Mrs. Arathi Narayan vs Mr. M.D. Balakrishna and Others

This is an appeal u/s 4 of the Karnataka High Court Act, 1961 [for short ''High Court Act'']. The first Defendant in a testamentary original suit No. 2 of 2006 on the file of this Court is the Appellant in this appeal.

The appeal is directed against the order passed by the learned single Judge of this Court exercising original jurisdiction and trying the testamentary suit and against the order passed on IA No. 3 of 2007 in the suit which was an application under Order XIV Rules 2 and 5 read with Section 151 of the Code of Civil Procedure, 1908 [for short ''the code''].

The suit by the first Respondent herein - Plaintiff in the suit is to seek probate of a Will dated 15.04.2004 said to have been executed by one M.D. Narayan who it is averred died on 19.10.2005 at the age of 77 years at Houston, Texas, United States of America. The certificate of death issued by the authorities in the city of Houston is sought to be placed in the probate petition as Annexure-C to the petition. It is also pleaded that the deceased person had a residence at No. 60, 9th Main Road, 6th Cross, RMV Extension, Bangalore - 560 080, and was permanently residing at this place. It is also revealed from the facts as contained in the probate petition that the deceased person had been married to one Smt. Rukmini Dasappa: that the marriage between them was dissolved as per the order dated 04.06.1970 passed in MC No. 19 of 1970 on the file of the civil Judge at Bangalore and out of the wedlock the couple had one daughter - the first Respondent in the petition and first Defendant in the suit.

The probate petition also reveals that the Petitioner/Plaintiff had been appointed as executor of the Will sought to be probated and that he is the brother of the deceased person. The further averments are that the Respondents 2 to 6 are sisters of the deceased as well as the Petitioner. A few more facts indicated in the probate petition are that said Rukmini Dasappa had subsequent to the dissolution of the marriage married one Sri. H.G.V. Reddy and the first Respondent grew up with them.

It is also the averment that in the circumstances the first Respondent did not reside with late M.D. Narayan after the dissolution of his marriage with Smt. Rukmini Dasappa.

Further facts pleaded are that the deceased person had executed a Will on 15.04.2004 in the presence of the attesting witnesses and that was the last Will and testament of the deceased person; that under the Will the deceased person had distributed his properties in India and abroad amongst the Respondents and the Petitioner and the executor of the Will had sought for grant of probate of the Will so that the Petitioner can give effect to the wishes of the testator in accordance with the terms of the Will.

The petition also expressly aver that the deceased person was not only a permanent resident at Bangalore but he was also domicile at Bangalore. The schedules to the petition gave details of the properties, movables and immovable and Will was sought to be probated with the undertaking that the properties will be administered in accordance with the wishes of the testator.

On issue of notice to the petition, the first Respondent who had entered appearance on caveat also filed objections, inter alia, pleading that the first Respondent is the sole legal heir to the estate of the deceased being the only daughter of the deceased; that on learning that her father was ill and had been hospitalized in Houston, the first Respondent who was living in Chicago went to Houston and attended to her father during his illness and that her father succumbed to illness, died on 19.10.2005 at Houston; that the Petitioner had also visited the deceased person at the hospital in Houston on 14.10.2005 and that the Petitioner had informed the first Respondent on inspection of the apartment where the deceased was living in Houston, he had not found any Will or last testament and that he had also not left last Will and testament and in this view of the understanding of the first Respondent, the deceased had died intestate on 19.10.2005; that the first Respondent for the first time is apprised that a Will had been executed by her father when she had come to India in connection with the observation of the uaikunta samaradhana and she was informed that the Will of the deceased will be read out on 05.11.2005; that on 05.11.2005, the document purported to be the Will of the deceased and allegedly made on 15.04.2004 was read out by the Advocate practicing at Bangalore in the presence of large number of family members of the deceased including the Petitioner and all the Respondents and also her uncles and unattested copy of the Will was handed over to the first Respondent by the Advocate who had read out the so called Will. The first Respondent objected to the genuineness of the document presented as the Will of the deceased that did not bear the true signature of the deceased and does not reflect the wishes of the deceased in the matter of bequeathal of the estate. The first Respondent had through her source obtained expert opinion as to the genuineness of the signature on the document claimed to be the Will of the Testator and had learnt that it was not so and the signature had been compared to some other document containing the signature of the deceased.

In the circumstances, the first Respondent contested the genuineness of the Will and that under the alleged document of the deceased person was sought to be disseminated to a considerable extent and in the circumstances prayed for dismissal of the probate petition with costs.

It is in the wake of such pleadings as averred in the petition and as averred in the statement of objections filed by the first Respondent the probate proceedings was converted to a testamentary original suit and is being tried as such. The probate civil petition was ordered to be converted into a testamentary original suit.

This Court framed the following issues on 06.07.2007 which read as under:

Whether the Plaintiff proves that the Will dated 15.04.2004 produced along with this petition and marked as Annx.D is the last Will and testament of Sri. M.D. Narayan and the same has been duly executed by him.

Whether the market value of the estate of Sri. M.D. Narayan has been valued and court fee paid is sufficient.

The first Defendant was permitted to amend her written statement in terms of the order dated 12.10.2007 and on filing of the amended written statement, consequently this Court permitted to the Plaintiff to file rejoinder to the amended written statement and the Plaintiff filed two rejoinders. The first rejoinder was after the written statement was amended and additional issue having been framed on 22.11.2007 of the amended written statement, as under:

Does Defendant No. 1 prove that the suit is barred by resjudicata.

It appears the additional rejoinder was filed on 14.02.2008 with which we are not very concerned as the order appealed against is the order dated 6.12.2007 passed by the learned single Judge of this Court on the application as referred to above.

In the application, the first Defendant prayed for not only framing the question of the suit being barred as an issue but also that it should be tried as a preliminary issue.

In the affidavit supporting the application it was pleaded, inter alia, that the Petitioner had instituted a petition for grant of probate before probate court No. 1 of Harris County in the city of Houston, Texas, United States of America, seeking probate of the very document claimed as last Will and testament of the deceased person executed on 15.04.2004 and in the said petition before the foreign court, the Plaintiff had pleaded as under:

a. the deceased, died m Houston on 19 October 2005:

b. that the Court at Houston had jurisdiction to hear and try the probate petition since the deceased had domicile in and died at Harris County in which county the City of Houston is situated:

c. the original of the disputed Will was deposited by the Plaintiff before this Hon''ble Court in Probate C.P. No. 17 of 2005;

d. that in the event the deceased died intestate I would be the only heir entitled to inherit the estate of the deceased.

It is also further stated that at the request of the Plaintiff, the probate matter before the foreign court went to trial before a jury and on conclusion of the trial before the jury as on 05.07.2007, the members of the Jury having examined the evidence let in by the parties and with the first Defendant also having let in evidence by examining two handwriting experts from the United States of America as against one handwriting expert examined by the Plaintiff and who had come from India, the jury had delivered an unanimous verdict on 05.07.2007 indicating that the alleged Will purportedly left behind by the father of the first Defendant was not a valid and lawful Will; that it had not been signed by the deceased.

It is also stated in the affidavit that the probate court after following further necessary procedures passed the order dated 26.07.2007 allowing motion of the Respondent for judgment in terms of the verdict of the jury and the rejecting the motion of the Plaintiff for redressal of the verdict of the jury.

It is thereafter that the foreign court rendered judgment on 26.07.2007 in consonance with the order of even date and the modified verdict of the jury was recorded. It is stated that the Plaintiff had failed before the foreign court of competent jurisdiction in his attempt to prove the very Will sought to be probated/proved before this Court in the present suit; that as to whether the Will was genuine or forged one was an issue which was directly and substantially was a question in issue in probate petition bearing cause No. 359, 626-401 before the probate court No. l in Harris County, Texas, United States of America and in the wake of these facts and developments, not only the additional issue was relevant for the purpose of trying the testamentary suit but also it should be tried as a preliminary issue.

In the wake of such an application, this Court being of the view that an additional issue does arise, framed the additional issue as per order dated 22.11.2007 and took up the question as to whether the additional issue could be tried as a preliminary issue or otherwise and heard learned Counsel for the parties on the question as to the additional issue should be tried as a preliminary issue or not and passed orders on this question in terms of the order dated 06.12.2007 holding that the court had no jurisdiction to try issue No. 3 as a preliminary issue for the reasons mentioned in the order, particularly, as the answer to issue No. 3 being dependent on answers to disputed questions of facts also and if so the provisions of Order XIV Rule 2 and further Clauses [a] and [b] of Sub-rule [2] of Rule 2 of Order XIV as contained in the Code, do not enable the court to try issue No. 3 as a preliminary issue in the facts and circumstances of the case and particularly as the answer to the issue was also dependent on the issues of facts as well.

In coming to this conclusion, the learned Judge was of the view that the answer to the additional issue being directly dependent on the validity or conclusiveness of the judgment of the foreign court in terms of the provisions of Section 13 of the Code and the question as to whether the judgment is conclusive or otherwise in terms of the exceptions enumerated in Clauses [a] to [f] of Section 13 and in answering as to whether the case is covered and in one of the exceptions the court necessarily being required to go into the questions of fact and therefore the additional issue, namely, as to whether the court had jurisdiction to try the suit in the wake of the principles of res judicata being made dependent on the answers to such disputed facts also, the provisions of Clauses [a] and [b] of Sub-rule [2] of Rule 2 to Order XIV of the Code did not enable the court to try it as a preliminary issue in which event it is as though the court has no jurisdiction to try the issue as a preliminary issue and therefore to this extent the application has to be rejected.

It is this order of the learned single Judge which is in appeal before us.

We have heard Sri. Aditya Sondhi, learned Counsel for the Appellant, Sri. Raghavan, learned senior Counsel appearing for the first Respondent, Sri. Prakash, learned Counsel appearing for Respondents 2 to 6.

Submissions on behalf of the Respondents are all in common.

Appearing on behalf of the Appellant, Sri. Aditya Sondhi, learned Counsel would contend that the learned single Judge is in error in taking the view that the court lacked jurisdiction to try the issue as a preliminary issue; that this Court does have jurisdiction to try the issue as a preliminary issue even as enabled under the provisions of the Code, particularly, as under the provisions of Order XIV Rule 2(2][b| of the Code and as the answer to the additional issue could have satisfactorily disposed of the suit, the issue must have been necessarily tried as a preliminary issue and should not have been relegated to be tried along with other issues framed in the suit.

It is submitted in this regard that the facts and developments of the case and the conduct of the very Plaintiff and even on the admitted version of the Plaintiff and on the judgment in the foreign court, the suit for probating the so called Will of the deceased M.D. Narayan is barred by the principles of res judicata as found in Section 11 of the code; that the question was as to whether the suit is barred by the principles of res judicata; that when the provisions in the Code specifically enabled the court to frame the issue as a preliminary issue in the circumstances mentioned in Clauses [a] and [b] of Sub-rule [2] of Rule-2 of Order XIV of the Code, it. was incumbent upon the court to examine this question even assuming that it is in the discretion of the court to try an issue as a preliminary issue but rejecting the request at the threshold on an erroneous understanding that the court lacked jurisdiction to try the issue as a preliminary issue in the wake of the issue being inter linked with questions of facts and therefore rejecting the application is clearly a finding untenable in law; that it virtually defeats the very purpose of the enabling provision; that even on the admitted facts and circumstances and even on such of those facts which are either not in dispute or which cannot be disputed by the Plaintiff on his own plea taken before the foreign court, the only question was as to the issue of law which in turn could have been satisfactorily decided even on the available material and on the legal position and therefore not examining the requirement to try the issue as a preliminary issue from this background but rejecting the request on the erroneous assumption that the court lacked jurisdiction to try the same as a preliminary issue is an order not tenable in law, requires to be set aside and the application allowed.

