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. 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 236 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 (see Bentwich, Privy Council Practice, 3rd cd., p. 291), and to Gungadhur Seal v. Sreemutty Raddamoney Dossee (( 1855) 9 Moo. [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 (see Bentwich, Privy Council Practice, 3rd cd., p. 291), and to Gungadhur Seal v. Sreemutty Raddamoney Dossee (( 1855) 9 Moo. P.C. 111.).] Lastly, the Maharaja of Mysore promulgated Act 57 of 1948—the Retroceded Area Application of Laws Act, 1948—the effect of which is that all laws in force in Mysore should apply to the retroceded area, and the laws in force in the retroceded area, which would include s. 8 of Act XXIV of 1947, immediately before the appointed day—August 15. 1948—should not from that day have effect or be operative in the retroceded area. Further, Mysore has in fact acceded to the Dominion of India, and the words of sub-s. 1 (b) of s. 7 of the Indian Independence Act, 1947, which provide that the suzerainty of His Majesty over the Indian States should lapse are very wide words. Pritt K.C., Gahan and J. G. Le Quesne for the appellants. The preliminary point is a bad one. The Board is asked to hear an appeal which before the retrocession was unquestionably one over which it had the fullest jurisdiction, and which, it is submitted, it still has to-day, subject to certain qualifications. All that happened on the retrocession was that His Majesty gave up such a court, and said that he would no longer exercise that jurisdiction. If there was an appeal pending then, and it came before the Board, the Board would of course have jurisdiction to hear it. Such jurisdiction must be shown to have been taken away by positive enactment, and the relevant legislation in Mysore and the Indian Independence Act should be approached from that point of view. The Board have in fact jurisdiction, and if it reverses the judgment below that reversal would be given effect to by effective machinery of the court below. Here the court below was a good existing court and it made a valid order, and if it be right that this appeal is pending, then the Board has an appeal before it in which it can make an effective order, unless the Indian Independence Act alters the position. Here the court below was a good existing court and it made a valid order, and if it be right that this appeal is pending, then the Board has an appeal before it in which it can make an effective order, unless the Indian Independence Act alters the position. It is submitted that that Act does not take away any of the Boards jurisdiction to hear this appeal by taking away the jurisdiction exercisable by Hi Majesty in the Bangalore cantonment. The appellants are asking the Board to exercise jurisdiction to hear an appeal from a court of His Majesty, not from a court in an Indian State. As a matter of direct application s. 7 of the Indian Independence Act did not have any effect on the court in Bangalore at all. It would be most extravagant to construe sub-s. 1 (b) of s. 7 of that Act, without any express words in it, as operating to take to jurisdiction away from this Board. The proviso to sub-s.1 of s. 7 does not make any provision which covers this case, but it does show clearly that interim matters are to be carried on. Turning to the other matters on which the respondents rested; this appeal was pending at the time the courts were abolished. The appeal to the Board had been admitted by a court which existed, it was an appeal as of right, and the conditions had been fulfilled; nobody has taken away that right of appeal, all that they have done is to take away the court from which it comes. Therefore the problem is not jurisdiction, but whether it is any good the Board exercising jurisdiction if there is no machinery below to give effect to any order it may make. No order is going to be made unless it can be carried out. On the question whether this appeal is pending or not, the real purpose of Act XXIV of 1947 was to cover every conceivable form of litigation, and "pending" should be construed with reasonable generosity. Therefore, as from the date of the retrocession, July 26, 1947, Mysore is saying to this Board with great clarity, should you choose to pass on any pending appeal before you we will give effect to it. Therefore, as from the date of the retrocession, July 26, 1947, Mysore is saying to this Board with great clarity, should you choose to pass on any pending appeal before you we will give effect to it. Act 57 of 1948, if it applied to Act XXIV at all, would merely be confirming, and it is submitted therefore that s. 3 of the Act of 1948 has nothing to do with this case. This is an "appeal now pending before His Majesty in Council" The petition of appeal is in fact almost the least important thing. From the moment an appeal is admitted by a court which has an absolute right or jurisdiction to admit it, that appeal is from that moment effective before the Board; it is a pending appeal. The Mysore Act, which was intended to cover the whole field of matters