Whether expert in foreign law can apply foreign law to facts of case before court?

What he would not be entitled to do,
however, is apply what he believes to be the foreign law in question to the facts of
the case before him and to recommend a solution. That has always been within
the exclusive province of the Court deciding the matter. This is to my mind is a
point of distinction between foreign law as a body of learning and other scientific
disciplines. A court, given its legal training, would be perfectly capable of applying
foreign law, once it is ascertained, to the facts before it. However, in respect of
other fields of inquiry, such as medicine, odontology or psychiatry, an expert
witness may legitimately bring his learning to bear upon the facts of the case in
expressing his opinion, which the Court would then proceed to weigh in the
balance along with other factors in deciding the ultimate issue. Indeed, expert
evidence of this nature would not be meaningful unless it bore upon the facts in
question. Even here, however, the role of the expert is not, as the Hon’ble
Supreme Court observes in Ramesh Chandra Agrawal v. Regency Hospital Ltd. &
Ors.(supra), that of a judge or jury and the task of adjudication falls upon the
court alone.

22. If one were to test the evidence of Mr. Keel against this touchstone viz., an
expert in foreign law would be entitled to express an opinion as to what the law is,
but not apply that law to the facts before the Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1428 OF 2015
IN
SUIT NO. 536 OF 2011

DHIRAJLAL ALIAS DHIRUBHAI BABARIA AND ANR. … 
V
NAVINBHAI C. DAVE & ANR.
 CORAM: S. J. KATHAWALLA, J.
 Dated : 29th August, 2017



1. The present Notice of Motion has been filed by the abovenamed Plaintiffs
for expunging/striking off parts of the Affidavit of Evidence in Lieu of

Examination-In-Chief of the Defendants’ Witness – Mr. Patrick Keel, wherein he
states that he is “making this Affidavit as an expert in Texas civil law”. The
reliefs sought by the Plaintiffs is based on their contention that Mr. Keel has not
confined his evidence to what the Texas Law is, but has proceeded to apply that
law. In other words, in the present Notice of Motion, the Plaintiffs raise an issue
as to the proper scope of expert evidence on a point of foreign law. This issue
arises in the following circumstances:
(a) The Plaintiffs are seeking to enforce a Judgment dated 21st September 2010
of the District Court, 14th Judicial District, Dallas County, Texas, U.S.A.
(“Texas Court”) in Case No.09-15036 (“Texas Case”) directing the
Defendants, jointly or severally, to pay the Plaintiffs a sum of USD 7.5 million.
The Defendants have sought to resist the enforcement of that Judgment on
various grounds including, inter alia, a plea that the Texas Court did not have
jurisdiction over the Defendants and, consequently to render the Judgment of
which the Plaintiffs seek enforcement.
(b) The Plaintiffs in support of their case examined two Witnesses, one Mr.
Lawrence L. Mealer and one Mr. Gregory G. Jones. Both Mr. Mealer and Mr.
Jones are lawyers licensed to practice in the State of Texas. In addition, Mr.
Mealer was also the Attorney who acted on behalf of the Plaintiffs in the Texas
Case in which the Judgment dated 21st September 2010 came to be passed. Both

Mr. Mealer and Mr. Jones offered evidence in their capacity as experts on Texas
Law on the issue of jurisdiction raised by the Defendants. The Defendants raised
certain preliminary objections as to the relevancy and admissibility of the
evidence of Mr. Mealer and Mr. Jones. These objections were ruled upon and
both Witnesses were thereafter extensively cross-examined.
(c) On the Plaintiffs closing their case, the Defendants offered their first
Witness, Mr. Patrick Keel. Mr. Keel is also an attorney licensed to practice,
amongst others in the State of Texas. He also appears at one point to have served
as the Judge of the 345th District Court of Travis County, Texas. Mr. Keel has
himself no personal connection with the proceedings before the Texas Court
which resulted in the Judgment in question. He has been offered by the
Defendants as an expert on Texas Law.
(d) When the Affidavit in Lieu of Examination in Chief of Mr. Keel was
tendered across the Bar on 14th July, 2015, Mr. Khambata, on behalf of the
Plaintiffs, took exception to certain portions of his Affidavit as being inadmissible.
The Plaintiffs, thereafter, filed the present Notice of Motion articulating those
objections, which Notice of Motion is taken up for hearing and final disposal.
2. Both parties have addressed me at length on the issue of admissibility and
filed Written Submissions with respect to their case.

3. It is the Plaintiffs’ case:
(a) That an expert on a point of foreign law must confine his evidence to what
the foreign law is, and ought not to go further and apply that law to the facts of the
case in which he is deposing. That task according to the Plaintiffs, is that of the
Court alone. In support of this proposition, the Plaintiffs have relied on various
Judgments including inter alia, the Judgment of the Hon’ble Supreme Court in
Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors.
1
, the Judgment of the
Privy Council in Florence A. Deeks v. H.G. Wells & Ors.
2
, the Judgment of the
Madras High Court in N.P.L. Palaniappa Chetty v. N.M.R. Nagappa Chettiar
3
 and
the Judgment of the Full Bench of the Delhi High Court in Commissioner of
Income Tax, Punjab, Jammu and Kashmir and Himachal Pradesh v. R.B.
Jodhamal Kuthiala
4
.
(b) The Plaintiffs contend that many portions of the Evidence of Mr. Keel do not
meet this test. He has in several places sought to apply Texas Law, as he perceives
it, to the facts of the case and to conclude that the Texas Court acted in error in
assuming jurisdiction over the Defendants and rendering the Judgment, of which
1 AIR 2010 SC 806
2 1933 The Law Weekly 314
3 AIR 1930 Mad 146
4 (1968) 69 ITR 598