As Sri. Raghavan, learned senior Counsel appearing for the Respondent No. l has raised a preliminary objection regarding the maintainability of the very appeal even in terms of Section 4 of the Act, we have heard Sri. Raghavan, learned senior Counsel on the preliminary objections and thereafter we have heard learned Counsel on the merits of the matter also.

In so far as the preliminary objection is concerned, submission of Sri. Raghavan, learned senior Counsel is that the very appeal is not maintainable in the wake of the provisions of Section 4 of the High Court Act and when the enabling appeal provision u/s 4 of the High Court Act is examined in the background of the controlling provisions of Sections 94 and 104 of the Code, it is submitted that it is settled on authority of law and learned Counsel having placed reliance on the following decisions:

� Commissioner of Customs and Central Excise v. Hongo India (P) Ltd. (2009) 5 SCC 791,

� Umaji Keshao Meshram and Others Vs. Radhikabai and Another, ,

� Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, ,

� Major S.S. Khanna Vs. Brig. F.J. Dillon, ,

� Tammanna and Ors. v. Miss Renuka and Ors. ILR 2009 KAR 1209

submits that the provisions of Section 4 of the High Court Act by itself does not enable any person to maintain an appeal unless appeal u/s 4 of the High Court Act is backed by a corresponding appellate provision under any other statute out of which a proceeding may arise. In other words, submission is that the appellate jurisdiction u/s 4 of the High Court Act which is a procedural aspect, Section 4 of the High Court Act is to be supported by a substantive right of appeal as found in any other enactment and such an enactment enabling the maintenance of an appeal.

It is submitted that while it is not in dispute that the probate proceedings are proceedings originating under the Indian Succession Act, 1925 [for short ''the Act''] and referable to Sections 264 to 299 of the Act, the enabling provision to exercise the very jurisdiction by the High Court is to be found in Section 300 of the Act and Section 300 conferring the very jurisdiction of the District Court on the High Court also the jurisdiction that is being exercised by the High Court in probate proceedings is, though later on contest is being converted into a testamentary original suit, is a power exercised by the High Court with reference to the provisions of Sections 264 to 300 of the Act and until and unless an appeal is enabled under the Indian Succession Act against an order appealed against as in the present case, Section 4 of the High Court Act by itself does not sustain an appeal of the present nature, 29. Sri. Raghavan, learned senior Counsel appearing for the Respondent has therefore contended that the appeal as presented purporting to be u/s 4 of the Karnataka High Court Act, 1961 [for short, the High Court Act] is not maintainable and therefore no further questions need be examined.

Elaborating the submissions, Sri. Raghavan, urged that the appeal originates from the order passed in a testamentary suit which itself is a development to the consequence of a probate proceedings for probating a will on contest, getting converted into a testamentary suit. It is, therefore, submitted that the procedure for trying the suit being governed by the provisions of CPC and more so an application filed under Order XIV Rules 2 and 5 Code of Civil Procedure, which is governed by the corresponding provisions of CPC itself for the purpose of filing of an application against an order passed under this provision of law and for such other purpose. It is pointed out that the application is one not only for framing an additional issue, but also to try that additional issue as a preliminary issue and therefore for the purpose of filing of an appeal against an order of the present nature, as appealed in this appeal, and that the suit proceedings being still inconclusive, an order passed at this stage, is only a mere order not resulting in any decree, an appeal against such an order is enabled under the provisions of the Code only i.e. under the provisions of Order XLIII Rule 1 CPC and if an appeal is not tenable in terms of this provision of law, no appeal can be filed.

Learned senior Counsel would draw our attention to the provisions of Order XLIII Rule 1 CPC and with reference to the provisions of Section 104 Code of Civil Procedure. A reading of Section 104 of the Code would lay emphasis on the last part of Sub-section (1) of Section 104 Code of Civil Procedure, indicating that an appeal shall not lie against any orders, unless enabled under the provisions of the Code itself and or to any law for the time being in force, and submits that the provisions of Order XLIII Rule 1 CPC having not enabled an appeal against an order passed on an application under Order XIV Rule 2 Code of Civil Procedure, under any one of the enumerated Clauses (a) to (w) of Order XLIII Rule 1 Code of Civil Procedure, an appeal under CPC against an order of the nature of the appealed against in this appeal, definitely does not lie.

Sri. Raghavan would submit that while this is one part of the argument, the other part is to be found with reference to the proceedings of the Act itself, as the probate proceedings, which in turn has become a testamentary suit on contest, is a proceeding under the Act and in this Act, attention is drawn to Section 299 of the Act and submits that an appeal as contemplated u/s 299 of the Act is only an appeal against a final order passed by the district court and while an appeal against an order at an interlocutory stage of a pending suit, passed during the pendency of the proceedings in the testamentary suit is not expressly provided under the provisions of the Act and on the other hand, an appeal of this nature filed against an order passed on an application under Order XIV Rule 2 Code of Civil Procedure, having not been expressly barred u/s 104 read with Order XLIII Rule 1 Code of Civil Procedure, no appeal is contemplated against an order passed on an application under order XIV Rule 1 either under the Code or under the Act.

It is in this background, the learned senior Counsel would like us to examine the provisions of Section 4 of the High Court Act. With reference to Section 4 of the High Court Act, Sri Raghavan would submit that Section 4 by itself does not provide for filing of an appeal, but it is only an enabling provision, enabling an appeal to a Division Bench of this Court against an order passed by a single Judge, exercising original jurisdiction and therefore submits that unless an enabling provision for filing an appeal is to be found either in the Code itself or as is possible in the present situation, under the Act, Section 4 of the High Court Act by itself does not enable an appeal being maintained before a Division Bench of the High Court against an order passed by a Single Judge. Based on such premise, further submission is that an appeal being a creature of a suit, only if it is so provided and enabled under any of the statutory provisions, no litigant can come up in appeal as a matter of right and therefore would submit in this background that Section 4 of the High Court Act being not in the nature of sui generis provision and parasitic on an enabling provision under CPC or the Act and being a support by either of these two enactments, an appeal is not at all tenable and therefore this appeal should be rejected at the threshold.

in support of the submission, Sri. Raghavan would place strong reliance on the judgment of the Supreme Court in the case of Commissioner of Customs and Central Excise v. Hongo India Private Ltd. (2009) 5 SCC 791, by drawing attention to paras 1, 10 and 18 of this judgment, would urge that even assuming for argument''s sake, an appeal can be maintained u/s 4 of the High Court Act against an order passed by a Single Judge exercising original jurisdiction in a situation where no other statutory provisions are applicable, but in the present case, the proceedings having arisen under the Act and to the extent of being governed by the provisions of the Act, while an enabling provision for filing an appeal under the Act always be made use of and if there is no enabling provision one has to necessarily to look into the supporting provision of the CPC and if under the provisions of the Code, there is a bar for filing an appeal against the order of the present nature, as is to be found in the provision of Section 104 read with Order XLIII Rule I CPC as in the light of the ratio of judgment of the Supreme Court in the Hongo India Pvt. Ltd. case [supra], such a provision in the Code would prevail over the provisions of the High Court Act, an appeal u/s 4 of the High Court Act cannot be independently maintained by giving a go-by to the provisions of Section 104 read with Order XLIII Rule 1 Code of Civil Procedure, is the submission of Sri. Raghavan, learned Senior Counsel for 1st Respondent.

Sri. Raghavan would also place reliance on the decision of a Larger Bench of this Court in the case of Tammanna and Others Vs. Miss Renuka and Others, to submit that the provision of Section 4 of the High Court Act has to necessarily yield to the provisions of Section 104 read with Order XLIII Rule I Code of Civil Procedure, which can be compared to Section 8 of the High Court Act. Learned senior Counsel would submit that in the light of the findings on relevant question examined by the Larger Bench in this case, and submits that the provisions of Section 104 read with Order XLIII Rule 1 CPC yielded necessarily to the provision over Section 4 of the High Court Act, and if Section 4 yields to the provisions of Section 104 read with Order XLIII Rule 1 Code of Civil Procedure, then there is no way for the appeal being maintained in law. It is therefore urged that the appeal should be dismissed at the threshold.

Sri. Raghavan would join issue on the merits of the appeal to submit that the issue as sought to be raised by the Defendants cannot, be made subject matter for determination as a preliminary issue in terms of the provisions of Order XIV Rule 2 Code of Civil Procedure, particularly, as the provision of Sub-clause (2) of Rule 2 of Order XIV CPC enables an issue to be tried as a preliminary issue only in a situation where any suit involving law issues and facts and the answer to the issue of law relating to the two situations mentioned in Sub-clauses (b) and (c) are attracted, and if the court is fully satisfied that it should be tried as a preliminary issue being an issue of law and the answer on which issue is capable to bring the suit to an end and even without the need for examining the issues of fact, then alone it should be tried as a preliminary issue and submits in the present context that the question as to whether the suit is barred by principles of res judicata in terms of Section 11 of the Act, does not even arise as in the case of a foreign judgment, whereas the provisions of Section 11 are not even attracted, it is only the provisions of Sections 13 and 14 which are attracted and without conceding, but assuming for argument''s sake that Section 11 is also attracted, even then, the question as to whether the suit is barred by principles of res judicata being in turn depending on the answer to the question as to whether a foreign judgment as is relied upon by the Defendant in this case, conclusive nature of which is disputed and is required to be decided and answered by this Court, and for the purpose of answering this question, the court necessarily being required to examine the further question as to any one of the situations enumerated in Clauses (a) to (f) of Section 13 are attracted and for answering such questions there necessarily being need for examining the disputed questions of fact and therefore in any event answer to the issue as to whether the suit is barred by the principles of res judicata being in turn depending on the further question of conclusiveness of the foreign judgment relied upon by the Defendant and that in turn being depends on the disputed questions of fact, which in fact made good in a full-fledged trial and the issue regarding applicability of Section 11 and bar u/s 11 cannot at all be tried as a preliminary issue. It is in support of this laboured contention, Sri Raghavan would place reliance on the following judgments of the Supreme Court:

� Major S.S. Khanna Vs. Brig. F.J. Dillon, ,

� Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, ,

� Abdul Rahman Vs. Prasony Bai and Another,

Elaborating the submission, Sri. Raghavan would submit that in terms of Section 299 of the Act, an appeal is provided for from the district court to the high court and it is in the nature of an inter-court appeal. Section 299 only enables an appeal from district court to the high court on the culmination of the probate proceedings and where the proceedings are before district court or high court, in so far as the enabling provision of passing interlocutory orders is to be found in terms of Section 269 of the Act and if at all an order passed u/s 269 can be sought to be an order passed in exercise of jurisdiction conferred under the provisions of the Act. The corollary of this submission is that the district court or the high court while examining an application of the nature not covered u/s 269 of the Act, is enabled only under the provisions of the Code particularly for conferring jurisdiction on the courts for passing such orders in terms of Section 94 of the Code. It is submitted that an application under Order XIV Rule 2 CPC is an application which is supported by substantive provision of Section 94 Code of Civil Procedure, providing for supplementary proceedings in the civil court.

