Judgement

Appeal (No. 123 of 1919) from a judgment and decree of the High Court (March 23, 1917) affirming a decree of the High Court in its original civil jurisdiction.

The suit was instituted in the High Court by the appellant who prayed for declarations as to the effect of a will.

The trial judge Macleod J. made a decree adverse to the plaintiff. Upon an appeal to the appellate jurisdiction of the Court the learned judges (Scott C.J. and Heaton J.) disagreed. The question upon which the learned judges disagreed was referred under s. 98, sub-s. 2, of the Code of Civil Procedure, 1908, and was heard by Batchelor and Shah JJ. who, agreeing with Heaton and Macleod JJ., decided the question referred adversely to the plaintiff. The present appellant had raised no objection to the procedure followed. An appeal to the Judicial Committee raising the whole question at issue between the parties came on for hearing in the ordinary course.

1921. Feb. 11. De Gruyther K.C. and Parikh for the appellant. Under s. 36 of the Letters Patent the appellant was entitled to a decision in her favour upon the Chief Justice and Heaton J. disagreeing. That section is not affected by s. 98 of the Code of Ci