that the action was
[1985] Ch. 409 Page 417
not proper to be brought in this court and was frivolous, vexatious and an abuse of the process of the court.
That application is now before me.
Notwithstanding the wide terms of the relief sought by the notice of motion, Mr. Miller for the defendants
opened the application on the footing that he did not seek to have the writ set aside, and sought a stay of the
action only so far as the prayer for the removal of trustees and the appointment of new trustees was
concerned. As to the rest, the defendants take the position that since the date of the writ they have made
available to the plaintiffs copies of all trust accounts, and have supplied the plaintiffs with all available or
appropriate information: if the plaintiffs wish to continue the action in order to obtain additional documents or
information, or for the purposes of costs, the defendants will not argue against the plaintiffs' rights to do so.
They do, however, contend that the claim for their removal as trustees and for the appointment of others in
their places, should be stayed. This contention of the defendants is based on two alternative grounds. First, it
is submitted that the proper law of the settlement is the law of India and that this court has no jurisdiction or,
alternatively, no power to remove trustees of foreign settlements and to appoint new ones in their places.
Secondly, it is submitted that the issue between the plaintiffs and the defendants has no or no sufficient
connection with this country, that India is the forum conveniens in which the issue should be litigated, and, as
a matter of discretion, this court should decline to permit the issue to be litigated here.
Each of these contentions requires that I should carefully consider the circumstances relevant to the

Page 9

settlement and to this litigation. The litigation concerns the affairs and fortunes of the Chellaram family, a
well-known Bombay trading family. The family trading enterprise was started by the grandfather of the first
plaintiff, one Kishinchand Chellaram. He has been, for many years, deceased. He had three sons:
Shewakram, Lokumal and Tahilram. Since the surname of practically everyone involved in the present case
is Chellaram, I hope I will not be thought guilty of any discourtesy if for convenience I refer to the members of
the family simply by their respective given names.
Shewakram died in 1949 and was survived by his widow, Lachmibai, who is now 74 years of age.
Shewakram and Lachmibai had two sons: Mohan and Harish the first plaintiff. The second plaintiff, Radhika,
is the wife of Harish. They have two children, the third and fourth plaintiffs, both of whom are minors. Mohan
is unmarried. I have been told that his capacity to manage his own affairs may be open to doubt. Shewakram
and Lachmibai had also daughters who are now married.
Kishinchand's second son, Lokumal, is the sixth defendant. He is now 70 years of age. Lokumal has two
sons: namely, Lal and Sham, the first and second defendants.
Kishinchand's third son, Tahilram is now deceased. Tahilram had three sons: namely, Murli the fourth
defendant, Pishu the seventh defendant and Ram, the third defendant.
Following the death of Kishinchand, the family trading business was carried on by his three sons.
Shewakram, for a time, left the family business but subsequently returned to it. The business consisted, as to
[1985] Ch. 409 Page 418
part, of trading enterprises carried on within India and, as to part, of trading enterprises carried on outside
India. The trading business outside India was carried on in a large number of countries, mainly in the Far
East and in West Africa, and generally in each of these countries through the medium of an operating
company incorporated under the laws of the country in question. The shares of the several operating
companies were held by a Bermudan holding company, Kaycee (Bermuda) Ltd. There has been no evidence
before me as to the manner in which the trading enterprise in India was organised.
At the time of his death, Shewakram held a 30 per cent. interest in the Bermudan holding company, and
thereby in the family trading enterprises outside India. This 30 per cent. interest was, on his death, inherited
by his widow, Lachmibai. In 1973 the Chellaram family, following some years of discussions, decided to
effect a separation of the trading interests of the Lokumal branch of the family from those of the Tahilram
branch of the family. Accordingly, a new Bermudan company was incorporated, Chellsons (Bermuda) Ltd.
("Chellsons"). Kaycee (Bermuda) Ltd. ("Kaycee") was to own the operating companies of the Lokumal
branch; Chellsons was to own the operating companies of the Tahilram branch. Lachmibai decided to retain
her 30 per cent. interest in both holding companies. Accordingly, after the division and reorganisation had
been effected, Kaycee was owned as to 70 per cent. by Lal and Sham and as to 30 per cent. by Lachmibai:
Chellsons was owned as to 70 per cent. by Murli, Pishu and Ram, and as to 30 per cent. by Lachmibai.
At about the same time as this division and reorganisation was finally effected, Lachmibai gave her 30 per
cent. interest to her two sons, Mohan and Harish. I am not clear whether or not this gift was made before or
after the division. Nothing, however, turns on this. They each became absolutely entitled to a 15 per cent.
shareholding in Kaycee and a 15 per cent. shareholding in Chellsons.
At this stage I should describe in a little more detail the location of some of the operating companies. In
Singapore there was a Chellsons operating company, K. Chellaram and Sons (Far East) Ltd. This company
had also a branch in Kuala Lumpur. In Hong Kong there were two Kaycee companies and one Chellsons
company. Both Kaycee and Chellsons had operating companies in Nigeria. Kaycee had companies in Ghana

Page 10

and Sieria Leone. Chellsons had companies in Gambia, Upper Volta and Niger. Both had companies in
Spain and Gibraltar. Both also had companies in London incorporated under the Companies Act 1948. The
Kaycee London company was K. Lokumal and Sons (London) Ltd. The Chellsons London company was K.
Chellaram and Sons (London) Ltd. These London companies served a rather different function from that
served by the other operating companies. They were used for providing financial and administrative services
to the other members of their respective groups. London served, to some extent, as a post office through
which material which needed to be distributed among the group would be sent for that purpose. These were
the groups owned by the Bermudan holding companies in which Harish and Mohan held their shares.
[1985] Ch. 409 Page 419
On 14 February 1975 Mohan and Harish each made a discretionary settlement of his shares in Kaycee and
Chellsons. These settlements were made on the advice of the fifth defendant, Mr. Advani. Mr. Advani is an
eminent lawyer practising in Bombay. He was described to me by Mr. Miller as the doyen of the Bombay bar.
He drafted these two settlements. They are in identical terms, save for the class of beneficiaries, and are
broadly in terms with which any practitioner at the Chancery bar in England would be familiar. Each
settlement was made between the settlor of the one part and three trustees of the other part. The three
trustees were Ram Chellaram, a Mr. K. Rupchand and a Mr. G. R. Bharwani. In Harish's settlement the class
of beneficiaries was described as comprising the following: his mother, Lachmibai; his wife, Radhika; his two
children; his brother, Mohan; the wife and any children of Mohan; the children and remoter issue of the father
and mother of the settlor; the spouses of any of those persons, and the spouses of any adopted child of the
settlor. There were, however, expressly excluded from the class of beneficiary, the settlor, the spouse of the
settlor and the husbands of any female issue of Lachmibai.
The class of beneficiaries under Mohan's settlement is the same, save that Mohan is excluded and Harish is
included. Accordingly, Harish and Radhika are beneficiaries under Mohan's settlement; Mohan is a
beneficiary under Harish's settlement; Lachmibai and Harish's two children are beneficiaries under both
settlements. In addition, Mohan and Harish's sisters are beneficiaries under both settlements.
The settlements confer on the trustees wide powers to apply income or capital for the benefit of any of the
relevant class of beneficiaries, and in each there is an ultimate trust for the issue of the settlor. Each
settlement contains, in addition, the following relevant provisions: (1) a very wide power of investment of trust
money authorising investment in, inter alia: "property of whatsoever nature and wheresoever situated"; (2) a
charging clause for: "any trustee who may be a trust corporation, accountant, and who is a barrister-at-law";
(3) a power for the trustees by deed to declare that the settlement shall:

"take effect in accordance with the law of some other place in any part of the world and that the forum for the
administration hereof shall thenceforth be the laws of that place."