With reference to exercise of jurisdiction u/s 94 of the Code, it is pointed out that as against orders passed by courts in exercise of its original jurisdiction, the enabling provision for filing an appeal is to be found in Section 104 of the Code and Section 104 of the Code read with Order XLIII Rule 1 envisages the filing of appeals against the orders passed on applications filed under the different provisions enumerated in Order XLIII Rule 1 and the provisions of Order XLIII Rule 1 has specifically debarred filing or maintaining of an appeal in respect of any other type of orders not traceable to an application under any other clauses of Order XLIII Rule 1 CPC reading out the omissions and deletions.

It is pointed out that an application under Order XLIII Rule 2 CPC and an order passed on such application is while not an order enabling under Order XLIII Rule 1 CPC to limit or restrict the words for preventing an appeal being filed against an order passed on an application otherwise than under the Clauses (a) to (w) of Order XLIII Rule 1 Code of Civil Procedure, is to be found in Section 104 of the Code, which reads as under:

Orders from which appeal lies

(1). An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(ff). an order u/s 35A;

(ffa). an order u/s 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be:

(b). an order u/s 95;

(h). an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i). any order made under rules from which an appeal is expressly allowed by rules:

Provided that no appeal shall lie against any order specified in Clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

(2). No appeal shall lie from any order passed in appeal under this section.

It is therefore submitted that while Section 299 of the Act, which is an enactment under which the provisions are maintained, while does not expressly provide for an appeal, particularly an intra-court appeal against an order at an interlocutory stage of probate proceedings and the provisions of Section 94 of the Code, which enables passing of orders at the interlocutory stage of the probate proceedings, other than under the provisions of Section 269 of the Act, is only to be found in Section 94 CPC and if so, the corresponding appellate provision can only be found in Section 104 of the Code and the restrictions placed against filing of appeals enabled u/s 104 read with Order XLIII Rule 1 CPC equally applies to an appeal, if has to be maintained against an order passed on an interlocutory stage of the probate proceedings, even when pending before the high court and if it is against an order of the nature of an application other than enumerated nature of applications under Order XLIII Rule 1 Code of Civil Procedure, then such an appeal is expressly prohibited. It is submitted that the appeal therefore is not maintainable.

Sri. Raghavan has also made further submissions with regard to the scope of Section 4 of the High Court Act, contending that Section 4 is not a substantive provision, is only a procedural provision. An appeal in terms of Section 4 of the High Court Act, which is procedural in nature, to be made active or effective has to be necessarily supported from outside by any substantive appellate provision, and such a provision having not been provided under the Act and having been expressly prohibited under the Code, the appeal cannot be maintainable at all and therefore the appeal should be dismissed at the threshold as not maintainable.

Even with regard to the scope and extent of the appellate jurisdiction exercised by the High Court u/s 4 of the High Court Act, Sri. Raghavan has drawn our attention to the authorities that have developed in this background. On a comparison being made by the Apex Court between the nature and powers of the appellate jurisdiction when exercised under the Letter Patent and when exercised under the statutory provisions governing a high court other than under the Letter Patent.

Relying on the decision of the Supreme Court in the case of Umaji Keshao Meshram (Supra), submission is that while examining the scope of an intra-court appeal, enabled under a Letter Patent, the test is as to whether the appellate jurisdiction conferred in terms of the Letter Patent provision, has been expressly excluded under a statutory provision and on the contrary when examining the scope of the exercise of appellate jurisdiction in the context of a statutory enactment, as in the present case the High Court Act, the test is as to whether any other statutory provision to which is attributed the proceedings, where an appeal is enabled under the respective statutory provision. It is submitted that even then, the test is to be applied, the question as discussed above answers itself in the negative i.e. the Act not having enabled an appeal in the present nature and even under the Code, such an appeal having expressly been debarred, the provisions of Section 4 of the High Court Act are rendered ineffective and the appeal cannot be maintained and therefore the appeal has to be dismissed.

In this background, one another submission of Sri Raghavan, learned senior Counsel appearing for the first Respondent, is that the appeal being a creature of statute and when neither the statutory provisions viz., the Act nor the Code having enabled an appeal of the present situation, and Section 4 of the High Court Act being a mere procedural or machinery provision, the appeal does not lie.

Answering these contentions, submission of Sri. Aditya Sondhi, learned Counsel for the Appellant is that the examination cannot be as submitted or highlighted by the learned senior Counsel appearing for the first Respondent; that the approach to the tenability or otherwise of an appeal u/s 4 of the High Court Act is not precisely so. It is submitted that the postulate of Section 4 of the High Court Act is a mere procedural provision in itself is fallacious. It is submitted that Section 4 of the High Court Act in itself is a substantive provision, which enables filing of an appeal in so far as the orders passed by a learned single judge of this Court exercising original jurisdiction are concerned. By drawing attention to Section 4 of the High Court Act, which reads as under:

Appeals from decisions of a single Judge of the High Court - An appeal from a judgment, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court.

learned Counsel would submit that the provision while enables the filing or maintaining of an appeal from the judgment, decree, order or sentence passed by a learned single judge in the original jurisdiction of the High Court under this Act or any other law for the time being in force, to the Division Bench, it is submitted that an appeal u/s 4 envisages within its scope the exercise of jurisdiction by the high court under any law for the time being in force, and even in a situation where the high court exercises an appellate jurisdiction i.e. an appeal of the nature referred to in Section 4, an appeal from the learned single judge to the Division Bench, it is to be treated on par with the exercise of original jurisdiction by the high court itself.

It is also submitted that while Section 4 of the High Court Act does not make a distinction between a final order or an order passed at an interlocutory stage, and does not expressly debar or prevent, an appeal being maintained against an order passed at an interlocutory stage, Section 299 of the Act also does not expressly debar an appeal against an order passed at an interlocutory stage, in the sense, that no express prohibition is to be found in Section 299 in respect of the orders on interlocutory applications.

It is further submitted that examination of the right of appeal as provided u/s 299 of the Act is not a background of the possibility of an inter-court appeal or intra-court appeal, but it is a provision for conferring a right of appeal and if right of appeal is to be provided for, it has to be effectuated, whether Section 299 of the Act has provided an appeal from the district court to high court or when the proceedings originate in the high court itself and for effectuating the provision of Section 299, Section 4 can aid and further right of appeal u/s 299 of the Act, it has to be necessarily done so and there being no distinction made in Section 299 between an order passed at the interlocutory stage and final stage, the appeal u/s 4 even against an order passed at the interlocutory stage of probate proceedings definitely enabled u/s 299 of the Act and not in any way detracted u/s 4 of the High Court Act. Further submission in this background is that Section 299 of the Act while no doubt is a substantive provision conferring right of appeal, Section 4 of the High Court Act only further effectuates that right of appeal and no way detract, it is a misnomer to read Section 4 as a mere procedural provision, just because other substantive provision also have enabled an appeal being maintained in respect of proceedings originated under the respective enactment.

It is therefore submitted that application though might have been filed under Order XIV Rule 2 Code of Civil Procedure, is not exclusively an application attributable to the provisions of the Code and gets support basically from Section 300 of the Act and though for the purpose of procedure etc., the provisions of the Code might have been invoked, it is nevertheless attributable to a proceeding u/s 300 of the Act and the high court being conferred with the concurrent jurisdiction with the district court, the powers of the high court being on par with the power exercised by the district court, the provisions of Section 299 of the Act require to be effectuated, the provisions of Section 94 Code of Civil Procedure, corresponding appellate provision u/s 104 CPC and the restrictions read into, the scope of appeal u/s 104 CPC are not attracted and if when once it is demonstrated that the proceedings do not have its origin to Section 94 and corresponding appellate power u/s 104, no impediment or restriction can be read into the appeal preferred u/s 4 of the Act.

It is in support of these submissions, learned Counsel for the Appellant has drawn our attention to a Full Bench decision of this Court in State of Karnataka v. H krishnappa ILR 1975 KAR 1017, wherein this Court was examining the scope of an appeal preferred u/s 4 of the High Court Act and rejected the contentions raised on behalf of the Respondents in the appeal to the effect that the appeal was not tenable for the reason that the appeal is not against a decree, but was only against an order and if the provisions of first appeal under the Code, which is Section 96, did not enable an appeal against an order but only against a judgment followed by a decree. On like analogue, an appeal cannot be maintained u/s 4 of the High Court Act, if it was not an appeal against the decree supported by a judgment. The Full Bench had occasion to point out that the appellate jurisdiction is available in terms of the section, in all cases of the single judge of this Court passing orders in exercise of original jurisdiction and here again no distinction is made between an order passed at the final stage or order passed at the interlocutory stage of the proceedings before the single judge.

While the strong reliance is placed on this decision of the Full Bench, in support of the submission and being directly on the point, learned Counsel for the Appellant would point out the distinction between an opinion rendered by a Larger Bench of this Court in the case of Thammanna [supra]. Submission in this regard is that while in the case of the Full Bench of this Court in Krishnappa''s case, this Court was examining a question directly in issue viz., the scope of appellate jurisdiction u/s 4 of the High Court Act and indicated it is available whenever a single judge of this Court passes an order in exercise of original jurisdiction.

Examination in the case of Thammanna [supra) was regarding maintainability of the appeal in a situation where this Court exercises jurisdiction under Article 227 of the Constitution of India. It is pointed out that the jurisdiction exercised by this Court, albeit, a Constitutional jurisdiction under Article 227 being supervisory jurisdiction and being in the nature of revisionary jurisdiction, while effectuating the provisions of Section 4 of the High Court Act for maintaining an appeal against an order of such nature, the limitation contained in the Code cannot be overlooked for the purpose of maintaining the appeal and if under the Code the analogous power being u/s 115 of the Code, when a restriction had been imposed in the exercise of revisionary jurisdiction by the high court against orders passed at the interlocutory stage in a pending proceeding, such restrictions should necessarily be read into the exercise of appellate jurisdiction u/s 4 of the High Court Act, when an appeal is sought to be filed against an order passed by the high court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

It is also submitted that while in the case of Thammanna [supra], the Larger Bench of this Court was seized of a question in the context of exercise of its revisional jurisdiction, though the remedy was sought for through an appeal u/s 4 of the High Court Act, but in the present situation, the case being one of a remedy sought for in the appellate jurisdiction as against the order passed in the exercise of original jurisdiction by a single judge of this Court, the opinion rendered by the Larger Bench in the case of Thammanna [supra] has no bearing or application in the present case, but the situation is fully and squarely governed by the view taken by the Full Bench of this Court in the case of Krishnappa.

It is in the background of such contentions and submissions backed by authorities referred to above, the preliminary objection raised by Sri. Raghavan, learned Counsel for the first Respondent is required to be examined.

The appeal itself is per se u/s 4 of the High Court. Act. It is no doubt against the order passed by the learned single judge of this Court at the interlocutory stage of a testamentary suit, but it is a jurisdiction, nevertheless, exercised as part of the original jurisdiction of this Court. The basic requirement u/s 4 of the High Court Act for maintaining an appeal is that the order should have been passed by a single judge in the exercise of the original jurisdiction either as provided for in this very Act or jurisdiction conferred on the high court under any other enactment.

In so far as the argument that Section 4 is mere procedural provision and therefore it necessarily takes us to the provisions of Section 94 and in turn to Section 104 of the Code and particularly as Section 299 of the Act does not enable an intra-court appeal is concerned, the argument does not succeed for the reason that the scope of an appeal u/s 4 of the High Court Act as explained by the Full Bench is a substantive right of appeal and not a mere procedural aspect. If it is not a mere procedural aspect but a substantive right, even u/s 4 of the High Court Act itself and it is a fortiori so in terms of Section 300 of the Act.

