Judgment

VAIDIALINGAM, J.:- This appeal, by special leave, is directed against that part of the judgment and order dated February 3, 1965 of the High Court of Mysore, dismissing I. A. No. 20 in R. A. No. 109 of 1947-48, filed by the appellant praying for an order nullifying all the proceedings in R. A. No. 109 of 1947-48 and directing the retransfer of O.S. No. 61-A of 1947 to the City Court with a further direction to the said Court to draw up a decree in the suit.

2. The circumstances leading up to the filling of the above application before the Mysore High Court may be stated:

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 widow, 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 property to the members of the family and the major portion of the properties had been 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 testator s 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 of the Court of 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 testator s 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 power to dispose of the properties by will, as they were joint family properties.

5. In June 1943, the members of the testator s family filed two suits - one in the Cantonment Court, as O. S. No. 60 of 1944 and another before the District Court Bangalore (hereinafter referred to as the City Court) as O. S. No. 56 of 1942-43. Another suit was filed by them on the Original Side of the Madras High Court in or about October, 1944, which suit was numbered as Civil Suit No. 214 of 1944. The 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.

6. It is not necessary for us to pursue probate proceedings in the Cantonment Court, which were converted into a Testamentary Suit, except to state that the said Court upheld the truth genuineness and validity of the will and ordered the issue of Probate to the Executors. This decision was challenged before the British Resident in Mysore by the aggrieved parties in R. A. Nos. 1 and 2 of 1944. Which were dismissed on July 5, 1944. Though, leave to appeal to the Judicial Committee had been granted, the appeal ultimately became infructuous in view of the passing of the Indian Independence Act, 1947.

7. Similarly, the Executors had applied for Probate in 1944 in the City Court, within whose jurisdiction were situated considerable items of properties, dealt with under the will. That proceeding was also contested by the members of the testator s family and in August, 1946, the City Court granted Letters, as prayed for, to the Executors, subject to the result of the appeal pending before the Judicial Committee, against