The central legal point established in the judgment is the need for a detailed examination of the circumstances surrounding the renunciation and the conclusion that the matter should be decided in a regular suit rather than through summary proceedings.

Alfred Henry Lionel Leach, C.J.

1. This appeal arises out of an Order passed by Gentle, J. on an originating summons taken out by the respondents under the provisions of Order 45 of the Rules of the Original Side of this Court. The respondents are the widow and daughter respectively of one V. Rama Ayyangar, who died on the 14th April, 1937, leaving a will dated the 25th April 1936. By his will the testator appointed the appellant and his brother, who are his nephews, to be his executors. To the appellant he left his ancestral properties situate in the village of Tirukurangudi in the Tinnevelly District. The executors did not prove the will, although it has been said in these proceedings that they acted as the executors of the will for a period. It is alleged by the appellant that there was friction between the executors and the widow and the daughter as the result of which it was impossible for the executors to carry on with the administration of the estate. The appellant says that in consequence of this friction the respondents themselves applied for letters of administration with a copy of the will annexed and on the advice of friends the executors decided not to oppose the grant. On the 25th June, 1937, while the respondents application for letters was pending, the executors signed a statement in the following terms:

Now, we, the said T. S. Rajan and T. S. Santhanam, do hereby declare that we have not intermeddled in the property and credits of the said deceased, and will not hereafter intermeddle therein and we do hereby renounce all our right and title to the probate and execution of the said will as we do not desire to be executors in the circumstances that have happened since the reading of the will. The will is filed herewith.

2. It is the appellants case that in signing this statement he and his brother did so in order to preserve amity within the family. They were reluctant to renounce their executorships, but they did so as the result of advice that it would facilitate the administration of the estate, though their action was not intended to affect the appellants legacy.

3. Section 141 of the Indian Succession Act says that if a legacy is bequeathed to a person who is named as executor of the will, he shall not take the legacy unless he proves the will or otherwise manifests an intention to act as executor. As the result of the renunciation embodied in the statement of the 5th June, 1937 the respondents contended that the appellant has forfeited the legacy of the testators ancestral properties, and with a view to obtaining the directions of the Court the respondents took out this originating summons. Their right to do so was challenged by the appellant. He raised four grounds of objection, namely : (1) As the legacy comprised lands situate outside the limits of the Madras City the proceedings constituted a suit for land outside the jurisdiction of the Court and therefore the proceedings could not be maintained in this Court; (2) The appellant was not a resident of Madras and therefore an originating summons could not be taken so far as he was concerned; (3) the appellant had manifested an intention to act as executor and having done so his right to the legacy had been established; and (4) the questions in issue could not be decided with finality in summary proceedings and therefore the respondents should be relegated to a suit. The learned Judge decided all these contentions against the appellant.

4. In deciding the first contention, namely, that these proceedings comprised in effect a suit for land, the learned Judge did not consider the decided cases on the question, as they were not quoted to him. There are two decisions of the Calcutta High Court, Provas Chandra Sinha v. Ashutosh Mukherjee I.L.R.(1928) Cal. 979, Sendayal Ramjeedoss v. Official Trustee of Bengal I.L.R.(1930)Cal. 768 which support the appellants contention that this is in reality a suit for land, and there is another decision of the same High C