A substantive provision under which a proceeding comes to the high court in a probate proceeding, is only u/s 300 of the Act. Of course, u/s 300 of the Act, all other enabling provisions viz., Sections 264 to 299 of the Act are also read into. When the provisions of Section 299 of the Act and Section 4 of the High Court Act are read in combination in this background, in neither provision there being any express bar for maintaining an appeal, it is not at all possible to read in such a restriction by importing it from the restricting provision of Section 104 of the Code.

Reliance placed by Sri. Raghavan, learned senior Counsel for the first Respondent on the judgment of the Supreme Court in the case of Arati Dutta Vs. Eastern Tea Estate (P) Ltd., , which in turn refers to a Division Bench ruling of the Delhi High Court in Gokulchand D. Morarka v. Co. Law board (1973) COM CAS 173 and this view taken by the Division Bench of the Delhi High Court was further in turn referred to by the Full Bench in the case of University of Delhi and Another Vs. Hafiz Mohd. Said and Others, , wherein the scope of an appeal u/s 10(1) of the Delhi High Court Act was being examined, which, according to Sri. Raghavan, is analogues to Section 4 of the High Court Act, does not advance the case of the Respondents for sustaining the preliminary objection to the maintainability of the appeal, for the reason that in the case of H.M. Said [supra] it was not disputed that the appeal was with reference to Section 104 of the Code and if so, in turn with reference to Order XLIII Rule 1 Code of Civil Procedure, the limitation provided or read in Section 104 of the Code automatically applied and therefore the appeal was not maintainable. This decision is not an authority for the proposition that an appeal which has its origin in an enactment other than the Code and being a proceeding under the Act and on the other hand, as discussed above, Section 299 of the Act not providing for express bar in a particular situation, and Section 4 of the High Court Act also not a restriction or prohibition in respect of any situation and therefore in any view of the matter, an appeal Section 4 of the High Court Act is definitely tenable in respect of any order passed by a learned Single Judge of this Court in the exercise of original jurisdiction.

Further distinction is that the procedures as envisaged under Rule 19 of the Delhi High Court (Original Side) Rules read with Section 10(1) of the Delhi High Court Rules, made an appeal to the Division Bench i.e. an intra-court appeal, tenable only in terms of the Section 104 of the Code and therefore while the restriction as found in Section 104 necessarily operated in that case, but in the present case, the appeal is totally liberated from the restriction as found in Section 104 of the Act.

While it is no doubt true that the appeal is a creature of statute and can be maintained only as per the enabling statutory provision can be found and it cannot be and is not disputed that Section 4 is an appellate provision expressly provided so, as, not saying so would be only turning a blind eye to Section 4 of the High Court Act.

The scope of appeal u/s 4 of the High Court Act is sought to be whittled down by the argument as advanced and referred to above on behalf of the Respondents, and when we find there is no scope for whittling down or curtailing the scope for an appeal u/s 4 of the High Court Act in the present situation, it is not possible to accept the preliminary objection raised on behalf of the Respondents and therefore preliminary objection is overruled and we take up the appeal for examination.

We are also of the view that when examining the scope of the appellate provision, the examination cannot be from the angle of making the provision ineffective or even for limiting the scope of the appellate provision, but should only be from the angle of making the appellate provision meaningful, so that the legislative intent of providing for filing of an appeal against the order by an aggrieved person is given effect to and therefore when examining the scope of Section 4 of the High Court. Act in the background of this appeal and the discussions made above, we are of the view that the appeal filed u/s 4 of the High Court Act is maintainable and therefore the preliminary objection is overruled.

On the merits of the appeal against the order of the learned single judge, submission of Sri. Aditya Sondhi, learned Counsel for the Appellant is that the learned single judge has failed to exercise the jurisdiction expressly conferred under the provisions of Order XIV Rule 2(2) of the Code, in the sense, an appellate jurisdiction as enabled u/s 4 of the High Court Act while can be read in conjunction with the provisions of Order XIV Rule 2, as the application itself is under the provision of Order XIV Rule 2, the jurisdiction and if it is not exercised on an incorrect understanding of the scope of the provisions of Order XIV Rule 2 and particularly the precise meaning and scope attributed to Clause (b) of Rule 2 to Order XIV. It is to be noted that Clause-b expressly enables the trial of a preliminary issue of law in the first instance and if the suit can be dealt with or decided in accordance with finding on that issue, even in situations where there are issues both of law and of facts and if the suit can be disposed of only on a finding based on an issue of law and in a situation of this nature, the only requirement is that an answer to an issue of law by itself should be sufficient to dispose of the suit itself and it could be achieved without drawing substance or support from a finding on issue of fact, which otherwise may also arise if the suit is tried in full and the finding recorded is to be rendered on all issues decided.

Learned Counsel for the Appellant would also submit that this could depend upon the facts and circumstances of each case and in the present case, the answer to the issue of law in itself being sufficient to satisfactorily dispose of the suit in the background of a judgment having been rendered though by a foreign court, but on the very question i.e. the validity of the will which is sought to be probated in the present suit, and an objection raised in this context having been examined by, a court of competent jurisdiction, though in a foreign country and so long as that judgment is one which is not to be ignored or rejected under any one of the exceptions enumerated in Section 13 of the Code, such a judgment of the foreign court being conclusive and if so, an exercise for ascertaining the genuineness or otherwise of the very will in the present suit being an exercise in futility, the situation squarely attracts the principles adumbrated in Section 11 of the Code and assuming for argument''s sake that Section 11 in turn is linked to Section 13 in a case of the present nature, it nevertheless having the effect of preventing the trial of the suit on the very issue or for the very cause in terms of the principles of res judicata incorporated in Section 11 of the Code, the court should have necessarily tried the issue of law as a preliminary issue unless a clear finding had been given that the answer to the issue of law was depending on the answer to the issue of facts.

Elaborating this submission, Sri. Aditya Sondhi, would submit that on the undisputed or admitted facts in the present situation, even in terms of the petition averments, which have now become plaint pleadings, and there being no dispute about the existence of a judgment rendered by a court of competent jurisdiction, though in a foreign country, and in terms of the presumption u/s 14 of the Code, that judgment of the foreign court will have to be necessarily recognized and effectuated and Section 11 being only providing for a statutory format through which it can be achieved. It is submitted that even on the admitted pleadings i.e. even on the pleadings as found in the petition/plaint, there is absolutely no scope for disputing the presumption in terms of Section 14 of the Code in the present case. Submission is that while Section 14 provides for res judicata presumption in terms of Clauses (a) to (f) of Section 13 of the Code, in the present case, the exception clauses are virtually conceded by the very conduct of the Plaintiff here. What is pointed out is and as we have noticed earlier in the opening part of this judgment, it is the Plaintiff in the suit who had initiated the probate proceeding in the foreign court on the basis of the very will. That proceedings culminated in a judgment through the trial by jury system, which was again at the option of the Plaintiff, declaring that the will sought to be probated was, on expert opinion, accepted to be not the signature of the deceased person. In this background, learned Counsel for the Appellant would submit that when once foreign judgment is to be accepted, even in terms of Section 13, it is not open to any person to attack any finding recorded or contained in a judgment on any issue or as part of the judgment. On such premise, it is submitted that all findings contained in the judgment, including the finding as to the genuineness or otherwise of the will, become binding and it is not open to question this finding in any other proceeding and as in the present case, in the present suit, unless the foreign judgment is demonstrated to be not conclusive of the question, one more proceeding on the same cause of action cannot be maintained.

It is further submitted by the learned Counsel for the Appellant that in the present case, there is absolutely no scope for the Plaintiff in the suit and Respondent in this appeal either for contending that either the judgment of the foreign court is not binding or that it has been obtained in a situation without the knowledge of the Plaintiff. What is pointed out is that the proceedings in the foreign court in itself were at the instance of the Plaintiff in the present suit and the Plaintiff cannot rescile from such judgment in the wake of presumption u/s 14 read with Section 13 of the Code and even in terms of Section 13, where the presumption can be rebutted under any one of the enumerated clauses of Section 13 viz., Clauses (a) to (f). Submission is that there is no scope at all for the Plaintiff in the present suit to contend that the foreign judgment is hit by any one of the situations contemplated under Clauses (a) to (f) of Section 13 of the Code.

In this context, learned Counsel for the Appellant would submit that the learned single judge was not right in recording a finding that the judgment [of the foreign court] was not conclusive, as it had not been supported by proper reasoning contained in the judgment and nothing is to be found in the judgment discussing the acceptability or otherwise of the evidence let in by the parties. It is on such premise, the learned single judge has come to the conclusion that the answer to the issue of law viz., as to whether the present suit is hit, in the sense, cannot, go for trial on the principles of res judicata in terms of Section 11 read with Section 13 of the Code, cannot be satisfactorily answered unless the issues of facts are also answered in the background of Clause (b) of Section 13 of the Code.

Sri. Sondhi would submit that while the judgment expressly recites that the procedure that has been gone into is as contemplated by the court and as per the procedure and the provisions governing the procedure, as per which trial by jury system is an accepted format and norm and in a trial by the jury there being no practice or scope for recording the reasons to arrive at a finding of fact and therefore the question as to reasons for the supporting finding of fact receding to the background and an issue of fact does not even arise or assuming there are other issues of fact, answer to the issue of law being not dependent but independent and the foreign judgment being a conclusive one, the issue should have been necessarily tried by the court as a preliminary issue.

Reliance is placed by Sri. Aditya Sondhi, learned Counsel for the Appellant in support of this submission, on the decision of the Supreme Court in the case of R. Viswanathan Vs. Rukn-Ul-Mulk Syed Abdul Wajid, , Placing reliance on this decision, it is pointed out that the Supreme Court opined that the court while considering a judgment of the foreign court is conclusive, i.e. the courts in India will not inquire into whether conclusions recorded therein are supported by evidence or are otherwise correct, because the binding character of the judgment may be displaced only by establishing that the case falls within one or more of the six clauses of Section 13 and not otherwise. It is also further pointed out that as observed by the Supreme Court at paragraph 24 of this judgment, in an action of personam, a person instituting a suit in a foreign court and claims a decree in personam cannot, after the judgment is pronounced against him, say that the court had no jurisdiction whose jurisdiction he had invoked and that court exercised jurisdiction as it is well recognized that a party who is present within or who had submitted to jurisdiction cannot afterwards question it and therefore the Plaintiff in this case is estopped from raising the exceptional clauses available in Section 13 of the Code. The earlier discussion with reference to the reasons being not given covers Clause-b of the exception and the disputes sought to be raised by the Plaintiff assuming in the court not going beyond the scope of Clauses (a) and (b) and there being no scope for invoking the exceptions as found in Clauses (a) and (b) of Section 13 of the Code, even assuming that a disputed fact would have arisen in the context, of answering a question that could arise in determining as to whether the foreign judgment is conclusive or otherwise in the context of the exception Clauses (a) and (b).

In the present case, there being no scope even for raising a plea of exception in terms of Clauses (a) and (b), there is no scope for holding that the finding of the issue of law as to whether the present situation is hit by the principles of res judicata being made depended on the issue of fact, which is required to be answered for the purpose of present suit. In further support of this legal position the learned Counsel for the Appellant has also referred to para-28 of the judgment in the case of Viswanathan [supra] that even a situation of the present nature where in fact the Plaintiff had instituted a proceeding in the foreign court after instituting the proceedings before this Court, but nevertheless suffers an adverse order in the foreign court before the present proceedings are culminated, the conclusive of the foreign judgment is no where diluted, because of this situation, as discussed in para-28 of the judgment of the Supreme Court in the case of Viswanathan [supra].

