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

3. One V. Ramalinga Mudaliar, owned vast properties and interest in business in the territories of the old Princely State of Mysore, civil and Military Station in Bangalore and in the Madras Presidency. He died in Bangalore on December 18, 1942, leaving behind, his window, three sons and nine daughters. He had executed a will dated September 10, 1942. Under the will the testator bequeathed only small portions of his properties had dedicated to charities, enumerated in the will. Under the will, three executors were appointed. One of the executors died in November 1961 and another renounced his executorship in or about June 1951. Therefore, the only executor who was opposing the application before the High Court was the respondent.      4. When the executors under the will began to take steps to give effect to the directions contained therein, the members of the testators family began to resist their claim. This led to various proceedings in different courts by the contesting parties. The executors applied on January 17, 1943 to the District Judge, Civil and Military Station, Bangalore (hereinafter to be referred as the Cantonment Court) for grant of Probate of the will. Citations were issued to the members, and the members of the testators family, including the appellant before us, who is one of the sons of the deceased, entered caveat on February 4, 1943. The challenge made by the members of the family to the will was that the testator was not in a sound disposing state of mind at the time when he is alleged to have executed the will and that, in any event, the deceased had no powder to dispose of the properties by will, as they were joint family properties.      5. In June 1943, the members of the testators family filed twoe in the Cantonment Court, as O.S. 60 of 1944 and another before the District Court Bangalore (hereinafter to as the City Court) as O.S. 56 of. Another suit was filed by them on the Original Side of the Madras High Court in or about October, 1944, which suit in the Madras High Court was necessitated because of the fact that certain items of immovable properties, which had been dealt with under the will, were situated within the original jurisdiction of that High Court.

Reasoning:
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.