Finally, (4) a power of appointment of new trustees vested in: "the trustees or the executors or administrators
or the liquidator of the last surviving trustee."
In Harish's settlement, his address is given as 102, High Street Singapore, and the settlement was signed by
him in Singapore. In Mohan's settlement, his address is given as 54, Marina, Lagos, and the settlement was
signed by him in Lagos. In neither settlement is any address given for any of the three trustees. However,
both Mr. Rupchand and Mr. Bharwani were, at the date of the settlements, permanently resident in London.
Mr. Rupchand was chairman and Mr. Bharwani was a director of K. Chellaram and Sons (London) Ltd. the
Chellsons London company.
[1985] Ch. 409 Page 420
There is some dispute between the parties as to the residence at the time of the settlements of the third

Page 11

trustee, Ram. In his affidavit he deposes to a residence in Las Palmas, Canary Islands, since 1974.
However, it is common ground that he or the Chellsons London company maintained - and still maintains - a
house in London available for his use, and that he has always spent some months in London each year.
Moreover, Ram held, at the date of the settlement, a British passport issued in London on 27 September
1972, in which his country of residence is given as England. There is evidence that the settlement signed by
Harish was returned by him, duly signed, to Mr. Advani. It is a fair inference that it was then taken or sent by
Mr. Advani to London and there signed by the three trustees. I infer that the same process was followed in
the case of Mohan's settlement.
It appears from the evidence that the two settlements were kept in London in the custody of Norton, Rose,
Botterell and Roche, solicitors. Each settlement purported to settle the shares of the settlor in Kaycee and in
Chellsons. The share certificates relating to these shares were at all material times held in Bermuda by
Bermudan solicitors, Conyers, Dill and Pearman, who acted for the Chellaram family in connection with the
Bermudan company affairs. By letter dated 25 March 1975 addressed to Conyers, Dill and Pearman, and
written from London, Harish enclosed a copy of his discretionary settlement and a copy of Mohan's
discretionary settlement, but requested that the shares be allowed to remain for the time being registered in
the names of himself and Mohan respectively. He concluded by saying that when it was desired that the
shares should be transferred into the names of the trustees of the settlement, Conyers, Dill and Pearman
would be so informed. It is not so stated in the evidence, but I infer that this letter, like the settlements, was
drafted by Mr. Advani. Accordingly, the trust shares remained vested in the respective settlors.
However, on 22 October 1976 a new Bermudan holding company, Eskay (Bermuda) Ltd. ("Eskay 1"), was
incorporated by Conyers, Dill and Pearman, with an issued share capital of 180,000 shares of BD$2.40
each. Of these, 89,998 were transferred to Mohan, and 89,997 to Harish. The five remaining shares were
held by partners or employees of Conyers, Dill and Pearman, in order to comply with Bermudan law, in trust
for the trustees of the two settlements. The holdings of Mohan and of Harish in Kaycee and Chellsons were
transferred to Eskay 1. In order to document that the new shares in Eskay 1 were subject to the trusts of the
settlements, Mohan signed two letters addressed to the trustees of his settlement: one letter referred to his
Kaycee shares; the other to his Chellsons shares. By each letter, Mohan confirmed:
"the shares of Eskay are trust property and that those shares of Eskay registered in my name are being held by me for
the trustees of the settlement."

These two letters were signed by Mohan in London before a notary public on 29 March 1977. Two similar
letters to the trustees were signed by Harish in Singapore before a notary public on 24 March 1977. By two
letters dated 7 June 1978, one addressed to the trustees of Mohan's
[1985] Ch. 409 Page 421
settlement, and the other addressed to the trustees of Harish's settlement, Mr. Rupchand and Mr. Bharwani
purported to resign their respective trusteeships. These letters purported to be written from 16/26, Banner
Street, London E.C.1, the offices of the Chellsons London company. To whom they were actually sent is
uncertain. They appear to have been left in the custody of Norton, Rose, Botterell and Roche in London.
Since no new trustees were appointed in place of the two retiring trustees, it is not clear whether the
retirements were of any legal effect. However, effective deeds of retirement and appointment of trustees
were made dated 12 May 1981. The parties thereto were Mr. Rupchand and Mr. Bharwani of the first part,
Ram of the second part, and Lal, Sham, Murli and Mr. Advani of the third part.
By one of these deeds Lal, Sham, Murli and Mr. Advani were appointed trustees of Harish's settlement jointly
with Ram, and in place of Mr. Rupchand and Mr. Bharwani. By the other deed, the same appointment was
made in respect of Mohan's settlement. Each of the deeds was executed by the parties thereto in London
and was then sewn up in the settlement to which it related and kept by Norton, Rose, Botterell and Roche in
London.

Page 12

There is in evidence before me a document dated 27 March 1981 signed by Harish and witnessed by Mr.
Advani, in which Harish purported to transfer to the trustees of his settlement the 89,997 shares in Eskay 1
which stood in his name. Presumably, Mohan signed a similar document. There is, however, no evidence as
to whether or not the shares were then formally registered in the names of the trustees.
Later during 1981 an important company reconstruction took place. The background to this was the desire by
the Lokumal and Tahilram branches of the family that each should conduct its overseas trading business
without any participation therein by the other. This had been achieved in the main by the Kaycee/Chellsons
division effected in 1973. However, the settlement trustees held, through Eskay 1, interests both in Kaycee
and in Chellsons, and the settlement trustees included both Lokumal representatives, namely, Lal and Sham,
as well as Chellsons representatives, namely, Ram and Murli. It was desired to remove this fiduciary
participation by Lokumal trustees in Chellsons affairs and by Tahilram trustees in the affairs of Kaycee. In
addition, the decision was reached, although by whom and in what circumstances is not clear, that the
settlement holdings in Kaycee and Chellsons respectively should be represented by a different class of share
from the shares held by the Lokumal or Tahilram shareholders, as the case may be. So, the following steps
were taken:
(1) On 9 June 1981 Kaycee and Chellsons each held a special general meeting converting
the shares held by Eskay 1 into B shares with a minimum guaranteed and preferential dividend
of 6 per cent., and with restricted voting rights. The meetings were held in Bermuda. At each
company meeting the chairman, Sir Bayard Dill, a partner in Conyers, Dill and Pearman, held
the proxy from Eskay 1. The proxy forms had been signed by Mr. John Ellison, another partner
in Conyers, Dill and Pearman, as a director of Eskay 1, and by Mr. Younie, also a partner in
that firm, as assistant secretary of Eskay 1. The evidence before me does
[1985] Ch. 409 Page 422
not reveal in what manner the approval of the settlement trustees to this conversion of the trust
shares into the B shares was obtained, or how that approval was communicated to Conyers,
Dill and Pearman.
(2)

Eskay 1 was put into liquidation.