It is also submitted that there is absolutely no scope for raising the exception Clause (d) also, as it is the Plaintiff who had obtained a judgment at the hands of a foreign court and the judgment after going through its normal procedure and run and at any rate not open to the Plaintiff to contend that the judgment is vitiated for having obtained in a manner opposed to the principles of natural justice and the said clause is not even attracted, as the judgment itself was at the hands of the Plaintiff. The following observation at para-30 of this judgment, reads as under:

The long standing practice of this Court is that one of the Judges makes a reference by a mere record in the order sheet after the judgments are separately pronounced.

It appears therefore that there was a settled practice in the Mysore High Court to refer cases u/s 15(3) after delivering differing opinions including the final orders to be passed in the appeal on such opinions. In adjudging the competence of the foreign Court it would not be open to us to ignore the course of practice in that Court even if it be not strictly warranted by the procedural law of that State. Whether the procedure of the foreign Court which does not offend natural justice is valid is for the foreign Court to decide and not by the Court in which the foreign judgment is pleaded as conclusive. In Brijlal Ranyidas v. Govindram Gordhandas, 74 Ind App 203: AIR 1947 PC 192, the Judicial Committee in dealing with the authority of the Indore High Court to transfer proceedings from the District Court of Indore observed:

The question whether a foreign Court is the "proper Court" to deal with a particular matter according to the law of the foreign country is a question for the Courts of that country. There is no doubt that some Court in Indore was "a Court of competent jurisdiction." It was for the High Court of Indore to interpret its own law and rules of procedure, and its decision that the High Court was the "proper" Court must be regarded as conclusive.

Reliance is also placed on the judgment of the Supreme Court in the case of Deb Narayan Halder Vs. Smt. Anushree Halder, and submits that the provisions of Section 11 CPC i.e. the applicability of the principles of res judicata, which, if are applicable, barring the trial of the suit, when tried as an issue of law, can be gone into as a preliminary issue, even assuming that in answer to this issue of lav, examination of the disputed questions of fact and law are involved? Placing reliance on the observation at para-15 and 16 of this judgment, submission is that mere fact that in answering an issue of law, the examination of questions of fact by themselves are not relevant or conclusive to hold that the issue of law cannot at all be tried as a preliminary issue for want of jurisdiction. A finding on the disputed issue of fact also assuming that it is necessary to record a finding on these disputed questions of fact arise, would not in any way prevent an issue of law being examined as a preliminary issue for the reason that what can come in the way is only when for answering the issue of law, it becomes dependent on the answer recorded in the context of an issue of fact, which also arises independently and in the context of the pleadings of the parties and for a satisfactory disposal of the suit. Submission is that assuming that there are issues of facts, until and unless an answer to the issue of fats being very necessary or it being the situation, where the issue of law cannot be answered at all without answering an issue of fact, there is no impediment for examination, the request for trying the issue of law as a preliminary issue.

It is further submitted by the learned Counsel for the Appellant that it is an erroneous assumption and erroneous understanding of the scope of the provision of Order XIV Rule 2 in the context of Clause-b, which has resulted in the learned single judge declining to assume jurisdiction to examine the question as the preliminary issue, amounting to abdication of jurisdiction and therefore also the order under appeal is not tenable.

Sri. Sondhi would also place reliance on the judgment of the Supreme Court in the case of Abdul Rahman [supra] and as observed in para-21 of this judgment, submits that it is well accepted on authority and also on practice that the issue of res judiciata for constructive res judiciata can be adjudicated upon as a preliminary issue and more so when some of the supporting facts are admitted as in the present case. Submission is on the admitted facts as found in the petition/plaint, the question as to whether the suit was barred because of the foreign judgment being conclusive was an issue eminently triable as a preliminary issue and the learned single judge having not even gone to the question of the possibility of the examination of this issue of res judicata as a preliminary issue, on the premise that court lacks jurisdiction in terms of Clause-b of Order XIV Rule 2 and therefore the impugned order inevitably is not sustainable and necessarily requires to be set aside, even for correcting the legal position, which has been incorrectly recorded by the learned single judge.

It is submitted that on the question as to whether the will sought to be probated is genuine or otherwise, parties having gone through a full-fledged trial before the foreign court, though in accordance with the procedure regulating the proceedings of that court, but the Plaintiff himself having invoked the jurisdiction of the foreign court and having pleaded certain facts in the proceedings before that court, not only for maintaining proceedings before that court but. also for seeking relief, those facts having become conclusive and binding on the Plaintiff and there being no scope for disputing those facts again in the present suit, which can in turn represent in any one of the exceptions enumerated in Clauses (a) to (f) of Section 13 of the Code and to avoid the parties being subjected to unnecessary requirement of going through trial yet again before this Court to answer the very question which had already been answered in the judgment of the foreign court, the only question that could have been examined in the present suit being as to whether the suit is hit by principles of res judicata and that too answer to this question being dependent on the judgment of the foreign court and there being no scope, nor even demonstrated that the judgment is not conclusive in terms of the presumption u/s 14 of the Code, because of one of the exceptions enumerated in Clauses (a) to (f) of Section 13 of the Code, the issue should have been tried only as a preliminary issue and relegating the answer to this preliminary issue, purely a issue of law, to be tried along with other issues is an unwarranted exercise and therefore the order deserves to be set aside and the application allowed etc.

Countering such contentions urged on behalf of the Appellant, Sri. Raghavan, learned senior Counsel for the first Respondent would vehemently urge that the order passed by the learned Single Judge on the application filed by the Plaintiff under the provisions of Order XIV Rule 2(2) CPC cannot be entertained or allowed until and unless the applicant is able to demonstrate that the application is fully tenable within the scope of this provision; that the scope for trying an issue of law as a preliminary issue, is only an exception to the normal rule of trying all issues together, whether of law or of fact; that the legislative intent being very clear to keep to the minimum, situations where an issue of law can be tried as a preliminary issue in terms of the amendment to this provision by Act 104 of 1976 with effect from 1-2-1977, whereafter the requirement is that notwithstanding a case may be disposed of on a preliminary issue, the court should necessarily records its finding on all issues and Sub-rule (2) being an exception to the normal rule of the court of first instance recording finding on all issues arising in the suit, while the scope of Sub-rule (2) cannot be enlarged or even understood as a normal rule, the exception should be strictly construed and unless the situation is one which is squarely and aptly covered by Clause-b i.e. the bar to the maintainability or trying of the suit created by any law for the time being in force is fully demonstrated in absolute terms, there is no scope at all for trying even an issue of law as a preliminary issue.

In this background, Sri. Raghavan would submit that in so far as the judgments of foreign courts are concerned, the provisions of Section 11 of the Code are not even attracted, but it is only the provision of Section 13 which comes into play and therefore the principles of res judicata are not per se attracted and to be made applicable for holding that a suit is barred in terms of a statutory provisions.

Elaborating this contention, submission of Sri. Raghavan, learned senior Counsel, is that while Section II CPC and principles of res judicata are not attracted per se if at all if any bar can be shown, it can only be in terms of Section 13 of the Act and as even u/s 13, a judgment of the foreign court being not conclusive, if it is hit by any one of the exceptional clauses of Section 13, the bar cannot be automatically read in, to prevent the suit being tried on all issues of facts and law.

In support of the submission that Section 11 and the principles of res judicata are not attracted, Sri. Raghavan has taken us to the definition section and the definition of judgment as found in Sub-section (9) of Section 2, definition of foreign court in Sub-section (5) of Section 2 and would submit that the judgment of foreign court being not a judgment rendered by court which is governed by the Code and in the present case, the judgment also not containing reasons, in the sense, supporting discussion for granting a decree or order, it cannot be construed as either a judgment, or as a judgment rendered by a court, which had tried a formal suit and had recorded findings which were in issue in the suit and would therefore submit that the provisions of Section 11 CPC are as such not attracted.

The distinction is sought to be made between a court which is governed by the Code and a foreign court, which is not governed by the procedure envisaged under the Code, and it is therefore submitted for attracting the provisions of Section 11, unless the findings are recorded in a suit instituted in a court in this country, binding nature of such findings between the same parties, as provided in Section 11, is not available.

However, Sri. Raghavan would not dispute that Section 13 Code of Civil Procedure, which provides for a conclusiveness in the normal course but for the exceptions as enumerated therein, would nevertheless be on principles akin to Section 11 and if a foreign judgment is once proved to be conclusive, perhaps, that would in turn attract the principles of Section 11 CPC and therefore the suit may become not maintainable. Argument is that for holding a suit as not maintainable, the requirement and the examination is not on the touchstone of the provisions of Section 11 but on the touchstone of the provisions of Section 13 of the Code.

In support of the submission that the provisions of Section 11 of the Code is not per se attracted in a situation of foreign judgment being relied upon, Sri. Raghavan, learned senior Counsel appearing for the first Respondent has placed reliance on the judgment of the Supreme Court in the case of Viswanathan [supra] and by drawing particular reference to paragraphs 35 and 36 in. this judgment, it is submitted that in the case of a judgment of the foreign court conclusiveness of the foreign judgment is only to matters directly adjudicated upon and therefore every issue heard and finally decided before the foreign court is not conclusive between the parties. The distinction pointed out is that in the case of the suit in which principles of res judicata are to be applied is strictly on the touchstone of the municipal law but the competence of foreign Tribunal should also answer the dual test of competence by the laws of the State in which the court functions and also in an international sense and the question being also linked to the domicile of the person executing the Will as the properties comprising of movables and immovable properties disposed of under the Will in India and foreign countries and in turn touching upon an aspect of succession under the Will and unless all these questions are satisfactorily answered which questions may also involve disputed questions of facts, an answer to the question as to whether the foreign judgment is conclusive or not cannot be satisfactorily arrived at and therefore the issue cannot be tried as a preliminary issue in terms of the provisions of Clause [b] of Sub-rule [2] of Rule 2 of Order XIV of the Code and therefore submits that the learned single Judge has rightly declined examination of the issue as a preliminary issue.

In support of the submission that mixed questions of facts and law confer no jurisdiction on the court to decide the preliminary issues unless the facts are clear from the plaint itself and mixed questions of fact and law can be determined on the principles of demurrer where a decision on the issue of law depends upon the issue of fact, Sri. Raghavan, learned senior Counsel appearing for the first Respondent has placed reliance on the judgment of the Supreme Court in the case of Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, .

Drawing our specific attention to paragraph-13 of this judgment, the scope of Sub-rule [2] of Rule 2 of Order XIV of the Code having considerably whittled down after the amendment of the year 1976 and now it being further narrowed down and as noticed earlier, the issue cannot be tried as a preliminary issue though may have an issue of law if it involves mixed questions of law and facts as that would result in a lopsided trial of the suit.

The fact that the Supreme Court reiterated the principle laid down on this aspect of the matter in the case of S.S. khanna [supra] is emphasized and therefore submitted that if the issue of law involves determination of mixed questions of facts and law it cannot be tried as a preliminary issue at all.

