Judgement Appeal from a decree of the High Court (March 1, 1906) affirming a decree of Moore J. (March 16, 1905). The suit was brought for the administration of the estate of S. Venkatavarada Iyengar by three of the executors with probate of his will against the fourth. The defendant was the testators son, and his case was that the will was invalid and that the assets had passed to him by survivorship, and he denied that the High Court had jurisdiction to entertain the suit. The High Court decreed against him. The testator was born at Madura in 1834, and was the son of Srinivasa Iyengar, who was treasurer of the Collector of Madura. In March, 1854, the testator having quarrelled with his father, from whom after that date he received no funds, left the family house and went to Mysore, where he lived, holding various appointments under the Mysore Government, till shortly before his death. Srinivasa Iyengar died in 1864, and on October 15 of that year a partition was effected between the testator and the other members of the family, in which there fell to the testators share certain immovable property in Madura and a sum of money which, after advances made by him for the expenses of the fathers funeral ceremonies, &c, had been recouped, was reduced to about Rs.7000. From the date of the partition onwards the testator made a practice of keeping separate accounts with regard to the property he obtained on partition on the one hand and his own earnings and the property which he had acquired therewith on the other hand. These documents came, on the testators death, into the hands of the appellant, but were not produced by him. The testator died on August 24, 1892, leaving the appellant, his only son (who was born in Mysore about 1872), the seventh respondent, his widow, and the ninth respondent, his daughter; and his estate consisted of movable and immovable property. The testator left a will dated August 3, 1892, by which he appointed as executors his son (the appellant), and Venkatavarada Iyengar, the first respondent, and two other persons, namely, Krishna Iyengar and Biligiri Iyengar. One other executor was appointed by the will, but he took no part in the administration of the estate or the application for probate. The testator left a will dated August 3, 1892, by which he appointed as executors his son (the appellant), and Venkatavarada Iyengar, the first respondent, and two other persons, namely, Krishna Iyengar and Biligiri Iyengar. One other executor was appointed by the will, but he took no part in the administration of the estate or the application for probate. In paragraph 4 of the will the testator said " I have from time to time written and kept lists of all my other principal ancestral and self-acquired properties. My son .... and after him his heirs shall get all these and all my other estate subject to the conditions mentioned hereunder and others have no right thereto." Then followed certain bequests. Provision for the daughter, the ninth respondent, was made in paragraphs 10, 11, and 12, which were shortly to the effect that Rs.40,000, being four-fifths of the sum for which the testators life had been insured, should be settled on her and her children. The remainder of the insurance money, namely, Rs.10,000, was to go to the widow, who is the seventh respondent, for life. Shortly after the death of the testator, the four executors above named obtained probate of the will in the Court of the British Cantonment at Bangalore, the estate there being sworn at Rs.6500, and subsequently, namely, on February 20, 1893, they applied to the High Court of Madras for probate limited to the Presidency of Madras. On May 5, 1893, this application was granted and probate was issued to them, they having given the usual undertaking duly to administer the assets and exhibit a true inventory of the same. In the following year, namely, on May 4, 1894, the appellant, in whose hands the other executors to a great extent left the administration of the estate, filed in the High Court a partial inventory shewing that Rs.65,146 had been realized in the course of the previous year in the Presidency town. The executors further realized on the life policies above referred to the sum of Rs.50,000, which was permitted to remain in the hands of the appellant, who did not invest it as provided by the will, but lent out the moneys to various persons. The first defendant for some time made payments to the seventh and ninth respondents as interest on the fund. The first defendant for some time made payments to the seventh and ninth respondents as interest on the fund. The first respondent and one of the other executors from time to time protested against the course which had been pursued, but in the month of August, 1898, the appellant, having stopped all payments to the widow and daughter, wrote a letter to the said Biligiri Iyengar at Madras repudiating his own position as an executor and trustee under the will, and stating that the will was invalid for the reason that all his fathers pro perty had been joint family assets, which on his death had passed to him by survivorship; and