the Plaintiffs seek enforcement. The Plaintiffs have annexed to their Written
Submissions a statement extracting the portions of the Evidence of Mr. Keel
which they contend fall foul of the test articulated by them and are for that reason
inadmissible. This statement is reproduced hereinbelow:
Para
Nos.
Extract Reason for
Inadmissibility
12 4
th line 2nd Sentence from top
Based on the documents filed in the Texas
Action, including the Petition filed by
Plaintiffs that admits that both Defendants
are residents of India, it is clear that the
Texas Court did not have general
jurisdiction over the Defendants.
Purported effect and result
based on his opinion of
Texan law
18 7
th last line
Because the execution and performance
called for by the Settlement Agreement
were entirely outside of Texas, the exercise
of personal jurisdiction would not comport
with the Texas long-arm statute or the Due
Process Clause. In my opinion, the record
before the Texas Court did not contain
sufficient facts to support specific personal
jurisdiction. The Texas Court was not a
competent court of jurisdiction to entertain
and dispose of Texas Action.
Purported effect and result
based on his opinion of
Texan law
22 First line
The challenges in the Answers, both made
on a pro se basis, are even more direct in
challenging jurisdiction than the challenges
deemed a special appearance in N803RA,
Inc. v. Hammer.
Purported effect and result
based on his opinion of
Texan law
22 Last Sentence

In my opinion, the language contained in
the Answers repeatedly asserting that the
cause of action is not related to Texas and
that Texas is not a proper forum for the
Texas Action constituted special
appearances by both Defendants.
23 First line
For these reasons, the Answers did not
constitute general appearances
Purported effect and result
based on his opinion of
Texan law
26 4
th line from bottom
In my opinion they did not. It is further my
opinion, for the reasons explained above,
that the Defendants expressly denied the
jurisdictional allegations that Plaintiffs
made; thus, Defendants satisfied the
requirements described in Kawasaki.
Purported effect and result
based on his opinion of
Texan law
27 5
th line from bottom
In my opinion they did. Indeed, as
explained above, the Defendant’s answers
here were even more detailed and in better
compliance with Rule 120a than the
answers that Texas courts have found to be
sufficient in other cases. In my opinion,
there is no room for debate on this issue:
The Defendants’ answers complied with
Rule 120a.
Purported effect and result
based on his opinion of
Texan law
32 7
th line from bottom
Based on these authorities, it is my opinion
that, had any defect in the special
appearances been brought to the Texas
Court’s attention, the Texas Court would
have afforded Defendants an opportunity to
cure any such defects, including any defect
concerning verification. The Jones Affidavit
is therefore incorrect in asserting that the
special appearances were defective.
Purported effect and result
based on his opinion of
Texan law

Plaintiffs never brought any defect to the
Texas Court’s attention.
34 4
th line from top till end
That is precisely the problem here, but this
was a problem of the Plaintiffs’ making. Mr.
Mealer, attorney for the Plaintiffs, knew by
the Defendants’ answers that Defendants
had contested personal jurisdiction under
Rule 120a yet Mr. Mealer moved the court
for summary judgment by asserting that the
Defendants had made “general
appearances.” This, in my opinion, misled
the Court
Comment on Plaintiff’s
Advocate’s alleged
conduct before Texan
Court
35 6
th line from top till bottom
In my opinion, Mr. Mealer compounded his
error by further misleading the Texas Court
into finding, in his second paragraph of the
Judgment, that each Defendant “has
entered an appearance in this action and
accepted the jurisdiction of this [Texas]
Court for all purposes.” Based upon the
authorities cited above and for the reasons
previously explained, the Defendants
unquestionably made special appearances
under Rule 120a of the Texas Rules of Civil
Procedure and without any doubt the
Defendants objected to jurisdiction of the
Texas Court, rather than accept it.
Comment on Plaintiff’s
Advocate’s alleged
conduct before Texan
Court
36 Entire paragraph
Further, as to the Corporate Defendant, Mr.
Mealer’s position is inconsistent. On the
one hand, Mr. Mealer contended to the
Texas Court that the Corporate Defendant
could not file an answer except through an
attorney, which never happened. On the
other hand, Mr. Mealer asserted to the
Texas Court that the corporate director’s
Comment on Plaintiff’s
Advocate’s alleged
conduct before Texan
Court

answer on behalf of the Corporate
Defendant could be used against the
Corporate Defendant as a “general
appearance.” Neither the Mealer Affidavit
nor the Jones Affidavit offers any
explanation for this inconsistency. Either
the corporate director’s answer should be
considered (in which case it was a proper
objection to personal jurisdiction) or it
should not (in which case it could not be
used to establish a “general appearance”)
39 8
th line from bottom Pg. 20
In my opinion, the so-called evidence of
damages that Plaintiffs presented in
connection with the Summary Judgment
Motion, i.e., the value of the Subject
Property, was inadmissible under Rules 701
and 802 of the Texas Rules of Evidence. (A
printout of rules 701 and 802 of the Texas
Rules of Evidence is at Sr. Nos. 17 and 18
to the Defendant’s Additional Compilation
of Documents) The fact that there was no
evidence for quantifying the damages
demonstrates that the finding in the
Judgment as regards damages was not
supportable on its face.
Criticism of approach of
Texan Court
+
Purported effect and result
based on his opinion of
Texan law
40 Entire paragraph
In the Mealer Affidavit, Mr. Mealer states
in paragraph 21 the basis for the $ 7.5
million value: “I say that since the Plaintiffs
had after the filing of the lawsuit received
information reflecting a more recent
appraisal of the value of the property, the
same was claimed in the Plaintiffs’ Motion
for Summary Judgment.” In his answers to
Questions 105-107 on cross examination,
Mr. Mealer admitted that Plaintiff’s only
knowledge on the fair market value of the
Comment on evidence /
cross examination of
Plaintiff’s witness