For such purpose, Mr. Raghavan, learned senior Counsel has also taken us through the judgment of the Supreme Court in Khanna''s case [supra] to the following observations as contained in paragraph-18 at the end of page 502 as under:

... Under Order 14 Rule 2 CPC where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case, or part thereof could be disposed of on the issues of law only, it shall try those issues first and for that purpose, may, if it thinks fit, postpone settlement of the issues of fact until after the issues of taw have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the CPC confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally, all issues in the suit should be tried by the Court; not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact would result in a lop-sided trial of the suit.

By drawing attention to paragraph-14 of the judgment of the Supreme Court in Ramesh B. Desai''s case [supra], Sri. Raghavan would submit that the Plaintiff in the suit having raised a plea of demurrer in the pleadings and the written statement/objections of the first Defendant and by way of filing a rejoinder and in the wake of this, there being need for the court to examine the disputed questions of facts and unless these questions of facts are also answered, the preliminary issue of law being incapable of being satisfactorily answered, the issue of law in the present case cannot be tried as a preliminary issue. It is therefore urged that the court does lack jurisdiction to try the preliminary issue in terms of the provisions of Order XIV Rule 2[2][b] of the Code; that the learned single Judge was very correct in dismissing the application on the ground of want of jurisdiction and the order does not call for interference.

As an alternative submission, Sri. Raghavan, learned senior Counsel has also urged that as this Court is examining the legality of the order in exercise of the appellate jurisdiction and as it is a. well settled principle of law that the appellate court will interfere with the order in appeal only when the court does not admit of the divergent views but only one view is the correct view and would point out in this regard that with the enabling provisions of Order XIV Rule 2 of the Code which reads as under,

Court to pronounce judgment on all issues

(1). Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues.

(2). Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -

(a). the jurisdiction of the court, or

(b). a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

indicating that in a situation where while filing a suit the issues both of facts and law arise in the same suit and the court is of the opinion that case or any part thereof may be disposed of on issue of law only it may try the issue first if that issue relates to the bar to the suit created by any law for the time being in force and if in the exercise of the discretionary jurisdiction the learned single Judge of this Court has declined to try the issue as a preliminary issue, there is no scope for interference in the exercise of appellate jurisdiction and therefore interference is not warranted.

Mr. Raghavan, learned senior Counsel would also draw sustenance to his submission that the preliminary issue of law assuming that it is an issue of res judicata or constructive res judicata should not be tried as a preliminary issue only when facts are not in dispute and if there are any disputed questions of facts involved for the disposal of the suit the issue cannot be tried as a preliminary issue and in support of the submission has placed reliance on the decision of the Supreme Court in the case of Abdul Rahman [supra] with emphasis on paragraph-21 of this judgment.

On the very question, Sri. Aditya, learned Counsel for the Appellant has also placed reliance and on the same paragraph to submit that when facts are admitted and does not give rise to an issue, in the sense that, there are no issues of facts which are required to be determined independently, then on the ratio of the ruling in Abdul Wajid''s case [supra] as contained in paragraph-21 of Prasony Bai''s case [supra] which reads as under:

For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court, In terms of Order XIV Rule 1 of the Code of Civil Procedure, a civil court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and/constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact when facts are admitted, ordinarily should be decided as preliminary issues.

the issue of law should ordinarily be not decided as preliminary Issue.

It is in the background of such submissions, we are required to examine the merits of the contentions urged and also the sustainability or otherwise of the order passed by the learned single Judge and as to whether the order in fact warrants interference.

In so far as the submission that the appellate jurisdiction is exercised only when the view taken by the court in passing the order does not admit of two views with only one view and such is not the view taken by the court at the first instance, there is absolutely no dispute and is a well settled principle of law.

It is also an equally settled principle of law that if the jurisdiction is one of discretionary jurisdiction exercising discretion and it is possible to exercise discretion one way or the other, the appellate court will not interfere even if by itself the appellate court would have not come to the conclusion for the view taken by the court of the first instance when the court at the first instance has exercised its discretion in one way and unless that is proved it is impossible to take the view, the appellate court will not interfere.

On this aspect of the question as arising in the present case if perhaps the learned single Judge should have exercised the discretion as to whether to try the issue of law as a preliminary issue is being within the discretion and for any reason it is being held it is not necessary to try that issue perhaps the matter would have definitely ended with that. But, the learned single Judge having not chosen to exercise the discretion for examination of the issue of law as a preliminary issue, but having taken the view that there is a bar of jurisdiction on the court to try the issue as a preliminary issue in the wake of the provisions of Clause [b] of Sub-rule [2] of Rule 2 of Order XIV of the Code and on such premise having declined to examine the issue and having rejected the application the question that arises is as to whether the application if could have been examined within the scope of Order XIV Rule 2[2][b] of the Code.

Of course, on this aspect, learned Counsel on both sides have addressed arguments and while it is contended on behalf of the Respondents that the issue cannot be tried as a preliminary issue as the issue of law in turn also involves examination of mixed questions of facts and law, in the sense, an answer to the issue of fact is very necessary to arrive at a satisfactory answer to the issue of law, the question cannot be tried as a preliminary issue on the authority of the decisions relied upon referred to above, submission on behalf of the Appellant is that the application did come within the scope of the statutory provisions having regard to the admitted facts and having regard to the position of law and even as per the issues as framed, there was no independent issue of fact which was necessarily to be answered for completing the answer to the issue of law and even without taking support from an answer on an issue of fact outside the scope of issue of law, the issue of law very well and satisfactorily can be resolved in the case and therefore it should have been tried as a preliminary issue.

It is well settled that declining to examine a question amounts to declining to exercise the jurisdiction whereas on examination declining to exercise the discretion the court taking a view one way or the other is not one of declining to exercise jurisdiction. Also a question wrongly decided on the touchstone of a statutory provision does not necessarily amounts to a decision rendered without jurisdiction.

In terms of the statutory provisions under Order XIV Rule 2[2][b] of the Code, if a fact situation comes squarely within the scope of this statutory provision, then the court has to necessarily exercise the discretion for deciding as to whether the issue can be tried as a preliminary issue or not. In fact, the discretion will be exercised only when the issue is one squarely covered within the scope of the provisions of Order XIV Rule 2[2][b] of the Code. If the situation is not at all governed under this provision, in the sense that, the situation goes out of the provisions of clause [b] of Sub-rule [2] of Rule 2 of Order XIV of the Code, the question of exercising discretion never arises and the matter ends with that.

The question that arises in this appeal has to be examined in the background of such statutory provision and in the light of the binding authorities governing statutory provision and applying the principles to the facts of the present case and the situation.

In the present case, the issue that is sought to be tried as a preliminary issue is does the Defendant No. 1 proves that the suit is haired by principles of res judicata, as recognized under the Code in terms of Section 11 of the Code, is not in dispute. Therefore, the issue is virtually as to whether Section 11 of the Code is attracted in the present facts and circumstances to act as a bar to the trial of the suit?

While we are conscious that the learned Counsel for the Respondent has addressed arguments to contend that in so far as the foreign judgment is concerned, it is only the provisions of Section 13 of the Code or the relevant provisions which are attracted and not the Section 11 of the Code, in terms of the discussions to be found in para-28 of the judgment of the Supreme Court in the case of Viswanathan [supra]. In the very paragraph, the Supreme Court having observed that Section 13 incorporates the branch of principles of res judicata and extended it within certain limits to judgments of foreign courts, if competent in an international sense to decide the dispute between the parties. It is also observed that the rule of res judicata applies to all adjudications in a ''foreign suit'' which expression by Explanation I to Section 11 of the Code of Civil Procedure, denotes a suit which has been decided prior to the suit in question, whether or not it was instituted prior thereto. This explanation is merely declaratory of the law; the decisions of the courts in India prior to its enactment establish that proposition conclusively.

If it is once conceded that conclusiveness of foreign judgment is also a part of the principles of res judicata and the principles of res judicata having been recognized by statute in terms of Section 11 of the Code, the touchstone for examination of the question is as to whether the issue of law viz., the issue as framed in this suit as to whether the suit is hit by the principles of res judicata, because within the scope of Clause-b of Sub-section (2) of Rule (2) of Order XIV is only with reference to the statutory provisions of Section 11 of the Code and therefore even in case of foreign judgment, the principles of res judicata necessarily is relevant and if the issue is a proper issue of law and can be tried as a preliminary issue, as observed by the Supreme Court in paras 21, 22, 23 etc, in the case of ABDUL RAHMAN [supra], where facts are similar to the fact situation as prevailing in the present case and a judgment being an authority only for what it decides and not for what it does not decide in the case of ABDUL RAHMAN [supra], what was decided was the question as to issue could have been tried as a preliminary issue or not and the Supreme Court having opined that it could have been tried as a preliminary issue and the appeal against the order for trying the issue of res judicata or constructive res judicata as a preliminary issue, is an issue that can be tried as a preliminary issue, it is only an authority for the proposition and as contended by Sri. Aditya Sondhi, learned Counsel for the Appellant that the issue of res judicata even on authority of this decision can be tried as a preliminary issue and is definitely not an authority for the contention urged by Sri Raghavan, learned senior Counsel appearing for the first Respondent that it is also an authority for not trying as a preliminary issue only where facts are admitted etc., and not otherwise cannot be accepted.

While on a principle of law the case relied upon and referred to above, is an authority for holding that a preliminary issue such as questions relating to the suit being barred by res judicata can be tried as a preliminary issue, the further question as to whether the facts are admitted or not is an aspect or question as to whether it involves other disputed tacts, which constitute an issue and to be answered independently to support the finding on issue of law, is a question that has to be examined on facts of each case, 102. While on perusal of the statutory provisions of Order XIV Rule 2(2) of the Code, the position is that unless there is a bar in the statute in terms of the current statutory provisions, in a case where there are both issues of law and facts and it is only when the issue of law is one as contemplated in Clause-b, there is a statutory bar for the suit, can be answered and on such answer can dispose of the case or any part of the case may be disposed of, and answered that issue of law and without need being there for going in search of an answer to issues of facts to boost an answer to the issue of law, then alone the issue can be tried as a preliminary issue and not at the discretion of the court and to this extent even in the present case, if the suit is barred u/s 11 of the Code in the wake of the existence of a foreign judgment and when once the existence of the foreign judgment is not in dispute and in fact even in terms of Section 14 of the Code, there being a mandate on the courts to draw a presumption in favour of the judgment being on the suit having been pronounced by a court of competent jurisdiction, unless the contrary appears on the record and the existence of the judgment being not disputed even in terms of the pleadings as per the plea found in para-7 of the rejoinder, it is contended that the foreign judgment is not conclusive, only for the reason that it falls within the exceptions as stated in Section 13 of the Code and also in the wake of the contentions raised in paras 4, 5 and 6 to contend that the judgment is not a judgment in the eye of law, as it is not a judgment as recognized by the courts in India, as the judgment was rendered on the basis of a finding written by a jury verdict on questions of fact and without even discussing the details of the evidence let in by the parties for the arrival of the verdict by the jury and such being not an accepted norm for rendering judgment by courts in India on applying the touchstone of valid judgments rendered by courts in India, the foreign judgment is not a valid judgment and therefore further question as to whether it is valid or otherwise in the wake of this contention being depended on the question of fact, the issue of law relating to the suit being barred by the principles of res judicata is, in fact, depended on this question of fact also, the issue cannot be tried as a preliminary issue, is not a submission which merits acceptance for more than one reason.