which had not been finally disposed Law Rep. 77 Ind. App. 116 ( 1949- 1950) Gajambal Ramalingam V. Rukn-Ul-Mulk Syed Abdul Wajid 237 of, and the rules which now govern the Boards procedure show quite clearly that proceedings before the Board are pending not just from the moment of a petition of appeal, but from long before Judicial Committee Rules, 1925, rr.11, 22, 29. There are certain duties which fall on the Registrar at the moment when special leave to appeal has been granted or an appeal has been admitted by the court below Judicial Committee Rules, 1925, rr.34, 35, 36, 38; Colonial Appeal Rules, r. 20 (see p.17 of Bentwich, 3rd ed.); Bentwich, Privy Council Practice, 3rd ed., p. 82. It is abundantly clear that this appeal for certain purposes was an existing appeal before His Majesty in Council at least as early as February, 1947, and, it is submitted, February, 1945. [Reference was also made to the Code of Civil Procedure, or. 45, rr. 5, 7, 8.] The appeal is in existence in some form from the moment it is admitted. The machinery should never stand in the Boards way, and if it finds that it has a jurisdiction which has never been taken away, it might be that the Board would think it right to address its order to a court which has taken over the functions in Mysore. The machinery should never stand in the Boards way, and if it finds that it has a jurisdiction which has never been taken away, it might be that the Board would think it right to address its order to a court which has taken over the functions in Mysore. It could always address a request to the Mysore court to give effect to its order, or it might be sufficient to draw up an Order in Council declaring that the order below was right or wrong, and say no more. All the Board said in Gungadhur Seals case (9 Moo. P. C. 411.) was that it would not entertain any application on an appeal until the petition of appeal had been lodged. Sir Valentine Holmes K.C. replied. The meaning and effect of s. 7 of the Indian Independence Act cannot be affected by any legislation in Mysore—including s. 8 of Act XXIV of Mysore—but must be looked at quite independently of what has happened in Mysore. The Privy Council can make no order, certainly as to costs, until the petition of appeal has been lodged. Nov. 21. At the request of the appellants their Lordships heard further argument on the appeal. C. E. Padmanabhan for the appellants. The jurisdiction of the Privy Council to entertain an appeal from the Court of the British Resident in Mysore is covered by the proviso to s. 7 of the Indian Independence Act. It is submitted that the jurisdiction continues although it is not enumerated therein; St is covered by the words other like matters." Apart from that, it is conceded that there would be no jurisdiction remaining. Rewcastle K.C. and Dold for the respondents. The matter lies in a very narrow compass. The Bangalore Civil and Military Station was restored on July 26, 1947, under political notification. Thereupon we retroceded this land and jurisdiction to the Maharaja and therefore thereafter had no further connexion with Mysore of any sort or kind. That, it is submitted, is sufficient to show that the Board has no. jurisdiction to entertain the appeal. Further, all jurisdiction connected with the Indian States was deliberately taken away by s. 7 of the Indian Independence Act. C. E. Padmanabhan replied. Dec. 12. The judgment of their Lordships was delivered by LORD SIMONDS. That, it is submitted, is sufficient to show that the Board has no. jurisdiction to entertain the appeal. Further, all jurisdiction connected with the Indian States was deliberately taken away by s. 7 of the Indian Independence Act. C. E. Padmanabhan replied. Dec. 12. The judgment of their Lordships was delivered by LORD SIMONDS. Their Lordships having heard the preliminary point twice argued, first at the original hearing and then a second time at the request of the appellants, who asked for that indulgence on the ground that there was further matter to put before the Board, are of opinion that the objection is well founded for the reasons which they will now give. It will be convenient first to give the dates of the relevant steps in the proceedings out of which this appeal arises. As already stated, the orders of the District Judge and of the Court of the British Resident were dated respectively November 22, 1943, and July 5, 1944. On October 25, 1944, the appellants presented a petition to the Court of the British Resident for leave to appeal to His Majesty in Council. Leave was given by that court on January 17, 1945, and an order admitting the appeal was Law Rep. 77 Ind. App. 116 ( 1949- 1950) Gajambal Ramalingam V. Rukn-Ul-Mulk Syed Abdul Wajid 238 made on February 28, 1945. Service of notice of admission of the appeal was accepted on behalf of the respondents on February 1, 1947. In the month of October 1948, the Registrar of the High Court of Mysore (the Court of the British Resident having then ceased to exist) forwarded the record of the proceedings to the Registrar of the Judicial Committee of the Privy Council by whom it was received