Subject Property was “[o]n the basis of his
investigation into valuation of the property
in question.” Yet that “investigation”
consisted merely of Plaintiff’s review of
documents that, as Mealer conceded,
“would themselves would be hearsay.”
Mealer nevertheless appears to maintain
that Plaintiff was able to testify on
“personal knowledge.” In my opinion, Mr.
Mealer’s lack of impartiality as an advocate
for his client is demonstrated here because
his own description belies any notion that
Plaintiff’s testimony was based on
“personal knowledge.”
41 Last Sentence
The Plaintiff testified as a lay witness and is
not the owner of the Subject Property;
therefore, his opinion as to value was not
admissible to establish the amount of
damages.
Comment on probative
value of Plaintiff’s
evidence before Texan
Court
42 6
th line from the top
To the extent that Plaintiff’s affidavit relied
on other peoples’ opinions (such as an
appraisal) to determine the value of the
Subject Property, such opinions constitute
hearsay not subject to any exception to the
hearsay rule and are therefore not
admissible as evidence of value. Mr.
Mealer’s contention that Plaintiff’s
affidavit was based upon “personal
knowledge” is belied by Mr. Mealer’s own
description of the facts. Because Rule
166a(f ) of the Texas Rules of Civil
Procedure requires that supporting
affidavits be made on personal knowledge,
and because the Plaintiff’s affidavit in the
Texas Action was not based upon personal
Purported effect and result
based on his opinion of
Texan law
+
Comment on evidence /
cross examination of
Plaintiff’s witness
+
Criticism of approach of
Texan Court

knowledge, there was no evidence before
the Texas Court to support the award of
damages in the Judgment.
43 8
th line from the top
And therefore, Plaintiffs failed to satisfy
their burden of showing that their evidence
was based upon personal knowledgewhether
a hearsay objection was made or
not.
Purported effect and result
based on his opinion of
Texan law
+
Criticism of approach of
Texan Court
43 Last two sentences
Plaintiffs did not meet this burden. To the
contrary, Plaintiffs’ own description shows
that their affidavit was based upon other
than the affiant’s personal knowledge.
44 4
th line from the top
In his answer to Question 59 during crossexamination,
Mr. Mealer attempted to
justify Plaintiff’s failure to comply with this
requirement by contending that Plaintiff’s
affidavit was based upon “personal
knowledge.” Yet that assertion is belied by
Mr. Mealer’s statement in paragraph 21 of
the Mealer Affidavit, in which Mr. Mealer
admitted that the basis of Plaintiff’s
contention regarding fair market value was
another person’s appraisal. Rule 166a(f )
required that such an appraisal be attached
to Plaintiff’s affidavit.
Comment on evidence /
cross examination of
Plaintiff’s witness
45 1
st line from the top.
Because no admissible evidence of the value
of the Subject Property was submitted to
the Texas Court in connection with the
Summary Judgment Motion, the Texas
Court should not have granted summary
judgment as to damages and therefore
should not have entered the Judgment in
Purported effect and result
based on his opinion of
Texan law
+
Criticism of approach of
Texan Court

favor of the Plaintiffs.
45 The last sentence.
The evidence that Plaintiffs submitted was
not admissible.
46 2
nd line from the top
As set forth above, Texas law is clear that,
because the Answers objected to the
jurisdiction of the Texas Court, each
Answer constituted a special appearance,
not a general appearance. There was no
basis for the Texas Court to conclude that
the Answers constituted general
appearances. Findings such as this one in a
summary judgment are typically drafted by
the Plaintiff’s attorney.
Purported effect and result
based on his opinion of
Texan law
+
Criticism of approach of
Texan Court
46 Last sentence
Plaintiffs’ attorney included a “finding” of
general appearances that any competent
Texas attorney would have realized was
insupportable.
Comment on Plaintiff’s
Advocate’s alleged
conduct before Texan
Court
47 10th line from bottom
Had the motion to abate been granted as
requested by the Plaintiffs, the Corporate
Answer would have been automatically
stricken without any further action by the
Texas Court. In my opinion, the Texas
Court chose to have the Order of
Abatement use the permissive word “may”
rather than the mandatory word “shall” to
benefit the Corporate Defendant by
allowing the Court to be flexible should the
Corporate Defendant not obtain counsel
during the allotted time frame. Further, in
my opinion, the Order of Abatement cannot
be interpreted in a manner detrimental to
the Corporate Defendant, i.e., to mean that
Criticism of approach of
Texan Court

the Corporate Answer was not stricken and
constituted an appearance in the Texas
Action.
48 1
st Line
Because there were no general appearances
to constitute a waiver, the Texas Court was
required to decide the special appearances
before granting the Summary Judgment
Motion.
Criticism of approach of
Texan Court
50 Entire Paragraph
Because the Defendants did not file any
papers other than the Answers (which did
not constitute general appearances), in my
opinion Defendants were not required to
request a hearing before entry of the
Judgment.
Purported effect and result
based on his opinion of
Texan law
52 4
th Line from the bottom
Here, the Defendants’ answers did question
the court’s jurisdiction and Defendants’
answers were limited as special appearances
in accordance with Rule 120a, for the
reasons discussed above.
Purported effect and result
based on his opinion of
Texan law
57 3
rd line from the top
The Defendants’ statement that they “had
not done business in Texas,” coupled with
their other statements regarding their
residence in India and that the Settlement
Agreement had been signed in India are
exactly the sort of assertions in a special
appearance that, in my opinion, are
sufficient to raise a question about whether
the court has personal jurisdiction.
Purported effect and result
based on his opinion of
Texan law
60 Entire Paragraph
Based on the foregoing analysis and my
experience with the laws of the State of
Purported effect and result
based on his opinion of
Texan law
+