Firstly, assuming that for deciding as to whether the suit is barred by principles of res judicata and which is the actual issue which has been framed in the case, is in turn depending on the foreign judgment and that being conclusive and if one looks at the claim before the court, rule being when once existence of the foreign judgment is accepted, the presumption in favour of the foreign judgment arising u/s 14 of the Code and. when once the foreign judgment is proved, it automatically becoming conclusive even in terms of the presumption envisaged u/s 14 of the Code and such presumption being rebuttable only on any one of the exceptional clauses enumerated in Clauses (a) to (f) of Section 13 of the Code, the existence of foreign judgment being not at all in dispute in the present case and in fact admittedly that foreign judgment being at the instance of the Plaintiff in the suit, the presumption u/s 14 automatically arises. In the wake of this position, i.e. the existence of foreign judgment between the same parties and on the very question of validity of the will sought to be propounded before this Court in the suit being an admitted fact and being not in dispute and that judgment being conclusive and being not within the reach of any one of the exceptions in Clauses (a) to (f) in Section 13 of the Code and even here the Plaintiff being preempted from invoking Clause-a and other related clauses in the wake of the plea that the Plaintiff himself had put forth in his application to probate the will not produced in court and for issuance of letters testamentary before the foreign court, where the application mentioned that:

This Court has jurisdiction and venue because decedent who had dual citizenship, was domiciled in and had a fixed place of residence in this country on the date of his death.

It is also not in dispute that before the foreign court, the verdict of the jury on question No 1 viz., ''we find from the preponderance of evidence that the will was executed with all the formalities to make it lawful and valid will and was answered in the negative'' and based on the instructions given by the judge in the jury, which are as under:

The will must be in writing;

The testator must be 18 years of age or older;

The testator must personally sign the will;

The will must be attested by two or more credible witnesses above the age of 14 years, who each subscribe their name to the will in their own handwriting in the presence of the testator. There is no requirement that the witnesses sign in each other''s presence.

It is on the basis of the answer to question No. 1, which, on motion by parties for pronouncement of judgment, the judgment was pronounced as under:

Cause No. 359, 626-401

Estate of and In The Probate Court and

Makonhallj D, Narayan, and Number One (1) of and

Deceased and Harris County, Texas and

Final Judgment

Be it Remembered that on the 25th day of June, 2007, after the case was duly set for trial with due and proper notice to all parties, this case was called for trial The trial revolved around M.D. Balakrishna''s application for probate of the purported "Last Will and Testament of M.D. Narayan, dated April 15, 2004." ("Purported Will"). Proponent, M.D. Balakrishna, ("Balakishna") appeared personally and by and through his attorney of record, Ray J. Black, and announced ready for triel. Contestant, Arathi Narayan also appeared personally and by and through her attorneys of record, James H. Stilwell and Georgia Adams, both of Andrews Kurth LLP, and announced ready for trial.

Thereafter, a panel of six duly qualified persons were selected and sworn in as the Jury in this cause.

Thereafter, the parties through their attorneys made their opening statements, and Proponent Balakrishna presented his evidence. After Balakrishna rested his case, Contestant Arathi Narayan then presented her evidence, concluding on July 5, 2007. Whereupon the parties through their attorneys announced in open court that they had presented all their evidence and that they rested.

Thereafter, the Court in consultation with the attorneys representing the parties prepared a written charge to submit the case to the Jury. The parties through their attorneys were allowed to examine the charge and provided with the opportunity to make objections to it Thereafter, the Court read its written charge and Questions to the Jury.

Thereafter, the parties through their attorneys were allowed to present argument to the Jury.

Thereafter, the Jury retired to deliberate the verdict.

Thereafter, on the 5th day of July 2007, the Jury returned to open court and announced through its presiding juror that the Jury had reached a verdict. The verdict was read aloud in open court in the presence of the Jury and the attorneys representing the parties. The Jury unanimously (six our of six jurors) answered the Questions in the charge as follows:

Question No. 1: Do you find from a preponderance of the evidence that the Will was executed with all the formalities to make it a lawful and valid will? Answer: "No."

Question No. 2: Do you find from a preponderance of the evidence that M.D. Balakrishna brought this proceeding to probate the Will in good faith and with just cause? Answer: "No."

If you answered "Yes" to Question No. 2 above, then answer Question No. 3. Otherwise, do not answer Question No. 3.

Question No. 3: What sum of money, if any, do you find from a preponderance of the evidence to be the necessary expenses, including reasonable attorneys fees, incurred and to be incurred by M.D. Balakrishna in prosecuting this proceeding.

For legal services rendered in preparation and trial of this cause in this Court? Not Answered.

The questions submitted to the jury and the jury''s findings are attached as Exhibit A hereto, and fully incorporated herein by reference.

Thereafter, the Court determined that no party raised any objection to the receipt of the verdict and granted Arathi Narayan''s request to accept, enter and file the verdict and findings of record. The Court then discharged the Jury.

Thereafter, Arathi Narayan filed a Motion for judgment, and M.D. Balakrishna filed a Motion for judgment Notwithstanding the Verdict. The Court having considered both motions, the contents of its file including, but not limited to all pleadings, motions, discovery, and pre-trial filings, as well as the arguments of counsel, the evidence presented at trial, and the verdict of the Jury rendered on July 5, 2007, all of which are incorporated herein by reference, granted each motion in part and denied each motion in part: The Court upheld the Jury''s Response to Question 1: overturned the Jury''s Response to Question 2; and entered a finding for Question 3 in the amount of $173,651.84.

Wherefore, the Court now Renders and enters the following judgment in favor of Contestant Arathi Narayan:

It is Ordered, Adjudged, and Decreed that the purported Last Will and Testament of M.D. Narayan, dated April 15, 2004 is not a lawful will and is not a valid will.

Furthermore, it is Ordered, Adjudged and Decreed that M.D. Balakrishna brought the proceeding to probate the Will in good faith and with just cause.

Furthermore, it is Ordered, Adjudged and Decreed that Proponent Balakrishna recover his attorney''s fees in the amount of $173,651.84 from the Estate of M.D. Narayan, Deceased.

Furthermore, it is Ordered, Adjudged and Decreed that Contestant Arathi Narayan recover court costs from the Estate of M.D. Narayan.

This judgment is final and disposes of all claims by all parties relative to the Purported Will, and is appealable. Furthermore, it is Ordered, Adjudged, and Decreed that all relief not expressly granted in this judgment is denied.

Signed this the 26th day of July 2007.

Sd/- Judge Presiding

When this is the admitted position, if at all anything could survive for a dispute being raised in the context of the foreign judgment is only to urge a contention in terms of one of the available exceptional clauses in Section 13 of the Code. That means the question of the suit being barred by res judicata even assuming in turn depends on the answers to this, it has to be remembered that all questions under Clauses (a) to (f), which may possibly arise in this case, having also been answered, but assuming the some are left for examination on the contentions raised but not on the facts pleaded, it is nevertheless only a question of law and not question of fact. It cannot be disputed that the exceptional clauses are all constituted only for questions of law, which may in turn possibly depending on the disputed questions of facts also, but per se, the possibility for the Plaintiff to get out of the foreign judgment is only based on the pure question and if at all it arises and survives for examination, in the wake of the admitted position that the Plaintiff himself had elicited and obtained a foreign judgment as extracted above [copy produced at Annexure-F to the application filed by the Defendant under Order VII Rule 11 for rejection of the plaint, but which has not been pressed for orders]. Be that as it may, the existence of this final judgment as above being not disputed by the Plaintiff in the suit and on the other hand it being admitted, it has to be accepted as such and what if at all survives is a possible legal contention that can be developed on the basis of this judgment as it exists and which can come within the scope of one of the exceptions enumerated in Section 13 of the Act.

Even on facts of the case, we find that the Issues as framed by the court initially are:

(1). Whether the Plaintiff proves that the Will dated 15.04.2004 produced alongwith this petition and marked as Annx.D is the last Will and testament of Sri. M.D. Narayan and the same has been duly executed by him?

(2). Whether the market value of the estate of Sri. M.D. Narayan has been valued and court fee paid is sufficient?

and therefore it is only the issue of the Plaintiff proving the will dated 15-4-2004 as the last will and testament of deceased M.D. Narayan, the question which gets itself answered if it is found that the very Plaintiff was unable to prove the very will before a foreign court and even in terms of the test as indicated, instructions issued by the judge to the jury and the test to be applied in comparison to the municipal laws in this country, being found more rigorous in to the municipal laws of this country and passing the test of acceptability even in the case of Viswanathan [supra], in so far as Section 13 presumption is concerned. In terms of the observations of the Supreme Court in this case as contained in para-25 and also in the international sense, and if at all the test for proving the will under the municipal law of the country were present, suit is being tried and being more rigorous and if the Plaintiff had failed to prove the will, even on the touchstone of the less rigorous law practicing the foreign country, it should be a fortiori so on the touchstone of the law as prevailing in this country, which certainly passes the dual test of judgment being by a foreign court of competent jurisdiction and also in an international sense. Even an argument that the judgment of the foreign court is not one acceptable in this country, as the procedure followed there was controlled by the jury, which is not an accepted procedure for rendering judgment in our country and at any rate in the court before which the present suit has been instituted, is answered by the judgment of the Supreme Court in the case of Viswanathan [supra], as contained in para-30, 31 and 32 to the following effect:

(30) The decision of the Allahabad High Court in Lal Singh v. Ghansham Singh ILR 9 All 625 (FB), does not assist the Plaintiff''s in support of the plea that the reference to the Full Bench was invalid and the Mysore High Court was incompetent to hear the reference. In Lal Singh''s case ILR 9 All 625 (FB), the majority of the Court held that:

Where a Bench of two Judges hearing an appeal and. differing in opinion have delivered judgments on the appeal as judgments of the Court without any reservation, they are not competent to refer the appeal to other Judges of the Court u/s 575 of the CPC (of 1882).

In that case, a reference was made on a difference of opinion between two Judges, but not on a question of law. By Section 575(2), Code of Civil Procedure, 1882. difference on a question of law being a condition of reference, the reference was manifestly incompetent; it was so pointed out by Brodhurst, J., who was one of the Judges composing the original Bench of Judges who differed. There is, however, no such restriction in Section 15(3) of the Mysore High Court Regulation, 1884. Again, the principle of Lal Singh''s case ILR 9 All 625 (FB) as broadly enunciated by the majority of the Court has not been approved in many later cases in other High Courts; for instance, Karali Charon Sarma Vs. Apurba Krishna Bajpayi and Others, . AIR 1931 578 (Lahore) and Jehangir v. Secretary of State 6 Bom L R 131 at p. 206. In these cases it was held that in each case the question is one of intention of the Judges differing in their opinions. The Mysore High Court held in Narayanana v. Lingappa 4 DLR (Mys) 115 (FB), that it is not illegal to refer a case u/s 15(3) of the Mysore High Court Regulation, 1884, after the Judges differing have recorded judgments including the final orders they are to make, and without any reservations. It was observed in the judgment of the Court.

The long standing practice of this Court is that one of the Judges makes a reference by a mere record in the order sheet after the Judgments are separately pronounced.

It appears therefore that there was a settled practice in the Mysore High Court to refer cases u/s 15(3) after delivering differing opinions including the final orders to he passed in the appeal on such opinions. In adjudging the competence of the foreign Court it would not be open to us to ignore the course of practice in that court even if it be not strictly warranted by the procedural law of that State. Whether the procedure of the foreign court which does not offend natural justice is valid is for the foreign Court to decide and not by the court in which the foreign judgment is pleaded as conclusive. In Brijlal Ranyidas v. Govindram Gordhandas 74 Ind App 203: AIR 1947 P C 192, the Judicial Committee in dealing with the authority of the Indore High Court to transfer proceedings from the District Court of Indore observed:

The question whether a foreign Court is the ''''proper Court" to deal with a particular matter according to the law of the foreign country is a question for the Courts of that country. There is no doubt that some Court in Indore was "a Court of competent jurisdiction." It was for the High Court of Indore to interpret its own law and rules of procedure, and its decision that the High Court was the "proper" Court must be regarded as conclusive.

