SHAH J.: - (1.) JUDGMENT of S. K. Das and Shah JJ. was delivereaby
(2.) RAMALINGAM Mudaliar-a resident of Bangalore (in the former Indian State of Mysore)-started life as a building contractor. He prospered in the business and acquired an extensive estate which included many houses in the Civil and Military station at Bangalore, in Bangalore city and also in the towns of Madras, Hyderabad and. Bellary. He dealt in timber, established cinematograph theatres, obtained a motor-car selling Agency and made investments in plantations and coffee estates. He set up a factory for manufacturing tiles, and later floated a sugar company. The Indian Sugars and Refineries Ltd., of which he became the Managing Agent and purchased a large block of shares. For some years before his death RAMALINGAM had taken to excessive drinking, and was subject to frequent coronary attacks. He became peevish and easily excitable and his relations with his wife and children were strained. RAMALINGAM felt great disappointment in his eldest son Vishwanatha who borrowed loans from money-lenders at exorbitant rates of interest, attempted to evade payment of customs duty, failsified accounts and otherwise exhibited utter lack of business of capacity.'' RAMALINGAM had developed a violent antipathy towards a sadhu named Ramaling swami, but his wife Gajambal and his children persisted in attending upon the sadhu and visited him frequently. This led to frequent quarrels between RAMALINGAM and his wife and children. RAMALINGAM stopped the allowance for household expenses, and cancelled the power which he had given to his son Vishwanath to operate on the joint Bank account. Shortly thereafter, he left the family house. On 2/06/1942, his wife Gajambal presented a petition before the District Judge, Civil Station Banglore, for an order against Eamalingam for inquisition under the Indian Lunacy Act. On that application evidence was directed to be recorded and the District Judge called for a medical report as to Abe mental condition of RAMALINGAM. In the meanwhile, Ramalingam executed his will dated 10/09/1942. By this will he made no provision for his eldest son Vishwanath, to each of other two sons and to Thygaraja, son of Viahwanath be gave immovable property valued at Rs. 55,000.00 and shares of the value of Rs. 20,00.00 in the Indian Sugars and Refineries Ltd. To his wife Gajambal he gave life interest in three houses then under construction with remainder in favour of Thygaraja, son of Vishwanath, and till the construction was completed a monthly allowance of Rs. 150.00 . To five out of his nine daughters he gave cash and immovable property approximately of the value of Rs. 25,000.00 each and to three others cash amounts varying between Rs. 5,000.00 to Rs. 7,5000.00 and excluded Bhagirathi, his daughter, altogether from the benefit under the will. He also made provision for the marriage expenses for his unmarried daughters and provided for payment of Rs. 5,000.00 to Mukti, daughter of Bhagirathi. Out of the remaining estate, he directed that Rs. 50,000.00 be spent in erecting a Gynaecological ward in the Vani Vilas Hospital, Bangalore, and stop the balance of the estate be invested in a fund, the income whereof be applied 'for encouragement and development of industries, education or medical research, diffusion of medical knowledge, including work in nutrition and dietry by the grant of scholarship etc.' The executors of the will were A. Wajid (retired Revenue Commissioner of the Mysore State), Narayanaswamy Mudaliar and S. L. Mannaji Rao. Ramalingam died on 18/12/1942, leaving him surviving three sons-Vishwa-nath, Swaminath and Amarnath-his widow Gajambal and nine daughters. The executors applied to the District court, Civil and Military Station, Bangalore, for probate of the will dated September 10, 1942. The widow and, children of Ramalingam entered caveat and the application 'was registered as Original Suit No. 2 of 1943. Mr. P. Medappa, who was then the District Judge dismissed the caveat and by his order dated Nov. 27 1943, granted probate of the will. An appeal against the order to the court of the Resident in Mysore, was dismissed on 5/07/1944. Leave to appeal against that order to the Judicial Committee of the Privy council was granted and a petition of appeal was lodged. But by order dated 12/12/1949, the Judicial Committee declined to consider the appeal on the merits, for, in the view of the Board, since the Civil and Military Station of Bangalore was before the bearing of the appeal retroceded to H. H, the Maharaja of .Mysore and was within the jurisdiction of his State at the date of the hearing of the appeal. His Majesty-in-Council could not effectively