Texas, I conclude that:
1) the language of the Answers was
sufficient to constitute special appearances;
2) the Answers were not defective as
special appearances by virtue of being
unsworn because any such defect was not
brought to the Texas Court’s attention,
which would have afforded Defendants the
opportunity to cure the defect;
3) the Texas Court erred in not
considering whether the Petition adequately
alleged personal jurisdiction before entering
the judgment;
4) had the Texas Court considered
whether the allegations in the Petition were
sufficient to confer personal jurisdiction, it
could not have properly concluded that they
supported either specific or general
personal jurisdiction;
5) there was no evidence before the
Texas Court as to the value of the Subject
Property;
6) absent evidence as to the value of the
Subject Property, it was clearly erroneous
for the Texas Court to render judgment in
the amount of $ 7.5 million; and
7) the Texas Court was not a competent
court of jurisdiction to entertain and
dispose of the Texas Action.
Criticism of approach of
Texan Court

(c) That if portions of the Evidence of Mr. Keel are inadmissible, this Court not
only has the power, but indeed the duty to strike out such evidence. In this
behalf, the Plaintiffs have relied on the Judgment of this Court in Mr.
Jitendra Singh Rajendra Singh Kushwaha - Caveator
5
, Mahabanoo Navroz
Kotwal v. Piloo Fali Bomanji
6
, and Harish Loyalka & Anr. v. Dileep Nevatia
& Ors.
7
.
4. The Defendants in their turn, argued:
(a) That the Plaintiffs’ Witnesses too have offered evidence very similar to
those portions of the Evidence of Mr. Keel which are alleged to be offending. In
particular, both Mr. Mealer and Mr. Jones (the Plaintiffs’ Witnesses) have not
only stated Texas Law for what it is, but have also contended for the reasons set
out in their Affidavit that the Texas Court acted properly in assuming jurisdiction
and passing the Judgment of which enforcement is sought before this Court. The
Defendants therefore submitted that the Plaintiffs themselves understood the
scope of expert evidence on a point of foreign law in the same way as the
5 (2013) 6 MhLJ 802,
6 unreported judgment dated 10th June, 2014 of this Court in Chamber
Summons (L) No.67 of 2014 in Testamentary Suit No.26 of 1999 in
Testamentary Petition No.504 of 1998.
7 Unreported Judgment dated 7th April, 2014 passed by this Court in Suit
No.3598 of 1996

Defendants, and that in any event the Plaintiffs’ Witnesses having committed the
same transgression of which Mr. Keel is accused, the Plaintiffs cannot seek to
have Mr. Keel’s Evidence struck off on the ground that it is inadmissible.
(b) That the evidence of Mr. Keel in its entirety, including the portions
complained of, is both relevant and admissible. The Defendants assert that an
expert, including one on a point of foreign law, is entitled to offer his opinion and
conclusions, including on the facts of the case in which he has been invited to
depose. In support of this proposition, as to the scope of expert evidence, the
Defendants relied on several Judgments, including the Judgments of the Hon’ble
Supreme Court in State of H.P. v. Jai Lal & Ors.
8
, Malay Kumar Ganguly v. Dr.
Sukumar Mukherjee & Ors.
9
, and Ramesh Chandra Agrawal v. Regency Hospital
Ltd. & Ors.
10
, as well as of various High Courts in Chellappan v. State of Kerala
11
,
and The State of Maharashtra v. Hormusji Dinshaw Davierwala
12. The
Defendants also relied on several Judgments of the English Courts in Re M and R
8 (1999) 7 SCC 280
9 Unreported Judgment dated 7th August, 2009 in Criminal Appeal Nos.1191-
1194 of 2005 along with Civil Appeal No.1727 of 2007
10 AIR 2010 SC 806
11 2013 (2) KLJ 279
12 (1979) 81 Bom.LR 114

(minors) (sexual abuse: expert evidence)
13, G. & H. Montage G.M.B.H. v. Irvani
14
,
and Fenwick v. Bell
15
, and Sills v. Brown
16
.
( c) That this view of the law is borne out by the plain language of Sections 45
and 46 of the Indian Evidence Act, 1872, which stipulates that the opinion of
experts, including on a point of foreign law, are relevant facts; and
(d) That only portions of the evidence of a witness which are clearly
inadmissible are liable to be struck out. Issues of relevancy ought to be relegated
to the stage of final arguments in the trial. The opinion of an expert on foreign law
being admissible as a relevant fact, the portions of the evidence of Mr. Keel which
express an opinion or conclusion as to the correctness of the course adopted by
the Texas Court, ought not to be struck off at this stage.
5. In rejoinder, the Plaintiffs sought to distinguish the Judgments relied upon
by the Defendants. It was pointed out that none of the Judgements of the Indian
Courts sought to be relied upon by the Defendants pertain to the evidence of an
expert on a point of foreign law. It was submitted that Judges being themselves
legally trained, expert evidence on foreign law can only legitimately state what the
13 (1996) 4 All ER 239
14 (1991) WLR 667
15 (1844) 1 Carrington and Kirwan 312
16 9 C. & P. 601