(3) On 26 June 1981 two new Bermudan companies were formed: Eskay "K" (Bermuda) Ltd.,
which subsequently became Kayshewak Ltd. ("Kayshewak"), and Eskay "C" (Bermuda) Ltd.,
which subsequently became Eskay (Bermuda) Ltd. ("Eskay 2"). Each company had an issued
share capital of 150,000 shares of 1 each. In the case of Kayshewak, 149,995 of the issued
shares were allotted to the trustees of the two settlements, and in the case of Eskay 2, 149,995
shares were allotted to a nominee Bermudan company, Pembroke Ltd., to hold for the trustees.
The remaining shares in each of the two companies were allotted to individual members of
Conyers, Dill and Pearman, upon trust, I infer, for the trustees of the settlements. The
consideration for the allotment of the Kayshewak shares was the Kaycee shares held by Eskay
1. The consideration for the allotment of the Eskay 2 shares was the Chellsons shares held by
Eskay 1.
(4) By deeds of appropriation and appointment dated 24 May 1982, supplemental to Harish's
settlement, first, two funds were constituted: an "A" fund comprising the settlement's
Kayshewak shares, and a "B" fund comprising the settlement's Eskay 2 shares. Second, the
Tahilram trustees, that is, Ram and Murli, and also Mr. Advani, retired as trustees of the
Kayshewak shares and Lokumal was appointed in their place. So Lal, Sham and Lokumal
became trustees of the Kayshewak shares, Kayshewak being the company which held the
shares in Kaycee. Third, the Lokumal trustees, that is Lal and Sham, retired as trustees of the

Page 13

"B" fund and Pishu was appointed in their place. So Ram, Murli, Pishu and Mr. Advani became
trustees of the Eskay 2 shares, Eskay 2 being the company which held the shares in
Chellsons.
A deed of the same date between the same parties and to the same effect was made supplemental to
Mohan's settlement. Both these deeds were drawn up by Norton, Rose, Botterell and Roche in London, and
were executed by the respective parties, thereto in London. These deeds were kept in London by Norton,
Rose, Botterell and Roche.
In summary, by the process I have mentioned, each settlement held Kayshewak shares of which the trustees
were the first, second and sixth defendants, and Eskay 2 shares, of which the trustees were the third fourth,
fifth and seventh defendants. Kayshewak held B class shares in Kaycee, representing 30 per cent. of its
issue share capital. Eskay 2 held B class shares in Chellsons, representing 30 per cent. of the issued share
capital of that company. There are no other trust assets.
The plaintiffs have two particular complaints arising out of the reorganisation to which I have referred. First,
complaint is made of the acceptance of the B class non-voting shares in substitution for the ordinary shares
previously held. The trustees, it is said, ought never to have agreed to this. Secondly, it is said that the
reorganisation involved the family trustees - that is to say, all the trustees bar Mr. Advani - being placed in a
position in which they had conflicting interests and
[1985] Ch. 409 Page 423
duties. I need not, for the purposes of this application, further consider these complaints; but they represent
some of the matters which the court may have to consider if the action proceeds.
Accounts of Kaycee and of Chellsons have recently been supplied to the plaintiffs and are in evidence.
Kaycee's balance sheet, as at 30 June 1983, shows it as having a net worth of 4,246,699. Chellsons
balance sheet as at 30 June 1982 shows it as having a net worth of 2,849,866. These accounts, however,
are not consolidated accounts, and each company is simply a holding company. It is possible that
consolidated accounts may show a different picture. However, these are the companies in each of which the
settlements hold a 30 per cent. interest and, on any basis, the settled assets are substantial in worth.
It is, therefore, a matter of some surprise to discover that the settlements have not, from the date on which
they were made to the present time, received any income whatever from these assets. So far as appears
from the evidence before me, in the period up to the incorporation of Eskay 1, no dividend was ever paid by
Kaycee or Chellsons to Mohan or to Harish. After the incorporation of Eskay 1, Eskay 1 received no such
dividends. Since the reorganisation in 1981, Kayshewak and Eskay 2 have respectively received the
minimum 6 per cent. dividend from Kaycee and Chellsons, but neither Kayshewak nor Eskay 2 has ever
declared a dividend, so no income has ever been received by the trustees of the settlements. It follows that
no distribution of trust income or trust capital to any of the beneficiaries under the settlements has ever been
made.
Having thus reviewed the settlements and their history, I should now return to the individual members of the
Chellaram family. Their respective circumstances are relevant both to a consideration of what is the proper
law of the settlements, and also to Mr. Miller's forum conveniens argument.
Mohan is Indian by birth and domicile. At the date of the settlements he was resident in Lagos. He is now,
and has for some time, been resident in Bombay.

