Judgement

Appeal (No. 53 of 1948) from a judgment and decree of the Court of the British Resident in Mysore, Civil and Military Station of Bangalore (July 5, 1944), affirming a judgment and decree of the District Judge, Civil and Military Station of Bangalore (November 22, 1943) by which it was ordered that probate of the will dated September 10, 1942, with a codicil dated September 24, 1942, of one V. Ramalingam Mudaliar should issue to certain persons who were respondents to this appeal.

At the original hearing of the appeal, counsel for the respondents took the preliminary point that His Majesty no. longer had jurisdiction 10 entertain an appeal from the Court of the British Resident in Mysore.

1949. June 14, 15. Sir Valentine Holmes K.C., Gilbert Bold and Rajah Iyer for the respondents. The position immediately before the retrocession in 1947 was that Bangalore was part of the territory of the State of Mysore. His Majesty administered justice in, and made laws for, Bangalore under the powers conferred by the Foreign Jurisdiction Act, 1890, and the court of first instance in this case, and the appellate court, were both courts set up by His Majesty and applying the laws made by him. [With regard to the position before retrocession reference was made to Aitchisons Treaties, 5th ed., vol. 9, pp. 203, 250-54; to MacPhersons British Enactments in force in Indian States, 4th ed., vol. 9, p. 3, vol. 6, p. 212, and to In re Hayes (( 1888) I.L.R. 12 Mad. 39.).] At the moment before retrocession this action and the appeal had been heard, and leave to appeal had been given, by courts of His Majesty, all in proper order under the relevant sections of the Indian Civil Procedure Code, which had been made applicable to, and was part of the law of, Bangalore. Then came the retrocession. Thereafter the Maharaja of Mysore promulgated two laws on August 4, 1947, which he made retrospective to the date of the retrocession, their effect being that the Maharaja continued in force the laws which had been previously applicable in Bangalore. Act No. XXIV of 1947, called the Retrocession (Transitional Provisions) Act, provided in ss. 3 and 4, both in civil and criminal cases, that cases which on the date of retro cession were pending or part heard before the British courts should continue before the corresponding Mysore Court. Then came the most important provision for the present purposes, s. 8, which provided that il any decision of His li Majesty in Council given in an appeal now pending before His Majesty shall be effective in Mysore." On that section two matters have to be considered as bearing on the question whether His Majesty after that retained any, and what, power or jurisdiction to make an Order in Council on the advice of the Judicial Committee (i) whether the Maharaja of Mysore, which must now be regarded as a foreign sovereign State, can confer jurisdiction on His Majesty even if he wants to. There is no treaty by which His Majesty accepts, so to speak, jurisdiction. It is not desired to do more than point out that the question arises; (ii.) arises on the words "now pending before His Majesty in Council";. the important words are now and before.” Now pending before His Majesty in Council appears to mean that if the appeal is not pending on August 4, 1947, the date of the promulgation of Act XXIV of 1947, it will not be effective in Mysore. The other word is before "; it is not to," but before His Majesty in Council, and the question is, when is an appeal pending before the Privy Council, and it is submitted that it is not

Law Rep. 77 Ind. App. 116 ( 1949- 1950) Gajambal Ramalingam V. Rukn-Ul-Mulk Syed Abdul Wajid

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so pending until a petition of appeal has been lodged. In the present case the appeal was not pending until January 28, 1949, when the appellants petition of appeal was lodged. [On whether it could be said that there was an appeal is now lf pending on August 4, 1947, reference was made to The Judicial Committee Act, 1844