law is, rather than how it is to be applied, which is within the exclusive province of
the Court deciding the matter. Even in respect of branches of learning, which are
not ordinarily within the skill and experience of a Court, expert evidence is not a
substitute for the adjudicatory process. The Judge must, on the basis of often
competing expert evidence, decide how that particular branch of learning impacts
on the facts of the case before him. The Plaintiffs sought to distinguish the
Judgments of the English Courts relied upon by the Defendants, on the basis that
the law in England is in fact materially different from that in India. They
submitted that Section 3 of the English Civil Evidence Act, 1972 is not in pari
materia with Section 45 of our Evidence Act. Even so, it was submitted, the law in
England on the scope of the evidence of an expert on a point of foreign law is not
materially different from the position in India. In this behalf, the Plaintiffs relied
on the Judgment of the Court of Appeal in McMillan Inc. v. Bishopgate
Investment Trust Plc. (No.4)
17
. It was submitted that even under English Law, it
is not the function of an expert on foreign law to opine on the facts of the case, the
evidence before the Court, or how the foreign law is to be applied. On this basis,
the Plaintiffs sought striking off those portions of the Evidence of Mr. Keel
complained off by them.
17 [1999] C.L.C. 417

6. As regards the Defendants’ contention that the Plaintiffs’ Witnesses have
offered evidence very similar to the portions of Mr. Keel’s Evidence now sought
to be struck off as inadmissible, the Plaintiffs’ response was two-fold. The
Plaintiffs contended that the Defendants had not deemed fit to object to those
portions of the Evidence of Mr. Mealer and Mr. Jones which, according to them
constituted an expression of opinion on the facts of the case. As such, they remain
part of the record. However, Mr. Khambata also fairly conceded that any
standard that may be applied to the Evidence of Mr. Keel must also be applied to
those of Mr. Mealer and Mr. Jones and that portions of their Evidence which may
be found inadmissible on the test canvassed by the Plaintiffs, may be disregarded
at the time of final hearing.
7. I have perused the proceedings and have considered the oral as well as
written arguments advanced by the Learned Senior Advocates appearing for the
parties. It cannot be disputed that the role of an expert is not to act as a Judge or
Jury. The Hon’ble Supreme Court in paragraphs 14 and 15 of its Judgment in
Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors. (supra), has inter alia
explained the role/function /duty of an expert witness as follows:
“14. It is not the province of the expert to act as Judge or Jury. It is
stated in Titli v. Jones (AIR 1934 All 237) that the real function of the
expert is to put before the court all the materials, together with

reasons which induce him to come to the conclusion, so that the
court, although not an expert, may form its own judgment by its own
observation of those materials.
15. An expert is not a witness of fact and his evidence is
really of an advisory character. The duty of an expert witness is to
furnish the Judge with the necessary scientific criteria for testing the
accuracy of the conclusions so as to enable the Judge to form his
independent judgment by the application of these criteria to the facts
proved by the evidence of the case. The scientific opinion evidence, if
intelligible, convincing and tested becomes a factor and often an
important factor for consideration along with other evidence of the
case. The credibility of such a witness depends on the reasons stated
in support of his conclusions and the data and material furnished
which form the basis of his conclusions. (See Malay Kumar Ganguly
v. Dr. Sukumar Mukherjee and Ors.) Criminal Appeal Nos. 1191-1194
of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on
7.8.2009.”
8. This is also clear from the plain language of Section 45 of the Evidence Act
which reads:
“Opinions of experts – When the Court has to form an opinion upon
a point of foreign law or of science or art, or as to identity of
handwriting or finger impressions, the opinions upon that point of
persons specially skilled in such foreign law, science or art, or in
questions as to identity of handwriting or finger impressions are
relevant facts. Such persons are called experts.”

9. The role of the expert as envisaged in the Indian Evidence Act is thus
essentially to assist the Court in forming an opinion upon a point of foreign law or
science or art or as to the identity of handwriting, or finger impressions. The
question however, remains as to whether it would be the proper role of an expert
to express an opinion not only on a point of foreign law, or science, or art, but also
upon how his opinion on those aspects would bear upon the facts before the
Court. It appears that this would depend very largely on the nature of the opinion
that is sought from the expert examined as a witness in a proceeding. If an opinion
is sought as to whether a signature appearing on a document is genuine, it is
inevitable that a handwriting expert offered as a witness would compare the
signature in question to the admitted signature of the alleged executant. Having
done so, he would then express his opinion as to whether the signature/s are, in
fact, identical. He would, in fact, be expected to do so. The reasons that he might
offer in support of his opinion may or may not appeal to the Court which would
be perfectly free to reject the view of the expert and to decide on its own course.
Similarly, in a case where the identity of a victim or a perpetrator is in question,
an expert in DNA evidence may undertake a comparative study of tissue samples
and express an opinion on the basis of his examination. He would in this sense be
undoubtedly expressing his view or opinion on one of the issues in controversy in