Page 14

Harish is also Indian by birth. He has a domicile of origin in India. In 1972, or thereabouts, he went with his
wife and children to live in Singapore and manage the Singapore company, K. Chellaram and Sons (Far
East) Ltd. In order to do so, he was required under Singaporean law to bring into Singapore a substantial
capital sum and to acquire the status of a permanent resident. He did both. He has since retained that status.
Both he and his wife, Radhika, have deposed that on moving to Singapore they had no intention of ever
returning to live in India and had acquired a Singaporean domicile at the time the settlements were made. No
cross-examination has taken place of them or of any other deponent, notwithstanding a number of disputes
of fact which appear from the affidavits. I bear that in mind, but nevertheless, addressing myself to the
objective facts, I am unable to conclude that Harish has lost his domicile of origin, let alone that he had lost it
by 14 February 1975. He has always held an Indian passport. I have seen copies of his passport issued in
1973, and of his current passport which was issued in 1980. In both his domicile is given as India. In both he
gives, as his
[1985] Ch. 409 Page 424
permanent address in India, his mother's Bombay address at which, it is common ground, rooms are
permanently available for his and his family's occupation. His wife's successive passports and his children's
passports likewise claim an Indian domicile with a permanent address in India at the home of Lachmibai. The
family regularly visit Bombay. I do not see any prospect that Harish, in the face of these facts, could establish
that he had abandoned his Indian domicile of origin. The evidence, in my view, shows that when he made his
settlement he was domiciled in India.
Lachmibai is, and has always been, domiciled in India and resident in Bombay. The sisters of Harish and
Mohan are beneficiaries under the settlements; they all live in India.
I now come to the trustees. I have already described the residence of the original trustees at the date of the
settlements. The present trustees are scattered around the world. They are all Indian born and domiciled in
India. Lokumal is resident in India; Lal is resident in Hong Kong; Sham is resident in Lagos. Of the Tahilram
family, Ram is resident in Las Palmas; Pishu is resident in India, Murli is resident part of the time in Bombay
and partly in West Africa. All of the Chellarams appear to have London addresses, houses where they or
their respective families stay when in England. These houses stand in the names of their respective London
companies. They all appear to visit England with some regularity.
Mr. Advani, the only non-family trustee, practises law in Bombay but visits England regularly, usually in May
of each year.
The bedrock of Mr. Miller's case is that these two settlements are foreign settlements, the proper law of
which is the law of India. Mr. Lyndon-Stanford contends, on the contrary, that the proper law is the law of
England.
It is important to be clear at the outset as to the relevance of this issue on the present application. The
application seeks to prevent the plaintiffs from prosecuting in England a claim for the removal of the trustees
and for the appointment of new trustees. Mr. Miller argues that the law by which the proposition that the
trustees should be removed must be tested, and by which the question of who should be appointed in their
places must be answered, is the proper law of the settlement. Mr. Lyndon-Stanford submits, however, that it
is not the proper law of the settlement, but the law of the place of administration that should govern such
issues as removal of trustees and appointment of new ones. The place of administration, he submits, is
London.
The proper law of the settlement is, per Lord Greene M.R. in Duke of Marlborough v. Attorney-General
[1945] Ch. 78, 83, the law which governs the settlement. He continued:

Page 15

"This law can only be the law by reference to which the settlement was made and which was intended by the parties to
govern their rights and liabilities."

In Dicey & Morris, Conflict of Laws, 10th ed. (1980), vol. 2, p. 678, rule 120 states: "The validity, the
interpretation and the effect of an
[1985] Ch. 409 Page 425
inter vivos trust of moveables are governed by its proper law ..." Rule 120 identifies the proper law of the
settlement as:
"in the absence of an express or implied selection of the proper law by the settlor, the system of law with which the trust
has its closest and most real connection."

When Mr. Miller first opened the case to me, I was strongly inclined to regard the law of India as the obvious
proper law of these two settlements, but as argument progressed I found myself progressively less certain.
The beneficiaries are an Indian family. The trustees were all Indian in origin although one or other may have
held a British passport. The settlements were drawn up in Bombay by Mr. Advani, an Indian practitioner,
acting apparently in the course of his profession. The settlors were Indian in origin and Indian domiciled at
the date of the settlement. All these factors point - and I think point strongly - to the law of India being the
proper law.
Mr. Advani has sworn an affirmation in which he has stated in terms that he intended Indian law to apply to
these settlements which he drafted. This evidence is inadmissible as evidence of the intentions of the parties
to the settlements, but I may, I think, take it as indicating that the settlements are appropriate in form for the
purposes of Indian law. Nevertheless, I am left with doubts. The trust property was Bermudan. The
underlying assets, in the form of the operating companies, were all situated outside India. The purpose of the
settlements was, it seems, in part to escape Indian taxation and, in part, to escape Indian exchange control
regulations. But most important of all, it seems to me, is the identity of the three original trustees. Two, Mr.
Rupchand and Mr. Bharwani, were permanently resident in England. The third, Ram was the member of the
family who, in 1975, appeared to have the closest connection with England. The inference is inescapable
that the parties to the settlements contemplated that administration thereof would take place in London.
Indeed, Mr. Miller accepted that this was an inference which was open to be drawn.
The question why, if the parties intended the settlements to be governed by Indian law they should have
arranged for an English administration, is a difficult one to answer. The parties' contemplation of an English
administration seems to me to point strongly in favour of an English proper law. For the moment, however, I
propose to leave the question open and to assume that Mr. Miller is right that the law of India is the proper
law of the settlement and to see where that leads. It leads, Mr. Miller submitted, to the conclusion that the
English courts should have nothing to do with the plaintiffs' claim for the removal of the trustees. You cannot
have, he said, English courts removing foreign trustees of foreign settlements any more than you can have
foreign courts removing English trustees of English settlements. Tied up in this cri de coeur are, in my view,
three separate points. First, there is the question of jurisdiction. Does an English court have jurisdiction to
entertain such a claim? Second, there is the question of power. If an English court does have jurisdiction,
can it make an effective order removing foreign trustees of foreign settlements? Third, there is the
[1985] Ch. 409 Page 426
forum conveniens point. Is this an action which an English court ought to be trying?
I start with jurisdiction. In a sense, there is no doubt at all but that the court has jurisdiction. Each of the
defendants was either served personally or service was effected on Norton, Rose, Botterell and Roche who
had authority to accept service. No question arises as to the application of R.S.C., Ord. 11. By reason of due

Page 16

service of the writ, the court has jurisdiction over each of the defendants in respect of each of the issues
raised by the writ.
As to subject matter, also there is in my judgment no doubt that the court has jurisdiction. In Ewing v. Orr
Ewing (1883) 9 App.Cas. 34 it was held by the House of Lords that the English courts had jurisdiction to
administer the trusts of the will of a testator who died domiciled in Scotland. The will was proved in Scotland
by executors, some of whom resided in Scotland and some in England. The assets, the subject of the trusts,
consisted mainly of hereditable and personal property in Scotland. An infant beneficiary resident in England
brought an action in England for the administration of the trusts of the will by the English courts. It was clear
that the proper law of the trusts was the law of Scotland. Nonetheless, the House of Lords, affirming the
Court of Appeal, upheld the jurisdiction of the English courts. The Earl of Selborne L.C. said, at pp. 40-41:
"the jurisdiction of the English court is established upon elementary principles. The courts of equity in England are, and
always have been, courts of conscience, operating in personam and not in rem; and in the exercise of this personal
jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which
were not either locally or ratione domicilii within their jurisdiction. They have done so as to land, in Scotland, in Ireland,
in the colonies, and in foreign countries:... A jurisdiction against trustees which is not excluded ratione legis rei sitae as
to land, cannot be excluded as to moveables, because the author of the trust may have had a foreign domicil; and for
this purpose it makes no difference whether the trust is constituted inter vivos, or by a will, or mortis causa deed."

Lord Blackburn agreed, at pp. 45-46:

"It was argued that the domicil of the testator being Scotch, the court of Chancery had no jurisdiction at all; that the
jurisdiction depended on the domicil of the testator, or at least on the probate in England, and was therefore confined to
the comparatively small part of the property that was obtained by means of the English probate. I do not think that there
is either principle or authority for this contention. The jurisdiction of the court of Chancery is in personam. It acts upon
the person whom it finds within its jurisdiction and compels him to perform the duty which he owes to the plaintiff."