in the following month he filed an affidavit in the High Court of Madras setting up the same case. In 1899 the daughter, the ninth respondent, filed a suit against the four executors, praying, inter alia, that the intentions of the testator, as set out in paragraphs 10 and 11 of the will, should be carried out. No leave of the Court having been obtained under Letters Patent for the High Court, s. 12, and the appellant not dwelling or being within the jurisdiction of the Court at the time the suit was filed, the suit was dismissed as against him, but an account was directed to be taken as against the other executors. Two of the last-mentioned executors having died, and their representatives not having been brought on the record, that suit remained pending. On August 30, 1901, the other executors, having previously obtained the leave of the Court under the Letters Patent for the High Court, s. 12, sued the appellant. Two of them died, and in 1904 it was ordered that the second plaintiff be at liberty to continue the suit. In the plaint the history of the administration, the appellants repudiation of the will, and his breaches of the trust thereof were narrated. It was stated in paragraphs 20 and 21 as follows " Thus the total amount which the plaintiffs would require to be placed in their possession to effectually carry out the trust created by the said will is a sum of Rs.l,22,028 or thereabouts. That the estate realized in the Presidency of Madras under probate aforesaid is described in schedule C hereto, and is of the value of Rs.1,31,378 or thereabouts as aforesaid, which will cover. That the estate realized in the Presidency of Madras under probate aforesaid is described in schedule C hereto, and is of the value of Rs.1,31,378 or thereabouts as aforesaid, which will cover. what is required by the plaintiffs in the foregoing paragraph." The prayer was for the usual accounts and for the administration of the whole of the estate or any portion thereof sufficient to carry out the trusts of the will under the decree of the Court and for the removal of the defendant from the offices of trustee, &c, and for other relief. The principal pleas urged by the appellant in his written statement were that the property disposed of by the will constituted the joint estate of the testator and the appellant, who were members of an undivided family, that the appellant had applied for probate of the said will in ignorance of his rights, and that some of the provisions of the will were invalid as opposed to the limitations placed by the Hindu law on the power of bequest. In paragraph 10 objection was taken to the jurisdiction of the Court on the following grounds— 1. 1. That the suit was a suit for land within the meaning of s. 12 of the Letters Patent. 2. 2. The appellant did not at the time of the institution of the suit dwell within the ordinary original civil jurisdiction of the said High Court. 3. 3. That no part of the cause of action had arisen within the jurisdiction of the said High Court. 4. That the testator, the appellant, the plaintiffs, and the legatee were all foreigners omiciled in the State of Mysore, that the property the subject-matter of the suit was situate in the said State, and the trusts created by the said will were to be executed in the said State. Moore J. decided that the Court had jurisdiction to entertain the suit, on the ground that " part at all events of the cause of action arose in Madras, and such being the case it follows that the order giving leave to sue is legal " under Letters Patent, s. 12, although the learned judge was of opinion that the appellant at the time of the commencement of the suit, although he was living in Madras, was not dwelling" there within the meaning of that section. On the objection to the jurisdiction of the Court which was based on the fact that the appellant was a subject of the Mysore State, he held that it could not be supported on the evidence, which shewed that " on the 30th August, 1901, the date on which this plaint was presented, he was in the local jurisdiction of this Court." Further he found that the testator was in possession of ancestral property and also of self-acquired property, that he could not ascertain how much of the testators wealth was attributed to one source rather than to the other, and that the true question was, having regard to the position and means of the testator, whether the sums of money bequeathed by his will were in excess of the amounts he might during his lifetime have gifted to members of his family. On the application of this test, he decided in favour of the validity of the bequests. He added that there was no question but that the more important of the trusts of the will were valid, and that as soon as large sums of money belonging to the testator which the defen dant had taken possession of were recovered from him there could be no difficulty in carrying out those trusts. He accordingly made an interim order removing the appellant from the office of trustee and directing the usual accounts and inquiries to be taken and made. After the accounts had been tiled, Moore