the case in question. However, what would be the proper role of an expert on
foreign law? In answering this question, it is important to keep in mind that a
Judge is himself legally trained. The application of the law to a set of facts is
within his or her special expertise. As such, when a case involves a point of
foreign law, while a Judge may require assistance in forming an opinion as to what
the foreign law is, he certainly requires no assistance in applying the law so
ascertained, to the facts before him. This view of the proper scope of expert
evidence on a point of foreign law is borne out by the plain language of Section 45
which reads in relevant part:
“When the Court has to form an opinion upon a point of foreign
law … the opinions upon that point of persons specially skilled in
such foreign law, … are relevant facts.”
The expert thus expresses his opinion on what the foreign law is, which is
undoubtedly a relevant fact, but not on how that law is to be applied.
10. I am fortified in this view by the Judgment of the Madras High Court in
N.P.L. Palaniappa Chetty v. N.M.R. Nagappa Chettiar (supra) where the role of
an expert on a point of law was described thus at Page 146:
 “ An expert in foreign law is called as I understand it to state what
the law of a foreign country on a particular point is; an Advocate of
the Scottish Bar is often called as a witness in the English Courts to

explain the Law of Scotland on any particular point that arises. But
in this case we have the law laid down for us in a particularly
elaborate manner in the Ceylon Civil Procedure Code and it
appears to us that it is our duty to interpret that Code as best we
can and that we are not entitled to rely on any outside opinion,
however eminent, as to the interpretation of that Code.” (emphasis
supplied)
11. This view is also echoed in a Judgment of a Full Bench of the Delhi High
Court in Commissioner of Income Tax, Punjab, Jammu and Kashmir and
Himachal Pradesh v. R.B. Jodhamal Kuthiala (supra) where the Court held at Page
603:
“… It is relevant to point out that under the English law, foreign
law can be proved only by expert testimony and not by mere
production of books containing foreign law as is permissible in
India under section 38 of the Indian Evidence Act, 1872. Under
that section courts can take judicial notice of a foreign statue
contained in a book issued under the authority of the foreign
Government. Section 45 of the said Act makes the evidence of an
expert on foreign law a relevant fact. It is always for the courts to
judge the evidence of an expert and if an expert in foreign law
says, the law in his country is this, and if that evidence is accepted
by the court, that may be a finding of fact. If, on the other hand,
the expert produces the foreign law and thus proves the contents
thereof, his opinion as to the construction of that law will be

subjected to scrutiny by the court and is placed at par with the
evidence of other experts. It is only where the matter enquired of
lies within the range of the peculiar skill and experience of the
witness and is one of which the ordinary knowledge and
experience of mankind does not enable the courts to see what
inferences should be drawn from the facts that the witness may
supply opinion as their guide. The afore-mentioned basic
difference in laws in the two countries calls for caution in
applying English decisions. It follows, therefore, that when the
contents of a foreign law in the language or translated into the
language known to the courts in India are proved by an expert,
what that law means must always be left to the determination by
the courts. If Mr. Veda Vyasa argument were to be accepted, the
result would be that in a case where judicial notice of a foreign
law is taken under section 38 of the Indian Evidence Act and the
court of fact construes that law, without any external aid, the
appellate court will be bound by that construction thereby
subjecting the matter of interpretation of law to a more rigid rule
than of even ordinary documents in relation to the extent of the
jurisdiction of the appellate courts. That would, in my opinion be
an irrational approach to the problem. Even in England it has
been held that, where an expert states his opinion based upon his
knowledge and practical experience of foreign law, he may refer to
courts decisions or treatises for the purpose of refreshing his
memory but in such an event the court is at liberty to examine the
law, decision or passage in question in order to arrive at its correct

meaning. Such an ascertainment of the meaning would always
remain a question of law. …” (emphasis supplied)
12. The Judgment of the Delhi High Court, in fact, points out the difference
between English Law and the law prevailing in India as to the mode of proof of
foreign law. However, though the two approaches are distinct, the English
position on the role of an expert on foreign law does not appear to be very
divergent from the Indian one.
13. The Court of Appeal in Macmillan Inc. v. Bishopsgate Investment Trust
Plc (No.4) (supra) has summarised the role of an expert on foreign law as follows:
“23. In our judgment, the function of the expert witness on foreign
law can be summarised as follows:
(1) to inform the court of the relevant contents of the foreign law;
identifying statutes or other legislation and explaining where
necessary the foreign court's approach to their construction;
(2) to identify judgments or other authorities, explaining what
status they have as sources of the foreign law; and
(3) where there is no authority directly in point, to assist the
English judge in making a finding as to what the foreign court's
ruling would be if the issue was to arise for decision there.”
Thus, even under English law, the role of an expert on foreign law appears to be
confined to informing the Court what the foreign law is. His role is predictive only

where there is no statute or authority on the point. He is then of necessity
required to predict, by extrapolating from the settled legal principles of that body
of jurisprudence, as to what view a Court in that jurisdiction may take when
confronted with the question on which he is deposing. This, however, cannot be
construed as applying foreign law to the set of facts before the Court in which he
is deposing or suggesting what the conclusion ought to be on the merits of the
matter. The only opinion or conclusion that he expresses is, as to the content of
the foreign law on which he has been offered as an expert witness.
14. I do not believe that the Judgments relied upon by Mr. Narichania lay down
any different proposition. It must be noted at the outset that none of the
Judgments relied upon by him, save and except for the Judgment of the Court of
Appeal in G. & H. Montage G.M.B.H. v. Irvani (supra), relates to the evidence of
an expert on a point of foreign law. In my view, this difference is quite material.
15. The Judgment of the Kerala High Court in Chellappan v. State of Kerala
(supra) concerns medical evidence in a criminal case and is of little assistance on
the proper scope of testimony of an expert on foreign law. The question in that
case was whether a partial denture found at the scene of crime belonged to the
Accused. It is on this limited question that expert evidence was offered. The
evidence offered by a Forensic Odontologist in that case was accepted as being