in the following month. The appellants lodged their petition of appeal to His Majesty in Council on January 28, 1949. The position of the Courts of the District Judge and of the British Resident in Mysore must now be briefly stated. In the year 1881 the rendition of the State of Mysore to its hereditary ruler was effected by the installation of the Maharaja under a Proclamation of the Viceroy and Governor-General of India, and at the same time an Instrument of Transfer was executed whereby it was (inter alia), by art. In the year 1881 the rendition of the State of Mysore to its hereditary ruler was effected by the installation of the Maharaja under a Proclamation of the Viceroy and Governor-General of India, and at the same time an Instrument of Transfer was executed whereby it was (inter alia), by art. 9, provided that the Maharaja would not object to the maintenance and establishment of British cantonments in the said territory whenever and wherever the Governor-General in Council might consider such cantonments necessary, and would grant free of all charge such land as might be required for such cantonments and would renounce all jurisdiction within the lands so granted. Shortly thereafter the Maharaja, pursuant to the said 9th article, assigned free of charge to the exclusive management of the British Government for the purposes stated in that article the lands described therein, which were in effect, the area forming Bangalore Civil and Military Station, and renounced all jurisdiction in the lands so assigned. The Instrument of Transfer of 1881 was superseded by a Treaty concluded between the British Government and the Maharaja on November 26, 1913, but no material change was effected so far as the exercise of jurisdiction was concerned. The area compromised in the Civil and Military Station of Bangalore remained part of the territory of Mysore see In re Hayes (( 1888) I.L.R. 12 M. 39.). It is unnecessary to refer to the manner in which His Majesty exercised the rights of jurisdiction so ceded to him before the year 1920. The area compromised in the Civil and Military Station of Bangalore remained part of the territory of Mysore see In re Hayes (( 1888) I.L.R. 12 M. 39.). It is unnecessary to refer to the manner in which His Majesty exercised the rights of jurisdiction so ceded to him before the year 1920. In that year, in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 3902, which was made under the Foreign Jurisdiction Act, 1890, the Governor-General in Council was pleased to provide for the administration of civil justice within the Civil and Military Station of Bangalore by establishing (by s. 1) a District Court within the meaning of the Code of Civil Procedure, 1908 (V of 1908), as applied to the said Civil and Military Station, to be presided over by a District Judge appointed by the Governor-General in Council, with jurisdiction extending (subject as therein mentioned) to all original suits and proceedings of a civil nature, and (s. 4) by providing that appeals from the decrees and orders of the District Court should, when such appeals were allowed by law, lie to the Resident in Mysore, who should exercise the powers of a High Court for all purposes whatsoever connected with the administration of civil justice within the said Civil and Military Station. These courts, which were thus established, continued to exercise their prescribed jurisdiction on behalf of His Majesty until the events which will shortly be narrated. The law that they administered included divers enactments which by notifications given under the Indian (Foreign Jurisdiction) Order in Council 1902, were made applicable to the Station. These enactments included the Indian Code of Civil Procedure, which prescribed the conditions under which an appeal might be brought to His Majesty in Council. After the Government of India Act, 1935, came into force, further Order in Council was made, by which in effect the existing system was preserved and continued. It is unnecessary to refer to its terms. On July 18, 1947, the Indian Independence Act, 1947, received the Royal Assent. After the Government of India Act, 1935, came into force, further Order in Council was made, by which in effect the existing system was preserved and continued. It is unnecessary to refer to its terms. On July 18, 1947, the Indian Independence Act, 1947, received the Royal Assent. By that Act it was provided that as from August 15, 1947, which was called "the appointed day," two independent Dominions should be set up in India, to be known respectively as India and Pakistan, and by s. 7, sub-s. 1, it was enacted that as from the appointed day (a) His Majestys Government in the United Kingdom had no responsibility as respects the government of any of the territories which immediately before that day were included in British India, and (ft) (more relevant to the present appeal) the suzerainty of His Majesty over the Indian States (which (include the State of Mysore) should lapse Law Rep. 77 Ind. App. 116 ( 1949- 1950) Gajambal Ramalingam V. Rukn-Ul-Mulk Syed Abdul Wajid 239 and with it all treaties and agreements