Case: R. Viswanathan Vs. R. Narayanaswamy Substituted By V.R. Ranganathan &amp; Others

14-A was as follow :"The Decree is not in accordance with the Judgment." 28. The records in the above appeal, as well as the connected appeal 104 of 1947-48 were inspected by the learned Judges of the High Court and they were satisfied that the above statements are contained in the memorandum of grounds accompanying the appeal. Paragraph 14 of the memorandum of appeal in R.A. 109 of 1947-48 clearly shows that though there was a common judgment in both the suits by the trial Court, a separate copy of the decree drawn up in O.S. 61-A of 1947 has been filed. That shows that as a fact, the certified copy of the decree in the said suit had been filed along with the appeal. It would not have been possible for the appellant therein to file a certified copy of the decree, unless the decree had been drawn up by the trial Court. The appellant who was a party in the said appeal, and on whom a copy of the memorandum of appeal must have been served, should have known about this recital therein. Notwithstanding that, he never raised any objection before the Full Bench of the Mysore High Court, which heard the appeal, that no degree copy has been filed. The further statement in ground 14-A, referred to above could not have been taken unless a decree copy had been made available to the appellant therein and filed along with the appeal. The specific plea is that the decree as drawn up by the trial Court in O.S. 61-A of 1947 is not in accordance with the judgment in the said suit. 29. The High Court office did not return the appeal, which would have been the case, if a decree copy had not been filed. There is an endorsement, as noted by the High Court, in the memorandum of appeal made by the Receiving Clerk of the Mysore High Court that a court-fee of Re. 1 has been paid on the "copy". The word "copy", it is not controverted, refers to the decree copy on which a court fee of Re. 1 had to be affixed. There is also an additional circumstance that in the Schedule of the cost attached to the degree in R.A. 109 of 1947-48, the sum of Re. 1 paid on the decree copy has been made payable to the appellant therein, and it has also been included along with other items. 30. There is also another circumstance to be noted. In the judgment of Ramaswami, J. of the Madras High Court, when exercising original jurisdiction in respect of the application for Probate and the suit filed by the members of the family, there is a reference to the Full Bench judgment of the Mysore High Court. It has been noted that though a common judgment has been delivered by the trial Court in the two suits, separate decrees have been drafted therein. This observation clearly shows that even at that time it has been noted by the Madras High Court that a separate decree has been drawn up in O.S. 61-A of 1947. 31. All the above circumstances clearly show that a decree had been drafted in O.S. 61-A of 1947 and a certified copy of the same was filed by the Executors in R.A. 109 of 1947-48. Mere endorsement of the Ministerial Officer and the order of the District Judge relied on by the appellant, do not, as rightly pointed out by the High Court, afford any assistance to the appellant excepting to create some confusion regarding the facts. We are in agreement with the finding of the learned Judges that appeal filed by the Executors, namely, R.A. 109 of 1947-48 was accompanied by a certified copy of the decree in O.S. 61-A of 1947 and therefore, the decree of the High Court cannot be treated as a nullity. 32. The effect to non-filing of a certified copy of the decree as well as the procedure to be adopted in respect of such appeals, have been considered by this Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava ((1961) 2 SCR 918 : AIR 1961 SC 832 : (1963) 2 SCJ 11). Phoolchand v. Gopal Lal ((1967) 3 SCR 153 : AIR 1967 SC 1470 : (1968) 2 SCJ 155), and Shakuntala Devi Jain v. Kuntal Kumari ((1969) 1 SCR 1006 : AIR 1969 SC 575 : (1969) 1 SCJ 912). As we have agreed with the finding of fact recorded by the High Court regarding the certified copy of the degree of the trial Court, having been filed, along with the appeal R.A. 109 of 1947-48, it is not necessary for us to deal in any great detail with the propositions laid down in the above decisions. 33. Regarding the second contention that there was no proper representation of the estate when the appeal 109 of 1947-48 was filed, in our opinion, this contention should not have been allowed to be raised by the appellant. This contention, even if accepted, is not one going to the root of the jurisdiction of the High Court to entertain the appeal so as to make the decree in appeal a nullity as claimed by the appellant. On the other hand, this is really a matter relating to merits which should have been raised during the hearing of the appeal. If the appeal was not maintainable, on any ground available in law, the appellant who was a party to the said appeal before the Mysore High Court, should have raised it at the proper stage and invited a decision on the same. The said question requires investigation into various facts. No doubt, the High Court in the present judgment has dealt with that contention and rejected the same holding that the estate was properly represented. As we are of the view that such a question should not have been allowed to be raised, it is not necessary for us to pursue this aspect further.