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 Civil Procedure, but is preserved by s. 4 of the Code Roop Laul v. Lakshmi Doss (( 1905) I. L. R. 29 M. 1, 24.) ; Lachman Singh v. Lagan Singh (( 1903) I. L. R. 26 A. 10.) ; Nundeepit Mahta v. Urquhart (( 1879) 13 Suth. W. R. 209.); Surajinal v. Horniman (( 1917) Bom. Law Reporter, 185, 216.) ; see also Sabitri v. Savi. (( 1921) L. R. 48 I. A. 76.)

Sir Erle Richards K.C. and E. B. Raikes for the respondent. The procedure under s. 36 of the Letters Patent is modified by s. 98 of the Code. The latter section does not provide for a rehearing of the appeal, but for a reference upon the particular question upon which the judges differ. That procedure is consistent with the Letters Patent, the determination of the appeal remaining in the division bench which originally heard the appeal. Sect. 44 of the Letters Patent makes their provisions subject to the legislative powers of the Governor-General in Council. The appellant by not objecting to or appealing against the reference waived the right to object.

The judgment of their Lordships was delivered by

LORD BUCKMASTER. The real question involved in the dispute giving rise to this appeal was a question as to the construction of the will of one Nathoo Moolji, who died on December 8, 1894, affecting the respective estates and interests that were taken by the testators widow and his two daughters. One of the daughters died in the lifetime of the widow, and her heir, who is the present appellant, instituted, on the widows death, in the High Court of Judicature in Bombay, ordinary original civil jurisdiction, the proceedings out of which this appeal has arisen, claiming that, according to the true construction of the will, he was entitled to a vested one-half share in the testators property.

The learned judge before whom the suit was first heard dismissed the application and held that there was an intestacy after the widows death.

An appeal was taken from that judgment and heard before Scott C.J. and Heaton J. They differed in their opinion. Scott C.J. thought that the plaintiff was entitled to the relief he claimed ; Heaton J., on the other hand, agreed with the judge who had first tried the suit. The course then was taken to refer the matter to two other judges, Batchelor and Shah JJ., who also decided adversely to the plaintiffs contention.

The plaintiff has now brought an appeal before His Majesty in Council, and the first point that he has raised is this that the order made referring the case to the decision of Batchelor and Shah JJ. was ultra vires and void; that there was no jurisdiction in these two judges to entertain the dispute ; and that he is entitled, as of right, to a decree in accordance with the opinion of Scott C.J., the senior of the two judges before whom the appeal was first heard.

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