in force at the date of the passing of that Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise. By s. 9, sub-s.1, the Governor-General was required by order to make such provisions as appeared to him necessary or expedient (inter alia) (a) for bringing the provisions of the Act into effective operation. On July 26, 1947, a notification was issued by the Crown Representative under the authority of the Indian (Foreign Jurisdiction) Order in Council, 1937. By this notification, which recited that the jurisdiction theretofore exercised by the! On July 26, 1947, a notification was issued by the Crown Representative under the authority of the Indian (Foreign Jurisdiction) Order in Council, 1937. By this notification, which recited that the jurisdiction theretofore exercised by the! Crown Representative in the area known as the Civil and Military Station, Bangalore, would with effect from July 26, 1947, be restored to His Highness the Maharaja of Mysore, save for that portion thereinafter described as the Military and Railway areas contained in the boundaries set out in the schedules thereto annexed, the Crown Representative was pleased to direct that with effect from July 26, 1947, all notifications issued under the Indian (Foreign Jurisdiction) Order in Council, 1902, or under the Indian (Foreign Jurisdiction) Order in Council, 1937, whereby specific provision was made for the said area whether, for making of laws for, or administration of laws for, or the application of laws to, the said area, or for the administration of justice therein or otherwise should be cancelled save in so far as the said military and railway areas were concerned. It appears to their Lordships that, in view of the provisions of the Indian Independence Act, 1947, and of the notification to which they have last referred, the jurisdiction formerly exercised by His Majesty in or in relation to that part of the territory of the State of Mysore which was known as the Civil and Military Station, Bangalore, came to an end. The Courts of the District Judge and of the Resident ceased to exist. His Majesty was neither the fountain of justice nor had any executive authority in the former Civil and Military Station of Bangalore. In that area, as in the rest of the State of Mysore, the Maharaja alone had sovereign powers, and it was for him to make such laws as he thought fit for the administration of justice in his territory. Reference will be made to the laws which he in fact made, but that cannot be regarded as con ferring on His Majesty in Council any jurisdiction. It was urged on behalf of the appellants that His Majesty had at least the power to hear an appeal from an order made by His Court before retrocession. Reference will be made to the laws which he in fact made, but that cannot be regarded as con ferring on His Majesty in Council any jurisdiction. It was urged on behalf of the appellants that His Majesty had at least the power to hear an appeal from an order made by His Court before retrocession. But the hearing of an appeal by this Board, whose duty it is to advises His Majesty, is no more than the preliminary which justice demands to the exercise of jurisdiction. Their Lordships humbly report to His Majesty what order should in their opinion be made and His Majesty is, in the familiar language of an Order in Council, pleased to approve thereof and to order that the same be punctually observed, obeyed and carried into execution, and the judges of the court from which the appeal is brought and all other persons whom it may concern are required to take notice thereof and to govern themselves accordingly. It is with a view to such an Order in Council being made and on the footing that when made His Majesty has executive authority to order its enforcement, that an appeal is entertained. His Majesty having renounced and surrendered his jurisdiction, their Lordships do not think it proper to hear an appeal and report to His Majesty what order it might in other circumstances have been proper to make. It has been said that after the retrocession the Maharaja of Mysore made laws in regard to the administration of justice in his territory. The appellants relied on certain of them and reference will accordingly be made to them. On August 47 1947, he promulgated Act No. XXIII of 1947, entitled The Retrocession (Application of Laws) Act, 1947," by which, after reciting that the jurisdiction theretofore exercised by the Crown Representative in the Bangalore Civil Station, the Railway Lands Law Rep. 77 Ind. App. The appellants relied on certain of them and reference will accordingly be made to them. On August 47 1947, he promulgated Act No. XXIII of 1947, entitled The Retrocession (Application of Laws) Act, 1947," by which, after reciting that the jurisdiction theretofore exercised by the Crown Representative in the Bangalore Civil Station, the Railway Lands Law Rep. 77 Ind. App. 116 ( 1949- 1950) Gajambal Ramalingam V. Rukn-Ul-Mulk Syed Abdul Wajid 240 and the Indian Institute of Science Area, Bangalore, had been restored to His Highness the Maharaja and it was necessary to provide for the