exercise jurisdiction which was expressly surrendered and renounced. The order passed by the District court granting probate accordingly became final and the validity of the will in so far as it dealt with property in the Civil and Military Station, Bangalore, is not liable to be challenged on the ground of want of due execution. Applications for probate of the will limited to property within the jurisdiction of the District court, Bangalore and the Madras High court were also filed and orders granting probate subject to the result of the proceedings before the Privy council were made. During the pendency of the probate proceeds., the sons of Ramalingam-who will hereinafter be collectively referred to as the plaintiffs-instituted three actions against the executors and other persons for establishing their title to and for possession of the estate disposed of by the, will of Ramalingam. These actions were : (1) Suit No. 56 of 1942/43 of the file of the District court, Bangalore for possession of immovable properties in Bangalore and the business carried on in the name of Ramalingam and also movables such as shares together with the profits and income accrued therefrom since 18/12/1942. (2) Suit No. 60 of 1944 in the District court, Bangalore Civil and Military Station for a decree for possession against the executor,% of immovable property within the territorial jurisdiction of that court, and (3) Suit No. 214 of 1944 in Madras High court on its original side for a decree for possession of immovable properties in the town of Madras and also for a decree for a possession of 'certain business' andmovables in Madras including the shares of the India Sugars Refineries Ltd.
(3.) AFTER the retrocession of the Military Station Bangalore in 1947 to the Mysore State, Suit No. 56 of 1942/43 was renumbered 61A. of 1947 and was consolidated for a trial with Suit No. 60 of 1944. Hearing of Suit No. 214 of 1944 on the Original side of the Madras High court was ordered to be stayed pending the hearing and disposal of the Mysore suits. In the three suits the plaintiffs claimed possession of the property devised under the will of Ramalingam dated 10/09/1942, on the plea that the property belonged to the jointfamily of the plaintiffs and the testator, and the executors acquired under the will no title thereto because the will was inoperative. The suits were resisted by the executors principally on the ground that Ramalingam. was competent to dispose of the estate by his will, for it was his self-acquisition. In the suit in the District court at Bangalore they also contended that the court had no jurisdiction to grant relief in respect of any property moveable or immovable outside the Mysore State. This plea was raised because in the plaint as originally filed the plaintiffs had claimed' a decree for possession of the immovable property in the Province of Madras and also on order for retransfer of the shares which were originally held by Ramalingam in the India Sugars and Refineries Ltd., and which were since the death of Ramalingam transferred to the names of the executors. By an amendment of the schedule to the plaint, claim for possession of immovables situate within the jurisdiction of the Madras High court but not the relief relating to the shares was deleted. The plea that the claim for possession of moveables outside the State of Mysore was not maintainable was apparently not persisted in before the District court. The District Judge, Bangalore, held that the property devised by the will dated 10/09/1942, was of the jointfamily of Ramalingam and his sons and the will was on that account inoperative. He accordingly decreed the suit for possession of the properties set out in the schedules and within his jurisdiction, and directed that a preliminary decree be drawn up for account of the management of the properties since the death of Ramalingam by the executors. Appeals preferred by the executors against the decrees of the District Judge in the two suits to the High court of Mysore were heard by Paramshivayya, C.J., and Balakrishanaiya, J. After the appeals were heard for some time, the hearing was adjourned for six weeks to enable the parties to negotiate a compromise. The plaintiff,,; say that it was agreed between them and the executors that the widow and the children of Ramalingam should take 3/5th of the estate covered by the will of Ramalingam executed on 10/09/1942, and that the remaining 2/5th should go to charity mentioned in the will and that in the event of the sons and widow of Ramalingam succeeding in the pending appeal in the Probate Proceedings before the Privy council, the 2/5th share should also be surrendered by the executors.;