J., on March 16, 1905, delivered a final judgment, by which he decreed to each of the legatees under the will the arrears of moneys due to them, with interest at 6 per cent, per annum, and appointed a receiver of the whole of the testators estate to carry out the trusts of the will. A decree was made in accordance therewith. The High Court (see I. L. R. 29 Madr. 239) dismissed the appellants appeal from the interim order. It was of opinion that the Court had jurisdiction to entertain the suit because the appellant dwelt within the local limits of its ordinary civil jurisdiction at the time of the institution of the suit, because part of the cause of action had accrued at Madras, and because the appellant was amenable to the jurisdiction of the Court by which probate of the will had been granted to him. With reference to the character of the property disposed of by the will, the Court of Appeal held that it was the self-acquired property of the testator and that the appellant was estopped by the grant of probate and his subsequent conduct from impeaching the validity of the will. The High Court also dismissed the appellants appeal from the final decree made by Moore J., which in all essential matters it affirmed. Cohen, K.C., De Gruyther, K.C and Kyffin, for the appellant, contended that the High Court had no jurisdiction to entertain the suit or to grant to the respondents the relief allowed to them by the decrees under appeal. They relied on the grounds stated in the appellants written statement as above set out and referred to the Civil Procedure Code, s. 17, s. 138, and s. 10. The appellant is a foreigner and the Court has no jurisdiction. Next he is not estopped from disputing the validity of the will. [Sir R. Finlay. The estoppel relied upon is that the appellant took and retained possession as executor of the will.] He acted, no doubt, for some time on the provisions of the will, but he was not informed as to his rights. He subsequently discovered that the property attempted to be disposed of by the will was joint property over which the testator had no disposing power, and eventually in August, 1898, it was shewn that he distinctly asserted his title by survivorship to all the properties comprised in the will and attempted to be disposed of thereby. They contended that on the evidence recorded in the case the property affected by the will was on well-known principles of law the joint property of the testator and his son the appellant. So far as the testator had acquired property it was with the aid of a nucleus of joint estate, and all his acquisitions must be deemed to be accretions to the joint estate. Reference was made to Maynes Hindu Law, 7th ed., p. 363; Evidence Act, s. 32, sub-s. 3 ; Luximon Row Sadasew v. Miillar Row Bqjee ((1831) 2 Knapp, P. C. 60.); Dhurm Das Pandey v. Shamasoondri Dibiah (( 1843) 3 Moo. Ind. Ap. 229.) ; Rampershad Tewarry v. Sheo Churn Doss (( 1866) 10 Moo. Ind. Ap. 490. 505.); Mahomed Sidick v. Haji Ahmed(( 1885) 1. L. R. 10 Bomb. 1. Ind. Ap. 229.) ; Rampershad Tewarry v. Sheo Churn Doss (( 1866) 10 Moo. Ind. Ap. 490. 505.); Mahomed Sidick v. Haji Ahmed(( 1885) 1. L. R. 10 Bomb. 1. 15.); Lal Bahadur v. Kanhaia Lal (( 1906) L. R. 34 Ind. Ap. 65, 68.); Maynes Hindu Law, 7th ed., pp. 348 and 352, ss. 277 and 281. Sir R. Finlay, K.C., and Kenworthy Brown, for the first, seventh, eighth, and ninth respondents, contended that the Courts in India had concurrently found that the testator had disposing power over the property comprised in his will sufficient at all events to provide for the legacies to the seventh, eighth, and ninth respondents. The evidence was quite sufficient to justify those findings. Some property had come to the testator at the time of partition in 1864 between him and the other members of his family. But he had always kept his own earnings separate from the property so derived, and there were documents which if produced by the appellant would clearly shew the extent of his self-acquisitions. Their source was not shewn to have been traceable to joint property as the nucleus, or starting point, or germ of the profits of his lifetime. Reference was made to Maynes Hindu Law, 7th ed., pp. 349, 350, s. 278, and p. 367, s. 291; Stranges Hindu Law, vol. i., p. 214 ; and to Beer Pertab Sahee v. Rajender Pertab Sahee. (( 1867) 12 Moo. Ind. Ap. 1, 38.) Besides this sort of defence is not open to the appellant, who obtained the testators estate as executor and trustee and could not deny the trust and at the same time retain the estate with all the advantages of possession. Reference was made to s. 14 of the Trust Act (II. of 1882) Attorney-Central v. Munro (( 1848) 2 De G. & Sm. 122, 163.) ; Newsome v. Flowers (( 1861) 30 Beav. 461. 