application of laws to the retroceded area, it was (inter alia) enacted by s. 3 that except as thereinafter provided in that Act (a) all laws in force in the Civil and Military Station immediately prior to the date of retrocession should from that date continue to have effect and be operative in the retroceded area, and (6) that the laws in force in Mysore on August 2, 1947, should not apply to the retroceded area, and by s. 4 that any enactment in force in the Civil and Military Station which was applied to the retroceded area under s. 3 should apply as if (inter alia) references therein to the Court of the Resident were to the High .Court of Mysore. By Act XXIV of 1947, entitled “The Retrocession (Transitional Provisions) Act, 1947," and promulgated on the same day, after reciting that the jurisdiction theretofore exercised by the Crown Representative as mentioned in Act XXIII had been restored to His Highness the Maharaja and it was necessary to provide for transitional arrangements in respect of proceedings in courts, and other matters thereinafter appearing, provision was made in regard to all proceedings then pending in civil or criminal courts in the Civil and Military Station, including appeals, and by s. 8 it was enacted as follows Any decision of His Majesty in Council given in an appeal now pending before His Majesty shall be effective in Mysore. Finally, after at least three further Acts in 1947, by Act No. 57 of 1948, the retroceded Area Application of Laws Act, 1948, His Highness the Maharaja was pleased to enact by s. 1 that that Act should extend to the whole of Mysore and should come into force on August 15, 1948, thereinafter called the appointed day. Finally, after at least three further Acts in 1947, by Act No. 57 of 1948, the retroceded Area Application of Laws Act, 1948, His Highness the Maharaja was pleased to enact by s. 1 that that Act should extend to the whole of Mysore and should come into force on August 15, 1948, thereinafter called the appointed day. Section 2 contained divers definitions, including that of Civil and Military "Station" as "the area comprised within the boundaries of the Civil and Military Station, Bangalore, prior to the 19th day of July, 1947," and of Retroceded Area as the Bangalore Civil Station, the Railway Lands and the Institute of Science Area," and law as including act and any regulation, rule, byelaw, notification or order having the force of law." Section 3 provided that except as thereinafter provided all laws in force in Mysore should apply to the retroceded area, and the laws in force in the retroceded area immediately before the appointed day should not from that day have effect or be operative in the retroceded area. Sections 4 and 5, by way of modification of the generality of s. 3, provided what enactments, and with what modifications and restrictions, should apply and remain in force in the retroceded area. Section 6 and the succeeding sections made further provision for the application and interpretation of such enactments and by s. 11 the Act XXIII of 1947 already cited was repealed. The precise meaning and effect of those enactments and, in particular, of s. 8 of Act XXIV of 1947, on which the appellants relied, are not in all respect easy to determine nor would it be proper for their Lordships to attempt to do so. It is sufficient for them to say that, however they may be interpreted by the courts of Mysore, they cannot be effective to create and vest in His Majesty in Council a jurisdiction which he has expressly surrendered and renounced. At the second hearing of the appeal the Board had the assistance of a learned Madras pleader, Mr. It is sufficient for them to say that, however they may be interpreted by the courts of Mysore, they cannot be effective to create and vest in His Majesty in Council a jurisdiction which he has expressly surrendered and renounced. At the second hearing of the appeal the Board had the assistance of a learned Madras pleader, Mr. Padmanabhan, who, on behalf of the appellants, urged on their Lordships that the jurisdiction of His Majesty in Council still subsisted and, without repeating the arguments already referred to, founded his plea largely on the proviso to s. 7, sub-s. 1, of the Indian Independence Act, 1947, the orders made by the Governor-General under the same Act, and the Instrument of accession and the Supplementary Instrument signed by the Maharaja of Mysore and accepted by the Governor-General He was, however, constrained to admit that, ultimately, the validity of his plea rested on the view that the words in the proviso in question other like matters were apt to cover and include the jurisdiction of His Majesty in Council to entertain an .appeal from the Court of the British Resident in Mysore. It appears to their Lordships that these words are not remotely susceptible of any such meaning. Accordingly, while they have given careful consideration to the several further matters which have been brought to their notice, they find nothing in them which would justify a change in the view that they had previously formed that €his appeal cannot be entertained.