Both Lord Selborne L.C. and Lord Blackburn went on to say that the jurisdiction of the court to administer the
foreign trust was not truly
[1985] Ch. 409 Page 427
discretionary, and that the plaintiff was entitled to the order sought ex debito justitiae: see pp. 41-42 and
47-48.
That view cannot, in my judgment, stand with more recent pronouncements in the House of Lords: see, for
example, Lord Diplock in The Abidin Daver [1984] A.C. 398, 410, 411. Current authority establishes that the
court does have a discretion to decline jurisdiction on forum conveniens or forum non conveniens grounds.
But the principle that the English court has jurisdiction to administer the trusts of foreign settlements remains
unshaken. The jurisdiction is in personam, is exercised against the trustees on whom the foreign trust
obligations lie, and is exercised so as to enforce against the trustees the obligations which bind their
conscience.
The jurisdiction which I hold the court enjoys embraces, in my view, jurisdiction to remove trustees and
appoint new ones. In Letterstedt v. Broers (1884) 9 App.Cas. 371, Lord Blackburn, giving the judgment of the
Privy Council in a case on appeal from the Supreme Court of the then colony of the Cape of Good Hope,
referred, at p. 385, to a passage in Story's Equity Jurisprudence, at p. 1289, which reads: "Courts of equity
have no difficulty in interposing to remove trustees who have abused their trust." Lord Blackburn then
continued, at p. 386:
"It seems to their Lordships that the jurisdiction which a court of equity has no difficulty in exercising under the
circumstances indicated by Story, is merely ancillary to its principal duty, to see that the trusts are properly executed."

Page 17

Accordingly, in my judgment, the courts of this country having jurisdiction to administer the trusts of the two
settlements have jurisdiction ancillary thereto to remove the trustees.
Mr. Miller's argument that the court did not have jurisdiction to remove the trustees of a foreign settlement
was based in part on the proposition that an order of removal would be ineffective to divest the present
trustees of the fiduciary duties they owed under the proper law of the settlements. To some extent, this
submission was based on the form of the relief sought by the writ. Paragraph 4 seeks:
"An order removing the defendants as trustees of Mohan's settlement and Harish's settlement, and appointing some fit
and proper persons to be trustees in their place."

An order in that form would not of itself, however, divest existing trustees and vest trust property in new
trustees. Consequently, such an order would usually be accompanied by a vesting order under section 44 in the case of land - or section 51 - in the case of stocks and shares - of the Trustee Act 1925. It could not, in
my opinion, sensibly be suggested - and Mr. Lyndon-Stanford has not suggested - that a vesting order under
section 51 could divest the defendants of the trust shares in the Bermudan holding companies or could vest
those shares in new trustees. A vesting effect could be achieved by a vesting order only in respect of stocks
and shares situated within the territorial jurisdiction of the court. Further, so long as the trust shares remain
vested in the defendant trustees their fiduciary obligations in respect thereof must
[1985] Ch. 409 Page 428
remain. So, Mr. Miller submitted, the court lacks the power to grant the relief sought by paragraph 4 of the
writ.
This argument is, in my judgment, based upon a point of form and not of substance. The jurisdiction of the
court to administer trusts to which the jurisdiction to remove trustees and appoint new ones is ancillary, is an
in personam jurisdiction. In the exercise of it, the court will inquire what personal obligations are binding upon
the trustees and will enforce those obligations. If the obligations are owed in respect of trust assets abroad,
the enforcement will be, and can only be, by in personam orders made against the trustees. The trustees can
be ordered to pay, to sell, to buy, to invest, whatever may be necessary to give effect to the rights of the
beneficiaries, which are binding on them. If the court is satisfied that in order to give effect to or to protect the
rights of the beneficiaries, trustees ought to be replaced by others, I can see no reason in principle why the
court should not make in personam orders against the trustees requiring them to resign and to vest the trust
assets in the new trustees. The power of the court to remove trustees and to appoint new ones owes its
origin to an inherent jurisdiction and not to statute, and it must follow that the court has power to make such
in personam orders as may be necessary to achieve the vesting of the trust assets in the new trustees. This
is so, in my judgment, whether or not the trust assets are situated in England, and whether or not the proper
law of the trusts in question is English law. It requires only that the individual trustee should be subject to the
jurisdiction of the English courts. It does not matter, in my view, whether they have become subject to the
jurisdiction by reason of service of process in England or because they have submitted to the jurisdiction, or
because under R.S.C., Ord. 11 the court has assumed jurisdiction. In every case, orders in personam are
made by the courts on the footing that those against whom they are made will obey them.
Accordingly, and for these reasons, I do not accept Mr. Miller's submission that the English courts have no
power to remove the defendants as trustees of these two settlements. Since, however, such removal would
have to be effected by in personam orders, the plaintiffs have put before me an amended statement of claim
which seeks such orders. In my judgment, the court would have power, if it thought it right to do so, to make
those orders.

Page 18

There are two other associated points which I should now deal with. As an adjunct to his submission that the
English courts lack the power to remove trustees of foreign settlements, Mr. Miller submitted that if such an
order in the in personam form were made the defendants could not safely obey the order without first
obtaining confirmation from the Indian courts that it would be proper for them to do so. Further, he submitted,
his client ought not to be subjected to such an order unless it were clear that Indian law would regard them, if
they did obey, as discharged from their fiduciary obligations under the settlements.
It would be a matter entirely for the defendants and their advisers what steps they take in the Indian courts,
but for my part I am not impressed by the proposition that such confirmation would be necessary. The
English courts have jurisdiction over these defendants. An objection
[1985] Ch. 409 Page 429
to the exercise of jurisdiction on forum conveniens grounds has been taken and I must deal with it, but if in
the end the case continues in England, I would expect that the Indian courts, for reasons of comity, would
afford the same respect to orders of this court as in like circumstances and for the same reasons English
courts would afford to theirs.
Mr. Miller suggested to me that I would give short shrift to an order of a foreign court removing a trustee of an
English trust; but if the English trustee had been subject to the jurisdiction of the foreign court exercised in
like circumstances to those in which English courts claim and exercise jurisdiction, I can see no reason why I
should recoil from an order in personam made by the foreign court against an English trustee. And if the
order had been given effect to by, for example, the trustee transferring trust assets in England into the
names of new trustees, I can see no reason why an English court should question the efficacy of the
transfer. All of this assumes, of course, that there were no vitiating features in the manner in which the
foreign order was obtained.
As to the point that the defendants might, notwithstanding that they had transferred the Bermudan shares to
new trustees, still owe fiduciary duties under the settlements, there is, in my view, no substance in that point.
First, no party to the English action could so contend. Mohan and Lachmibai are not parties to the action but
could easily be joined, as also could any of the sisters who wished to be joined. This does not therefore
seem to me to be a practical problem.
Secondly, the point could be raised as a defence to the plaintiffs' claim for the removal of trustees, and, if the
court were satisfied that the point was a sound one, I cannot imagine that the defendants would be ordered
to transfer the shares.
Thirdly, the status of trustee and the burden of the fiduciary obligations arising therefrom, have, as it seems
to me, no reality except in relation to assets which are vested in or under the control of the trustee. If a
trustee is divested of the trust assets, I do not understand how it can be supposed that he can retain any
fiduciary obligation thereafter in respect of those assets or in respect of the income derived from them.
I do not, therefore, think there is anything in Mr. Miller's objections to the efficacy of the in personam orders,
if such orders were made.
I have dealt with Mr. Miller's submissions on jurisdiction and on the power of an English court to make the
orders sought on the footing that Indian law is the proper law of the settlements. As an adjunct to his
arguments on those matters, Mr. Miller submitted that if Indian law was the proper law of the settlements,
then Indian law was the system of law which ought to be applied to the matter of removal of trustees of the
settlements, and to the appointment of new ones. He drew my attention to the relevant provisions of the
Indian Trusts Act 1882 as amended up to 1969 and commented, rightly in my opinion, that the various