reliable. The Judgment however holds in no uncertain terms, that the role of an
expert is purely advisory and that the advice so offered may be accepted or
rejected by the Court.
16. The Judgment of the Hon’ble Supreme Court in State of H.P. v. Jai Lal &
Ors. (supra) was a case where the expert testimony of a District Horticultural
Officer on the fruit bearing capacity of the orchard in question, was considered
and rejected. The Court in doing so held:
“18. An expert is not a witness of fact. His evidence is
really of an advisory character. The duty of an expert witness is to
furnish the Judge with the necessary scientific criteria for testing
the accuracy of the conclusions so as to enable the judge to form
his independent judgment by the application of this criteria to the
facts proved by the evidence of the case. The scientific opinion
evidence, if intelligible, convincing and tested becomes a factor
and often an important factor for consideration along with the
other evidence of the case. The credibility of such a witness
depends on the reasons stated in support of his conclusions and
the data and materials furnished which form the basis of his
conclusions.”
17. The decision of this Court in State of Maharashtra v. Hormusji Dinshaw
Davierwala (supra) pertained to expert evidence as to the proper valuation of an
immovable property. Mr. Narichania relied upon this Judgment in support of the
proposition that the opinion of an expert witness may rest upon evidence offered
by other witnesses. He invited my attention, in particular, to an extract which
reads:
“5. … It is true that the opinion of an expert witness is admissible
in evidence not only when it rests on the personal observation and
inquiry of the witness himself or on facts within his own
knowledge, but also when it is founded on the case as proved by
other witnesses of the trial; and, under S.51 of the Evidence Act,
when the opinion is admissible, the grounds upon which it is based
are also admissible. But we understand it to be settled law that an
expert may not be asked purely speculative hypothetical questions
having no foundation in the evidence in other words, before the
expert witness is entitled to give evidence on the hypothesis, a
sufficient foundation for it must be laid by due evidence alluinde of
the facts assumed.”
The scope of the evidence offered by an expert must, as adverted to above,
necessarily depend on the nature of the evidence offered by him. It is thus
inevitable that a valuer who is examined as an expert witness will comment upon
the value of the property in question in the proceedings. In fact, his evidence
would not be of much help if he did not. However, the Judgment casts no light on
what the proper scope of expert evidence on a point of foreign law would be.

18. The Judgment of the Hon’ble Supreme Court in Ramesh Chandra
Agrawal v. Regency Hospital Ltd. & Ors.(supra), which was relied upon by the
Plaintiffs as well, also did not concern the evidence of an expert in foreign law.
Mr. Narichania invited my attention in particular to paragraphs 20 and 22, which
are reproduced hereinbelow:
“15. An expert is not a witness of fact and his evidence is really
of an advisory character. The duty of an expert witness is to
furnish the Judge with the necessary scientific criteria for testing
the accuracy of the conclusions so as to enable the Judge to form
his independent judgment by the application of these criteria to
the facts proved by the evidence of the case. The scientific
opinion evidence, if intelligible, convincing and tested becomes a
factor and often an important factor for consideration along with
other evidence of the case. The credibility of such a witness
depends on the reasons stated in support of his “conclusions”
and the data and material furnished which form the basis of his
conclusions. (See Malay Kumar Ganguly v. Dr. Sukumar
Mukherjee and Ors.) Criminal Appeal Nos. 1191-1194 of 2005
alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009.
… …
17. In the Article "Relevancy of Expert's Opinion" it has been
opined that the value of expert opinion rest on the facts on which
it is based and his competency for forming a “reliable opinion”.
The evidentiary value of the opinion of expert depends on the
facts upon which it is based and also the validity of the process by

which the conclusion is reached. Thus the idea that is proposed
in its crux means that the importance of an opinion is decided on
the basis of the credibility of the expert and the relevant facts
supporting the opinion so that its accuracy can be cross checked.
Therefore, the emphasis has been on the data on basis of which
opinion is formed. The same is clear from following inference:
Mere assertion without mentioning the data or basis is not
evidence, even if it comes from expert. Where the experts give no
real data in support of their “opinion”, the evidence even though
admissible, may be excluded from consideration as affording no
assistance in arriving at the correct value.”
Mr. Narichania relied on the said paragraphs to contend that it was perfectly
legitimate for an expert to offer his “opinion” or “conclusions”. While this is, no
doubt true, these “opinion” or “conclusions” must of necessity be in respect of
that aspect of the case on which the expert has been invited to depose. The
Hon’ble Supreme Court in that case was considering medical evidence, a body of
knowledge which the Court acknowledges to be beyond the experience of a lay
person. While holding that in “cases where the science involved is highly
specialised and perhaps even esoteric, the central role of an expert cannot be
disputed”, the Court was also careful to hold that it is not the province of the
expert to act as a judge or jury. The act of adjudication is even in such a case the