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. From the above narration of facts it will be seen that regarding the immovable properties situated within the State of Mysore and movable properties outside the said State, the full Bench decision of the Mysore High Court holding that the properties ared properties and that the will has effect, holds the field. On the other hand in respect of the immovable properties dealt with under the will and situated within the jurisdiction of the Madras High Court, in view of the decision of this court approving that of the Madras High Court, the position is that the will is not operative21. Mr. Somnatha Iyer, learned Counsel for the respondent has referred us to various circumstances to show that the appellant had at no stage raised the contention that the appeal R.A. 109 of8 has been filed without a certified copy of the decree in O.S.A of 1947. The counsel also urged that the members of the testators family including the appellant who were all parties, to the various proceedings never challenged the Full Bench judgment of the Mysore High Court that it is a nullity, on the ground that is now taken in I.A. 20. On the other hand, they have proceeded on the basis that the appeal by the High Court. The binding nature of that judgment was contested before the Madras High court only on the ground that it has become Coram Non Judice. Even the second contention that the executor who filed the appeal did not have a representative capacity was not raised by the appellant who was a party to the appeal; nor by any member of the family. That contention is one relating to the merits and it should have been raised at the time when the appeal was being disposed of by the Mysore High Court. None of these contentions, the counsel pointed out, was raised even before this Court in C.A. 277 of 195823. It is really on the basis of the above office not and the order of the District Judge, referred to above, that the appellant filed I.A. 20 seeking the reliefs mentioned earlier. The High Court has declined to give much importance to this office note as well as the order of the District Judge on the ground that the District Judge, who made the endorsement was not the Presiding Officer in the Cantonment Court in 1947 and that the Ministerial Officer, who had put up the note did not have personal knowledge about what happened in 1947. This reasoning of the High court is very strenuously attacked by Mr. Iyengar24. It is pertinent to note that at no stage prior to the filing of this I.A. 20, the appellant had pleaded that the Full Bench judgment of the Mysore High court is a nullity in view of the fact that no decree copy in O.S.A of 1947 was filed along with the memorandum of appeal. There are several circumstances to show that this plea of the appellant is an after though and has absolutely no foundation whatever on facts25. We will now briefly refer to the various circumstances which will clearly show that not only was a decree drawn up in O. s.A of 1947 and that a certified copy of the decree was also filed along with the appeal R.A. 109 of. We have already pointed out that the appellant never raised this plea in any of the proceedings, on the former occasions. His only attack against the judgment of the Full Bench of the Mysore High court was that it has become coram non judice31. All the above circumstances clearly show that a decree had been drafted in O.S.A of 1947 and a certified copy of the same was filed by the Executors in R.A. 109 of. Mere endorsement of the Ministerial Officer and the order of the District Judge relied on by the appellant, do not, as rightly pointed out by the High Court, afford any assistance to the appellant excepting to create some confusion regarding the facts. We are in agreement with the finding of the learned Judges that appeal filed by the Executors, namely, R.A. 109 of8 was accompanied by a certified copy of the decree in O.S.A of 1947 and therefore, the decree of the High Court cannot be treated as a nullity33. Regarding the second contention that there was no proper representation of the estate when the appeal 109 of8 was filed, in our opinion, this contention should not have been allowed to be raised by the appellant. This contention, even if accepted, is not one going to the root of the jurisdiction of the High Court to entertain the appeal so as to make the decree in appeal a nullity as claimed by the appellant. On the other hand, this is really a matter relating to merits which should have been raised during the hearing of the appeal. If the appeal was not maintainable, on any ground available in law, the appellant who was a party to the said appeal before the Mysore High Court, should have raised it at the proper stage and invited a decision on the same. The said question requires investigation into various facts. No doubt, the High Court in the present judgment has dealt with that contention and rejected the same holding that the estate was properly represented. As we are of the view that such a question should not have been allowed to be raised, it is not necessary for us to pursue this aspect further.