Page 19

provisions in that Act relevant to the removal and appointment of trustees by the Indian court could not be
applied by an English court in the present case.
[1985] Ch. 409 Page 430
Mr. Miller wielded this point as part of his argument on jurisdiction and also as relevant to his forum
conveniens point. Mr. Lyndon-Stanford has contended that the proper law of the settlement is English law
but he has submitted that even if that is wrong, England is the place where the trusts were intended to be
administered and the place where, in fact, the trusts have been administered; that the administration of a
trust is governed not by the proper law of the trust but by the law of the place where administration takes
place; and that the removal of trustees and the appointment of new ones is a matter of administration. It is a
feature of the history of these settlements that there has been remarkably little administration. The reason for
this is that the trust property has been represented simply by shares in Bermudan holding companies, and
no trust income has been derived therefrom. Until recently, when in response to the plaintiffs' demand trust
accounts were prepared, there were no such accounts. However, Mr. Lyndon-Stanford is, in my view, right in
pointing out that such administration as there has been has taken place in London. It was in London that the
deeds of retirement and appointment of new trustees were prepared and executed; such legal advice as has
been taken by the trustees seems to have been taken by Mr. Advani from Norton, Rose, Botterell and Roche
in London, and there seems to me to be no room for any real doubt that the parties to the settlement
contemplated that the administration would take place in London.
Accordingly, in my judgment, the factual basis on which Mr. Lyndon-Stanford makes his submission is
sound. As to law, Mr. Lyndon-Stanford relies on the proposition stated in rule 121 in Dicey & Morris, p. 683:
"The administration of a trust is governed (semble) by the law of its place of administration." Among the
matters classified in the notes to rule 121 as matters of administration is: "the question who can appoint a
new trustee, and what persons may be so appointed." If this rule correctly states the law, it would seem to
follow that the issue regarding removal of the trustees of these settlements should be governed by the law of
the place of administration of the settlements. However, the tentative manner in which the rule is expressed
is justified, in my view, by the lack of clear authority provided by the cases cited in the footnotes.
There are two categories of case which must be distinguished from cases such as the present case. First,
there are cases which establish that the administrative powers conferred upon personal representatives by
the Administration of Estates Act 1925 can be exercised by English personal representatives in relation to
assets in England, whether or not the deceased died domiciled in England: see In re Wilks [1935] Ch. 645.
These cases exemplify the well-settled proposition that the administration of a deceased's assets is
governed by the law of the country from which the administrator derives his authority.
Secondly, there are cases which support the view that the provisions of English trust legislation apply to trust
property situated in England whether or not the trusts on which the trust property is held are the trusts of
foreign settlements: see In re Kehr, decd. [1952] Ch. 26, although Danckwerts J. doubted, at p. 30: "whether
trustees constituted
[1985] Ch. 409 Page 431
by the law of a foreign country would have the powers conferred upon trustees regulated by English law ...;"
see also In re Ker's Settlement Trusts [1963] Ch. 553. But neither of these lines of cases supports Dicey's
rule 121 when applied to a foreign settlement which is being administered in England but where the trust
property is not in England.
More cogent support is provided by In re Pollak's Estate [1937] T.P.D. 91. In that case the testator was
domiciled in the Transvaal. He left moveables in England and in South Africa as well as in other countries.
By his will he appointed as his executor and trustee an English bank which had no branch in South Africa
and left his residuary estate upon trust for beneficiaries, the majority of whom were domiciled in England. A
number of questions were raised for the decision of the Transvaal court, including a question as to the law
which should determine the rights and duties of the bank as trustee in the execution of the testamentary

Page 20

trust. Since the testator was domiciled in the Transvaal, South African law governed the construction of the
will, but the court concluded that the testator had intended the trust to be administered in England, and Davis
J., with whose judgment Greenberg J. concurred, said, at p. 101:
"I have no doubt that in appointing an English bank ... to administer a trust fund wherein the great majority of the
persons interested were at the time domiciled in England, the testator ... intended English law to govern."

He cited, at p. 102, with approval this passage from the volume on Conflict of Laws issued by the American
Law Institute, at p. 380:
"If the testator appoints as trustee a trust company of another state, presumptively his intention is that the trust should
be administered in the latter state; the trust will therefore be administered according to the law of the latter state."

Accordingly, the court held that the rights and duties of the bank as trustee were to be governed by English
law, notwithstanding that the essential validity of the trust and the construction of the will were governed by
the law of South Africa, the domicile of the testator. The reasoning which led the Transvaal court to this
decision I respectfully accept. The court concluded that the testator in establishing a settlement to be
administered in England must have intended English law to govern its administration. The court gave effect
to that intention. But it does not follow from In re Pollak's Estate [1937] T.P.D. 91 that the law of the place of
the administration of a trust would govern the rights and duties of the trustee in a case where the
circumstances did not enable the inference to be drawn that such was the testator's or settlor's intention. In
re Pollak's Estate was a case of testamentary trust. It is well-established English law that the essential
validity of a testamentary trust of moveables is governed by the law of the testator's domicile. But there is no
reason why a testator should not by will establish a trust to be governed by some law other than the law of
his domicile. His ability to create the trust may be subject to the law of his domicile but subject thereto he is,
in my view, as able by will to make a foreign settlement as
[1985] Ch. 409 Page 432
he is able to do so inter vivos. In re Pollak's Estate supports the proposition that a testator can do so. It does
not, in my view, support anything further and does not really support rule 121.
As a matter of principle, I find myself unable to accept the distinction drawn by rules 120 and 121 in Dicey &
Morris between "validity, interpretation and effect" on the one hand and "administration" on the other hand.
The rights and duties of trustees, for example, may be regarded as matters of administration but they also
concern the effect of the settlement. The rights of the trustees are enjoyed as against the beneficiaries; the
duties of the trustees are owed to the beneficiaries. If the rights of the beneficiaries are to be ascertained by
applying the proper law of the settlement, I do not understand how the duties of the trustees can be
ascertained by applying a different law, and vice versa. In my judgment, a conclusion that the law of the
place of administration of a settlement governs such matters as the rights and duties of the trustees, can only
be right if that law is the proper law governing the settlement.
But the right of beneficiaries to have trustees removed and new ones appointed is a right of a rather special
nature. It is not - at least in the usual case - a right conferred by the settlement. If it were the case that a
settlement conferred upon particular beneficiaries or on a particular person such as the settlor the right to
remove trustees and appoint new ones, that right - like any other rights conferred by the settlement on
beneficiaries or trustees - would, in my view, require to be given effect in accordance with the proper law of
the settlement. That would, in my view, be so regardless of where the settlement was being administered.
But no such right is conferred by the two settlements with which I am concerned.
The plaintiffs' claim for the removal of trustees and the appointment of new ones is, in this case - as in most
cases - not an attempt to enforce a corresponding right conferred by the settlements, but is an appeal to the