170.) ; Saratchnnder Dey v. Gopal Chunder Laha (( 1892) L. R. 19 Ind. Ap. 203.); and to s. 115 of the Evidence Act. The question of jurisdiction was plain. The cause of action had arisen at any rate in part within the local limits of the jurisdiction of the High Court; the appellant was dwelling and at the time of instituting the suit actually present within those limits. Ap. 203.); and to s. 115 of the Evidence Act. The question of jurisdiction was plain. The cause of action had arisen at any rate in part within the local limits of the jurisdiction of the High Court; the appellant was dwelling and at the time of instituting the suit actually present within those limits. De Gruyther, K.C., replied, citing Act V. of 1881, s. 4 ; Maynes Hindu Law, 7th ed., p. 367, s, 291; Hurpurshad v. Sheo Dyal (( 1876) L. R. 3 Ind. Ap. 250); Luxmon Row Sadasew v. Mullar Row Bqjee (2 Knnpp, P. C. 60.); Maynes Hindu Law, pp. 348, 352, and 357, ss. 277, 281, and 285. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is an appeal from the judgment of the Madras High Court in a suit for the administration of the trusts of the will of Venkatavarada Iyengar, who died on August 24, 1892, domiciled in the State of Mysore. The judgment under appeal affirmed in substance the decision of Moore J. sitting on the original side of the Court. The appellant, who was the only son of the deceased, was one of the executors and trustees named in his will and sole residuary legatee. He joined in obtaining probate. He took upon himself the management of the estate arid possessed himself of all the assets. For some years he acted in execution of the trusts of the will. Called upon to account and charged with various breaches of trust, he now asserts that the will was wholly inoperative und that the entire estate was joint family property, and that it belongs to him in his individual capacity by right of survivorship. To such a contention advanced under such circumstances it would be a sufficient answer to say that no person who has accepted the position of trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself. But out of respect for the argument of counsel at the Bar and the elaborate judgments in the Courts in Madras, it will be proper to deal shortly with the facts of the case and the grounds of the decision under appeal. The testator was born at Madura in 1834. But out of respect for the argument of counsel at the Bar and the elaborate judgments in the Courts in Madras, it will be proper to deal shortly with the facts of the case and the grounds of the decision under appeal. The testator was born at Madura in 1834. He was the son of Srinivasa Iyengar, who was treasurer of the Collector of Madura. In March, 1854, after a quarrel with his father, he left the family house and went to Mysore. He maintained himself there by his own exertions. He held various appointments under the Mysore Government, and got together a considerable sum of money in his fathers lifetime. His father died in 1864, and a partition was then effected between the testator and the other members of the family. On the partition the testator received as his share a sum of money which, after recouping him for his outlay on account of his fathers funeral and on account of other family expenses, amounted to about Rs.7000. The testator continued to improve his fortune after his fathers death. His estate when he died was worth about four lakhs of rupees. He left a widow and an only daughter as well as his son surviving him. The testators will was dated August 3, 1892. He named as executors his son and four other persons. One of those four persons did not prove the will or intermeddle with the estate. The other executors were N. T. Venkatavarada Iyengar, the first respondent, Biligiri Iyengar, an attorney of the Madras High Court (now deceased), and Krishna Iyengar (also now deceased). After stating that he had given certain jewels to his son the testator proceeded to declare his will as follows " I have from time to time written and kept list of these and of all my other principal ancestral and self-acquired properties. My son Rajasvi Srinivasa Moorthi (may he live long), and after him his heirs, shall get all these and all my other estate, subject to the conditions mentioned hereunder, and others have no right thereto." Then followed certain bequests. Provision for the daughter was made in paragraphs 10, 11, and 12, which were to the effect that Rs.40,000, being four-fifths of the sum for which the testators life had been insured, should be settled on her and her children. Provision for the daughter was made in paragraphs 10, 11, and 12, which were to the effect that Rs.40,000, being four-fifths of the sum for which the testators life had been insured, should be settled on her and her children. The remainder of the insurance money was to go to the widow for life. Shortly after the testators death the appellant and the three other executors who proved the will obtained probate in the Court of the British Cantonment at Bangalore, and on February 20, 1893, they applied to the Madras High Court for probate, limited to the Presidency of Madras. On May 5, 1898, probate was issued to the appellant and the other three executors, and the usual undertaking was given by them to administer the estate and exhibit an inventory. On May 4, 1894, the appellant filed a partial inventory shewing that Rs.65,146 had been realized in the Presidency town. The sum of Rs.50,000 was also received from life policies. For some time the