The Madras High Court could not therefore investigate the propriety of the procedure followed by the Mysore High Court referring the case to the Full Bench and the judgment of the Mysore Full Bench was therefore not exposed to the attack of want of competence because the case was referred after the two Judges constituting the Beach had delivered separate and complete opinions expressing their views on the points in dispute.

(31). In the plaint in the Bangalore District Court suit the Plaintiffs claimed possession of the properties set out in the schedule on the ground that those and other properties belonged to the joint family of which they and their father Ramalingam Mudaliar were members, and to which they were entitled by survivorship on the death of Ramalingam. In Schedule ''B'' to the plaint the first item was the business at Kolar Gold Fields. The claim was decreed by the trial court but the High Court reversed the decree and dismissed the suit. The Attorney-General submits that the judgment of the Mysore High Court was conclusive between the parties in respect of all matters adjudicated thereby and the Madras High Court in considering the claim of the Plaintiffs in the suit before it was debarred from investigating whether the Kolar Gold Fields business was the separate property of Ramalingam. The issue as to the ownership of the Kolar Gold Fields business being directly adjudicated upon by the Mysore High Court, which was competent in an international sense as well as according to the municipal law of Mysore in that behalf, it was submitted, that adjudication was conclusive between the parties in the Madras suit. Reliance in support of this submission was placed upon the definition of ''foreign judgment'' in Section 2(9) of the Code of Civil Procedure, 1908, and the use of the expression , ''matter'' in Section 13 of the Code.

(32). A foreign judgment is conclusive as to any matter directly adjudicated upon thereby; but it does not include the reasons for the judgment given by the foreign court What is conclusive u/s 13 of the CPC is the judgment i.e., the final adjudication, and not the ''reasons, 74 Ind App 203: AIR 1947 PC 192. Section 13 in essence enacts a branch of the rule of res judicata in its relation to foreign judgments, but not every foreign judgment is made conclusive in the Indian Courts by Section 13. To be conclusive, a foreign judgment must be by a court competent both by the law of the State which has constituted it and in an international sense, and it must have directly adjudicated upon the "matter" which is pleaded as res judicata. The expression "matter" in Section 13 is not equivalent to subject matter; it means the right claimed. To be conclusive the judgment of the foreign Court must have directly adjudicated upon a matter, the adjudication must be between the same parties, and the foreign Court must be a court of competent jurisdiction. Story in his "Conflict of Laws", eighth Edition at p. 768 Section 551 says:

In respect to immovable property every attempt of any foreign tribunal to found a jurisdiction over it must be from the very nature of the case, utterly nugatory, and its decree must be for ever incapable of execution in rem.

Similarly, Dicey in his "Conflict of Laws" 7th Edition, Rule 85, enunciates the rule as follows:

All rights over or in relation to an immovable (land) are (subject to the exceptions hereinafter mentioned) governed by the law of the country where the immovable is situate (lex situs).

The exceptions for the purpose of the present case are not material. In the comments under the Rule, Dicey states at p. 513:

The sovereign of the country where land is situate has absolute control over the land within his dominion: he alone can bestow effective right over it; his courts alone are as a rule, entitled to exercise jurisdiction over such land. Consequently, any decision by an English Court which ran counter to what the lex situs had decided or would decide would be, in most cases a brutum fulmen.

In Companhia de Mocambique v. British, South Africa Co., De Souza v. Samb 1892 2 Q B 358. Wright, J., observed at p. 366:

The proper conclusion appears to be that, speaking generally, subject to qualifications depending on personal obligation, it is a general principal of jurisdiction that title to land is to be directly determined, not merely according to the law of the country, where the land is situate, but by the Courts of that country, and this conclusion is in accordance with the rule ordinarily adopted by the jurisprudence of other countries.

Title to immovable property may therefore be determined directly or indirectly only by the law of the State, and by the courts of the State in which it is situate. A decision of a foreign Court directly relating to title to immovable property within its jurisdiction will of course be regarded between the same parties as conclusive by the Courts in India; hut that decision is ineffectual in the adjudication of claims to immovables without the jurisdiction of that foreign Court, even if the foundation of title in both the jurisdictions is alleged to be identical A foreign Court being incompetent to try a suit relating to immovable property not situate within its jurisdiction, the grounds on which its decision relating to title to immovable property within its jurisdiction is founded will not debar investigation into title to other property within the jurisdiction of the municipal courts, even if the latter properties are alleged to be held on the same title. Every issue and every component of the issue relating to title to immovable property must be decided by the Court within whose jurisdiction it is situate: to recognise the authority of a foreign court to adjudicate upon even a component of that issue would be to recognise the authority of that Court to decide all the components thereof.

Likewise scope of existence and extent of the applicability of Section 13 of the Code, which has been examined by the Supreme Court in the very case and discussed in para-14, which reads as under:

(14). Section 13 of the Code of Civil Procedure, Act v. of 1908, provides:

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except -

(a). where it has not been pronounced by a Court of competent jurisdiction;

(b). where it has not been given on the merits of the case;

(c). where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d). where the proceedings in which the judgment was obtained are opposed to natural justice:

(e). where it has been obtained by fraud;

(f). where it sustains a claim founded on a breach of any law in force in India.

By That enactment a foreign judgment is made conclusive as to all matters directly adjudicated upon between the parties, except as to cases set out in Clause (a) to (f). The judgment of the Mysore High Court is, it is claimed by the Plaintiffs, not conclusive because -

(1). it has not been pronounced by a court of competent jurisdiction, (2). that on the face of the proceeding it was founded on incorrect view of the international law, and

(3). that the proceeding in which the judgment was pronounced was opposed to natural justice.

is a complete answer to the contentions raised on behalf of the first Respondent that in a suit a question as to whether a foreign judgment is conclusive or otherwise.

Therefore, when the issue of the suit being barred by the principles of res judicata, arises assuming that it is interdependent on the foreign judgment being conclusive and even if it can be proved to be otherwise, in terms of any one of the available clauses of exception that does not arise any issue of fact nor questions independent of the issue of law, but answer is clearly found only on the questions of law as arising in the wake of the exceptional clauses being made good by the Plaintiff.

Therefore, it is obvious that when once the issue of law as to whether the suit is barred by principles of res judicata is answered, there does not remain any further issues of fact, which are required to be answered even otherwise also, and the suit comes to an end with the answer to the issue of law, which was requested by the first Defendant to be tried as a preliminary issue.

In this regard, though Sri. Raghavan, learned Senior Counsel appearing for the first Respondent, has placed reliance on the judgment of the Supreme Court in the case of ABDUL RAHMAN [supra] to contend that even determination of the issue of law if is one which in turn depends on the issue of facts, as arising in the suit, then that issue cannot be determined as a preliminary issue and submits that the issue of law viz., the suit being hit by the principles of res judicata being depended on the conclusiveness of the foreign judgment in terms of Section 13 of the Code and that question is in turn depending on the disputed questions of fact and therefore it cannot be try as a preliminary issue.

On the strength of this judgment, we find in the first instance that there is no independent issue of fact, which has either been framed for determination or has arisen in the wake of the pleadings of the parties and therefore the argument becomes academic.

Even here, we find this judgment in turn is only following the judgment of the Supreme Court in the case of S.S. KHANNA [supra] and extracting paragraphs of this judgment for the purpose of decision in Ramesh B. Desai [supra], which has already been extracted and it clearly lays down the law that if answer to the issue of law is interdependent on an answer to the issue of fact also, an issue of fact which arises for determination in the case and which has been so framed and nevertheless trying the issue of law alone as a preliminary issue, resulting in lopsided trial of the suit and that should be avoided and in the instant case, while the issue of law viz., the suit is hit by the principles of res judicata being not interdependent on any other issue of fact, but can be answered by itself, and in fact there being no issues of fact framed for determination in terms of the judgment in RAMESH B. DESAI [supra], there is absolutely no bar or impediment for trying the issue as to whether the suit being hit by the principles of res judicata as a preliminary issue, even within the terms of Clause-b of Sub-rule (2) of Rule 2 to Order XIV Code of Civil Procedure.

In this regard, we may clarify one another aspect that even while trying an issue of law, there may be need for examining or answering the disputed questions of law as well as disputed questions of facts also, but that does not mean that the issue of law gets itself converted into something else. It remains an issue of law. The issue of law in the present suit is being whether the suit is hit by the principles of res judicata. The bar for trying this as a preliminary issue is only when there are issues of facts to be tried in the suit and answer to the issues of fact being very necessary for a satisfactory answer to the issue of law. Such a situation does not arise in the present case at all, because there is no issue of fact, either framed or arising even as we have examined, on the admitted pleading and material made available as part of the record, no such disputed Issue of fact arises in the present case.

In this view of the matter, we find that there was no impediment at all for trying the issue of law as a preliminary issue. However, the learned Single Judge having declined to examine this question as to whether it. can be tried as a preliminary issue or not. on the premise that the court lacked jurisdiction to try the issue as a preliminary issue, the said finding necessarily has to be corrected in this appeal. We are also compelled to interfere with the impugned order, as for the finding as recorded by the learned single judge, the question of jurisdiction being made the basis for declining to examine the question and a question of jurisdiction always going to the root of the matter and an erroneous answer to this question necessarily warranting correction before an appellate court, we are compelled to exercise the appellate jurisdiction and to set aside the order under appeal.

The application was one for framing of additional issue and with a request to try it as a preliminary issue. On our finding that the issue can be tried as a preliminary issue, further question would be as to whether it is to be made so on the exercise of the discretion by courts?

While on this question, if the learned Single Judge should have exercised discretion, one way or the other, there would not have been any scope for the appellate court to interfere or to indicate that the other view was possible. In the present case, the discretion being not at all exercised, but the requirement of examination of the question as a preliminary issue having been avoided, it is till open to the appellate court to exercise that discretion as to whether it can be tried a preliminary issue or otherwise, when the answer to the question that the issue whether could be tried as a preliminary issue is in favour of the Appellant that it can be so tried as a preliminary issue.

We find in the present case, it is an eminently fit case to try the issue of law as a preliminary issue for the reason that an answer to the preliminary issue can very satisfactorily dispose of the entire suit and there remains nothing else to be examined by this Court in the suit. We say so for the reason that when once the suit is hit by the principles of res judicata, even on the touchstone of the provisions of Section 13 of the Code, the latter comes to an end with that, in so far as it relates to the judgment of the foreign court is concerned. If anything not covered by the judgment of the foreign court still remains for examination, in the present suit, to that extent, the bar does not operate and in respect of all aspects covered by the foreign judgment, if the issues should go against the Plaintiff, to that extent it concludes the matter between the parties.

In the circumstance, this appeal is allowed, the request for trying the issue of law viz.. Does Defendant No. 1 prove that the suit is barred by res judicata as a preliminary issue is granted. It is now for the learned single judge to proceed with the trial and to take up the issue of law as a preliminary issue. The order passed in this appeal and all observations contained herein are for the purpose of disposal of this appeal alone and therefore does not have any bearing on the determination of the issue in the suit.