Page 21

inherent jurisdiction of the court to which Lord Blackburn referred in Letterstedt v. Broers, 9 App.Cas. 371,
386. The function of English courts in trust litigation is to enforce or protect the rights of the beneficiaries
which bind the conscience of the trustee defendants. The identification and extent of those rights is a matter
for the proper law of the settlement, but the manner of enforcement is, in my view, a matter of machinery
which depends upon the powers enjoyed by the English courts. Among the powers available to English
courts is the power to order the removal of trustees and the appointment of new ones. This power is, in my
view, machinery which, under English domestic law, can be exercised by English courts where necessary in
order to enable the rights of beneficiaries to be enforced or protected. The exercise of the domestic power
does not, in my view, depend upon whether the rights of the beneficiaries are enjoyed under domestic
settlements or foreign settlements, or on whether the trust property is situated in England or abroad. The
locality of the trust property will, however, determine whether the removal can be achieved by an in rem
order or whether an in personam order is appropriate. Accordingly, except where rights conferred by the
settlement are under consideration, the removal of
[1985] Ch. 409 Page 433
trustees and the appointment of new ones is not, in my judgment, a matter to be governed by the proper law
of the settlement. Nor, in my opinion, is it a matter governed by the law of the place where the administration
of the settlement has taken place. It is, in my judgment, a matter to be governed by the law of the country
whose courts have assumed jurisdiction to administer the trusts of the settlement in question.
In the view of the matter I take, therefore, I do not think that the identification of the proper law of the
settlement is a critical issue on this application. Any court before which the plaintiffs' case is litigated will have
to consider the rights of the beneficiaries under these discretionary settlements in order to form an opinion as
to whether the enforcement or protection of those rights requires the removal of the present trustees but no
one has suggested that the nature of those rights is going to be different if tested under Indian law than if
tested under English law. Any such difference is likely to be marginal only and to be immaterial for the
purposes of the plaintiffs' claim for the removal of the trustees.
Mr. Miller argued that if the proper law of the settlements were the law of India, the identity of any new
trustees should be decided upon by the application of criteria relevant to an Indian discretionary trust
established for the benefit of an Indian family, and that this could not well be done by an English court. I hope
I have the argument correctly, and if I have I am bound to say that I think there is nothing in it. On any
footing, these discretionary settlements are Indian settlements, in a descriptive and not a proper law sense,
intended for the benefit of an Indian family, and English courts, if they came to appoint new trustees, would
apply criteria to their selection which would reflect that character of the settlements. I do not accept that the
criteria which would be applied by an Indian court would be any different from those applied by an English
court, and I do not accept that in either jurisdiction those criteria would be any different if English law or
Indian law were the proper law of the settlements.
It is, therefore, not necessary for me to decide on this application whether Indian law or English law is the
proper law of the settlements. I am dealing with an interlocutory application. The relevant evidence has not
been tested by cross-examination. In these circumstances, I would, I think, be unwise to express a
conclusion on the proper law question and I do not do so.
I have held, contrary to Mr. Miller's submissions, that the English courts have both jurisdiction and power to
deal with the plaintiffs' claim for the removal of trustees and for the appointment of new ones. In that event,
Mr. Miller submits that the court ought nevertheless to decline to exercise that jurisdiction on the ground,
shortly stated, that there is another competent jurisdiction, India, in which justice can be done between the
parties, and that by comparison with India, England is a forum non conveniens.
I have been referred to a number of decisions in which the criteria to be applied by a court which is asked to
stay an action on, in effect, forum non conveniens grounds, have been discussed. Mr. Miller referred

Page 22

[1985] Ch. 409 Page 434

me to The Atlantic Star [1974] A.C. 436, to Lord Reid's dictum, at p. 454D, that the plaintiff should offer some
reasonable justification for his choice of forum, and Lord Kilbrandon's comments, at p. 475A-E, that
conveniens is to be read as meaning "appropriate" rather than "convenient." In MacShannon v. Rockware
Glass Ltd. [1978] A.C. 795 Lord Salmon at p. 817, expressed the test as being whether the defendants could
show that to refuse a stay would produce injustice. Lord Keith of Kinkel, at p. 828, said that a defendant
seeking a stay must show good reason why the court's discretion should be exercised in his favour. I was
referred to Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. [1984] A.C. 50 where Lord Diplock,
at p. 68, referred to excessive costs or excessive delay likely to be occasioned by the foreign proceedings as
factors to be taken into account, and to the most recent House of Lords authority on the subject, The Abidin
Daver [1984] A.C. 398, where Lord Diplock, at p. 411G, commented that there was no longer any discernible
difference between the English law approach and the Scottish doctrine of forum non conveniens. Mr.
Lyndon-Stanford referred me to the principles set out by Robert Goff J. in Trendtex Trading Corporation v.
Crdit Suisse [1980] 3 All E.R. 721.
These authorities establish that the old rule expressed by Lord Blackburn in Ewing v. Orr Ewing, 9 App.Cas.
34, that an English court has no discretion where defendant trustees are properly before it to decline to
administer the trust of a foreign settlement, is no longer good law. On the positive side, the authorities
establish that in all cases where on forum conveniens grounds a stay is sought, the court must strike a
balance between the right of the plaintiff to choose his forum and the right of the defendant that he should
not be required to take part in litigation before a court inappropriate for that litigation. In striking the balance,
all the circumstances relevant to the parties and to the litigation are proper to be taken into account.
The circumstance on which Mr. Miller most heavily relied was that these are Indian settlements made for the
benefit of an Indian family. I accept his adjectives if used in a descriptive sense, and I accept that this is a
factor in favour of litigation in India rather than in England. The point is, however, a rather more precise one.
Although litigation in India and the jurisdiction of the Indian courts have been mentioned, it is in fact litigation
in Bombay and the jurisdiction of the Bombay courts for which Mr. Miller is contending. The Chellaram family
is a Bombay family. The evidence adduced before me has concerned the jurisdiction of and the incidents of
litigation to the Bombay courts. There has been no evidence relating to litigation in any other courts in India.
Mr. Lyndon-Stanford has sought to meet Mr. Miller's point by questioning whether the Bombay court would
accept jurisdiction in this case, and I have had expert evidence as to this from Bombay lawyers. Mr. Mehta,
for the plaintiffs, has given his opinion that the Bombay court would not have jurisdiction. Mr. Munim, for the
defendants, has concluded that it would. Both views depend upon certain assumptions which Mr. Mehta and
Mr. Munim respectively make. Having considered this evidence, the position, in my view, can be summarised
thus: the Bombay court has the jurisdiction conferred on it by the letters patent
[1985] Ch. 409 Page 435
which created it; it does not enjoy, as does the English court, an inherent jurisdiction. The Bombay court has,
as I understand it, jurisdiction if the defendants are resident or carry on business within its territorial area.
This requirement is satisfied so far as Mr. Advani, Lokumal, and Pishu are concerned. As to the others, Lal,
Ram, Sham and Murli, each of them retains in Bombay both a business and residential connection which I
would expect to be sufficient to satisfy the jurisdictional requirements. It is, however, on the evidence
possible that there might be some difficulty in the case of Lal who resides generally in Hong Kong, and in the
case of Sham, who is generally in Nigeria, in establishing the requirement.
In addition, the Bombay court has jurisdiction whenever the cause of action in question arises within the
jurisdiction. This test of jurisdiction is a little difficult to apply to a case where administration of a trust, or a
facet thereof such as the removal of the trustees, is sought. This is particularly so where, as here, the trust
property is not situated within the jurisdiction.