appellant made payments to the daughter and the widow as interest on the fund in his hands. In August, 1898, the appellant wrote to his co-executor Biligiri repudiating his position as trustee, and stating that the will was invalid on the ground that all his fathers property was joint family property and belonged to him as survivor. In the month of September, 1898, he filed an affidavit in the Madras High Court setting up the same case. In 1899 the daughter brought a suit against the appellant and his co-executors, but as the leave of the Court had not been obtained in accordance with s. 12 of the Letters Patent for the High Court, the suit was dismissed against the appellant, who was not then within the jurisdiction of the Court. Accounts were directed as against the other executors, but no further steps were taken in that suit. In August, 1901, the appellants co-executors brought the present suit against the appellant, alleging various breaches of trust on the part of the appellant in which they seem to have participated to some extent themselves. Accounts were directed as against the other executors, but no further steps were taken in that suit. In August, 1901, the appellants co-executors brought the present suit against the appellant, alleging various breaches of trust on the part of the appellant in which they seem to have participated to some extent themselves. They alleged that the assets realized in the Madras Presidency in the hands of the appellant were more than sufficient to enable them to carry out the trusts of the will, and they asked for the usual accounts, administration of the estate, and removal of the defendant from the office of trustee. The plaint was afterwards amended by striking out the names of the two plaintiffs who died pending the suit. On October 11, 1904, Moore J. delivered judgment, ordering that the surviving plaintiff and the defendant should be removed from their office as executors and trustees under the will, and directing the usual accounts to be taken with liberty for all the beneficiaries to come in and prove their claims. On March 16, 1905, Moore J. made a final decree appointing a receiver and directing certain payments in accordance with the result of the accounts which had been taken. The defendant appealed to the High Court from both decrees. The High Court dismissed both appeals with costs, and ordered the appellant to pay into Court on or before a day named in the order Rs.l,15,000, with interest, to answer the amounts found due from him, with directions to the receiver in case of default to raise the required amount out of the estate and to execute the decree as if it were a decree in his favour for that sum. From this decree, which is dated March 1, 1906, and the other orders and decrees made in the suit, the defendant appealed to His Majesty in Council. The argument of the learned counsel at the Bar was addressed to (1.) the question of jurisdiction, and {2.) the question as to the nature of the testators estate. The question of jurisdiction is too plain for argument. The argument of the learned counsel at the Bar was addressed to (1.) the question of jurisdiction, and {2.) the question as to the nature of the testators estate. The question of jurisdiction is too plain for argument. Both Courts held that the cause of action arose partly within the jurisdiction of the High Court, and although the judge of first instance thought himself bound by a decision which had really no application to the case to hold (contrary to his own opinion) that the defendant was not "dwelling" within the jurisdiction, the High Court not unnaturally thought that inasmuch as he had taken up his abode with his wife and family in a hired house in Madras, meaning to remain there several months, and was actually living there when the suit was instituted, he could not be heard to say that he was not "dwelling" within the jurisdiction of the High Court. As regards the second question both Courts rejected the defendants contention. In the High Court Subrahmania Aiyar J., with whom the Chief Justice agreed, held that it could not be doubted that " the testator kept his own earnings separate from the property that came to him at the time of the partition," and also that there was no doubt " that the testator left at his death documents which would clearly shew how much of the assets left by him were his own acquisition and therefore at his disposal." All the testators papers came at his death into the hands of the defendant, and the inference which the learned judges drew from the evidence in the case was that the material documents were withheld by the defendant because they would disprove his story. Both Courts took a view of the defendants character not altogether favourable. He was a person to some education, with some knowledge of the rights of members of an undivided family, and an astonishing disregard of truth. Their Lordships see no ground for dissenting from the conclusion at which the learned judges of the High Court have arrived, and in the result they will humbly advise His Majesty that the appeal should be dismissed with costs.