exclusive province of the court hearing the matter. The evidence of the expert is
merely one of the aspects that the court will take into account in doing so.
19. The Judgment of the Court of Appeal in Re M and R (Minors) Sexual
Abuse: Expert Evidence)(supra), related to the proper scope of expert medical
and psychiatric evidence in a case involving suspected child abuse. The Court
held, on a construction of Section 3 of the Civil Evidence Act, 1972 that a medical
or psychiatric expert was entitled to express his opinion or indeed his conclusion,
after a careful mental, behavioural and emotional analysis, as to the likely veracity
of the child in question. This was held not to usurp the judge’s or jury’s function.
Apart from the fact that Section 3 of the English Act is materially different from
Section 45 of the Indian Evidence Act, 1872, this Judgment is also of little
assistance on the proper scope of expert evidence on a question of foreign law.
20. The Judgment of Fenwick v. Bell (supra) also does not render any
assistance to the Defendants. That case concerned a question as to whether a
collision between two ships could have been avoided by proper care on the part of
the defendants’ servants. The expression of opinion by a nautical witness on this
issue was held to be legitimate. The court held that the opinion of a person of
competent skills as to what might or might not have been done by the parties
under a given set of circumstances, was relevant and that the jury was free to

decide upon the value of that opinion. The Judgment in Fenwick v. Bell was
followed in the case of Sills v. Brown (supra) which also involved a case of
maritime collusion and casts no light on the proper scope of expert evidence on a
point of foreign law.
21. The only Judgment relied upon by Mr. Narichania which relates to expert
evidence on a point of foreign law is that of the Court of Appeal in G. & H.
Montage G.M.B.H. v. Irvani (supra). The Judgment related to an issue arising
under Article 242 of the German Civil Code which had no clear or immediate
answer and on which expert evidence had been offered by both parties. The Court
observed at Page 16:
“The fact that the plaintiffs’ expert was not able to do more than
assert, in this novel situation, his own view on how the German
court would react when faced with a similar problem does not
disqualify his evidence from being relied upon. There are many
fields of law in which the books provide no direct answer, and
where the skill of the lawyer lies precisely in predicting what
answer should be given, if the judge concludes that the expert’s
prediction is reliable, he is fully entitled to give effect to it.”
The reliance placed by Mr. Narichania on this Judgment is misplaced. As
correctly submitted by the Learned Senior Advocates appearing for the Plaintiffs,
the expert on German Law in that case was not predicting the outcome of the case

before him. He was predicting rather how a German Court is likely to decide a
point of German Law on which there was no clear or decisive authority. That was
a perfectly legitimate exercise, and one which an expert in foreign law would be
entitled to undertake even in our courts. What he would not be entitled to do,
however, is apply what he believes to be the foreign law in question to the facts of
the case before him and to recommend a solution. That has always been within
the exclusive province of the Court deciding the matter. This is to my mind is a
point of distinction between foreign law as a body of learning and other scientific
disciplines. A court, given its legal training, would be perfectly capable of applying
foreign law, once it is ascertained, to the facts before it. However, in respect of
other fields of inquiry, such as medicine, odontology or psychiatry, an expert
witness may legitimately bring his learning to bear upon the facts of the case in
expressing his opinion, which the Court would then proceed to weigh in the
balance along with other factors in deciding the ultimate issue. Indeed, expert
evidence of this nature would not be meaningful unless it bore upon the facts in
question. Even here, however, the role of the expert is not, as the Hon’ble
Supreme Court observes in Ramesh Chandra Agrawal v. Regency Hospital Ltd. &
Ors.(supra), that of a judge or jury and the task of adjudication falls upon the
court alone.

22. If one were to test the evidence of Mr. Keel against this touchstone viz., an
expert in foreign law would be entitled to express an opinion as to what the law is,
but not apply that law to the facts before the Court, it quite clearly appears to me
that the extracts from Mr. Keel’s Witness Statement, to which the Plaintiffs have
objected, must be struck off from Mr. Keel’s Witness Statement. Mr. Khambata
has been at pains to show me from the Affidavit of Mr. Keel that none of the
portions of his testimony which relates to what the law in Texas is, has been
objected to by the Plaintiffs. Similarly, the Plaintiffs have also not objected to
those portions of the testimony of Mr. Keel where he comments on the evidence
of Mr. Mealer and Mr. Jones, as long as he is disputing their view of what the
Texas Law is. The Plaintiffs have sought to impugn as inadmissible only those
parts of the Evidence which seek to comment on the merits of the case before this
Court, and on the conduct of the Plaintiffs’ Advocates in Texas and generally on
the merits of the case. These, it appears to me, are clearly beyond the legitimate
scope of his testimony.
23. As for the argument of Mr. Narichania that issues of relevancy ought to be
relegated to the stage of final argument in the trial, it does not further the
Defendants’ cause. As I have understood Mr. Khambata’s submissions, the
Plaintiffs have sought to challenge portions of Evidence of Mr. Keel as being
“inadmissible” and not as being irrelevant, which argument I have accepted. Even

Mr. Narichania concedes that while issues of relevancy may be postponed to the
stage of final arguments, issues of admissibility cannot be so postponed. The
portions of Mr. Keel’s Evidence which are complained of as being inadmissible,
would thus have to be struck off at this stage.
24. I, accordingly, pass the following Order:
(a) The portions of the Affidavit dated 14th July, 2015 of Mr. Patrick Keel,
which are set out in Exh. ‘A’ to the Plaintiffs’ Written Submissions, and which are
reproduced in paragraph 2 (b) above, shall be treated as not forming part of his
Evidence.
(b) The statement made on instructions by Mr. Khambatta, Senior Advocate,
for the Plaintiffs that the standard applied to the Evidence of Mr. Keel may also
be applied to those of Mr. Mealer and Mr. Jones, and that portions of their
Evidence which may be found inadmissible on the test canvassed by the Plaintiffs
may be disregarded at the time of final hearing, is accepted.
(c) The Notice of Motion is accordingly disposed off with no order as to costs.
(S. J. KATHAWALLA, J.)

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