Page 23

Although, on the evidence before me , I think it likely that the Bombay court would accept jurisdiction, I am
left with a measure of doubt whether it would, under the terms of its letters patent, have jurisdiction to
entertain this case. It is true, as Mr. Miller pointed out, that all the defendants, having asserted before me that
the Bombay court would have jurisdiction, would be in a poor position to assert before the Bombay court that
it did not. But neither of the experts has commented on this point, and I am not sure that I can make any
assumptions as to how the Bombay court would be likely to receive it. Under English law, a statutory
jurisdiction cannot normally be enlarged by an estoppel.
I think, therefore, that the lack of certainty about the jurisdiction of the Bombay court goes some way to
counteracting Mr. Miller's reliance on the Indian nature of the settlements and the beneficiaries.
There is, however, a further important point regarding litigation in Bombay. The evidence before me was that
the usual delay in the Bombay court between the commencement of an action and the date of hearing is
from seven to 10 years. Mr. Miller accepted that that was so, but suggested that the plaintiffs could bring
their claim by means of a petition instead of by writ, and that an action commenced by petition would be far
more expeditious than an action commenced by writ. However, nothing in the expert evidence supported
either suggestion. Mr. Advani, Mr. Mehta and Mr. Munim discussed the likely delay in the case of writ
actions. None mentioned the possibility of a petition. I cannot believe that one or other would not have done
so had a petition represented a practicable and preferable alternative. I must, therefore, approach the
present application for a stay on the footing that if the plaintiffs are required to litigate in India they must
expect a minimum delay of seven years before obtaining a hearing. Such delay might expose the plaintiffs to
considerable hardship. I have already observed that no income has ever been produced by the trust
shareholdings and that no distributions under the settlements have ever been made. This circumstance,
whether or not a matter of legitimate complaint by the
[1985] Ch. 409 Page 436
plaintiffs, has never in the past been complained about. Harish and his family have in the past been in receipt
of very substantial periodic payments from family sources. The evidence before me does not indicate the
precise source of these payments, nor whether the payment had any, and if so what, connection with the
interests of the plaintiffs under the settlements. However, in May 1983 the payments ceased. I need not
explore the reasons why the payments ceased; the evidence put before me on that matter is highly
controversial and is untested by any cross-examination. It is, however, common ground that the payments
have ceased and that the financial position of Harish and his family has correspondingly worsened.
Substantial assets potentially available for the support of Harish and his family are tied up in the settlements,
but those assets are controlled by the defendants and are not producing any income at all. In these
circumstances, I think Mr. Lyndon-Stanford is entitled to say that a minimum seven year and a possible ten
year delay before a hearing can be obtained, might represent a serious injustice to the plaintiffs.
I bear in mind that, if the English action continues, there will be some delay in England before the case is
heard, but I do not believe the delay will approach anywhere near the minimum seven year delay which, it
seems, must be expected in Bombay. This, in my view, represents a heavy factor in the balance against a
stay.
The personal circumstances of the parties and any witnesses are relevant. As to this, I accept that India
would be a more convenient locality in which to litigate than England would be. This is certainly so for the
defendants who live in India: namely, Mr. Advani, Lokumal and Pishu. It is probably so for Murli, Sham and
Lal, although I find it difficult to see why it should be so for Ram. For the plaintiffs too, who live in Singapore,
Bombay would seem, objectively speaking, to be a more convenient locality for litigation than London. For
Lachmibai and Mohan, both of whom are probable witnesses and possible additional parties, Bombay would
be far more convenient than London. However, all the defendants have establishments in London at which
they reside from time to time with their respective families. I infer that there would be no difficulty in
Lachmibai and Mohan obtaining accommodation in London in a family environment. Moreover, the

Page 24

Chellaram family, although properly described as a Bombay family, are in many respects an international
family. London is familiar to them. They visit London relatively regularly and, at least to some extent,
organise their business affairs from London. I do not, therefore, regard the geographic convenience of
Bombay as a factor of very much weight.
Taking into account all the various factors, the balance comes down, in my opinion, firmly on the side of
allowing the litigation in England to continue. The commencement of the action in England was not, in my
view, an exercise in "forum shopping"; there always was, and is, a strong connection between England and
the settlements, and between England and the Chellaram family. Administration of the settlements was
intended at the date of the settlements to take place in England. Such administration thereof as there has
been since the date of the settlement has taken place in England. Four of the defendants hold
[1985] Ch. 409 Page 437
British passports. All the defendants as well as the plaintiffs regularly spend time in England. In these
circumstances, the pejorative epithet of "forum shopping" is not, in my judgment, aptly applied to the
commencement by the plaintiffs of this action in England. Further relevant factors are that this is not a lis alibi
pendens case and that it is a case in which each of the defendants was either served personally in England
or gave instructions to Norton, Rose, Botterell and Roche to accept service on his behalf, and thereby
voluntarily submitted to the jurisdiction.
In my judgment, the defendants have failed to cast England as a forum non conveniens. It is settled on
authority that the onus lies on the defendants to satisfy me that I ought, in my discretion, to grant a stay.
They have not done so, and I therefore refuse a stay and dismiss their applications.
Summons dismissed with costs.
Solicitors: Norton, Rose, Botterell & Roche; Macfarlanes.

T. C. C. B.