1. This is an originating summons by the plaintiff, taken out by his mother as next friend, in which the plaintiff
claims to be interested in the relief sought as the sole residuary legatee
under the will and codicils of his grandfather Gopal Chandra Sinha, for the purpose of determining the title to the property moveable and immovable of the testator. The originating summons is in the following form:
Let the defendants Ashutosh Mukhorjee, Sadasiva Mitter and Khitindra Kumar Mitter, the executors of the said Gopal Chandra Sinha deceased, all of No. 9, Ghaulpati Lane, and the defendants Sashi Bhusan Sinha of No. 13-A, Teliparha Road, Khitish Chandra Sinha, since adjudged a lunatic, and Purna Chandra Sinha, the three sons of the said deceased, and the defendant Khoka Sinha, a minor grandson by son of the said deceased, and as such claiming or. having an interest in the latter's estate as a residuary legatee under his will and codicils, dated respectively 2nd March 1919, 2nd November 1920, and 3rd Chaitra 1330, B.S., corresponding to 16th March 1924, the last three of No. 26-A, Padmapukur Road, and the defendant deities Sree Sree Raj Rajeswar, Sree Sree Lakshmi Janardan Thakur Shalgram and Sree Iswar Shiva Thakur claiming to bo entitled to properties purported to be dedicated to their sheba by the said wills and codicils by their she bait, the defendant Sashi Bhusan Sinha of No. 13-A, Teliparha Road, aforesaid within eight days after the service of this summons on them, respectively, inclusive of the day of such service, cause an appearance to be entered for them respectively to this summons, which is issued upon the application of the plaintiff Provas Chandra Sinha, a minor by Sreemati Radharani Dasi his next friend, which plaintiff claims to be interested in the relief sought as the sole residuary legatee under the said will and codicils of the said Gopal Chandra Sinha deceased, that the following questions arising in respect of the estate of the said deceased may be determined under Rule 1, Sub-clauses (a) and (g), Rule 2, Sub-clause (a), and Rule 9, Ch. 13 of the rules of this Court 1914, and relief given in respect thereof, that is to say:
I. (1) Whether the purported dedication of the properties mentioned in Clauses 3 and 4 of the said will, as modified by Clauses 2 and 4 of the said codicil of 16th March 1924, is postponed to a period beyond the time allowed for the vesting of legacies, and or whether the same is void for remoteness or otherwise?
(2) Whether the purported gift, under Clause 3 of the said will of property, bearing income sufficient to meet the expenditure of taxes, repairs and thorough repairs in respect of the debuttar, purported to be created as aforesaid, is void for uncertainty and remoteness?
(3) Whether the direction for accumulation contained in para. 16 of the said will is void and bad in law?
(4) Whether the vesting of the several purported bequests under Clause 16 of the said will is postponed till the period of distribution mentioned therein?
(5) Whether the purported bequests of one-third share respectively in the remainder of the said deceased's estate or any one or more of them is void for remoteness as offending against the rule against perpetuities and or for any other reason?
(6) If the said bequests in favour of the sons and grandsons of the defendants Khitish Chandra Sinha and Purna Chandra Sinha, respectively, under the said Clause 16 are void, then, whether the limitations or gifts over in favour of charities, in default of such sons or grandsons being in existence as the period of distribution, are also void?
(7) If the purported dedication under Clauses 3 and 4 and or other bequests under Clause 16 of the said will or any of them fail by reason of their being void as aforesaid, then do such bequests as are avoided sink into and form part of the said deceased's residuary estate?
(8) Whether the bequest of the residuary estate to the said deceased's grandsons by son under Clause 12 of the said codicil of 16th March 1924, immediately vests the said residuary estate in the plaitiff at the death of the said deceased to the exclusion of the latter's after born grandson by son?
(9) Whether the bequest of the said residuary estate under the said Clause 12 of the said last codicil immediately vests the said residuary estate in the plaintiff at the death of the said deceased, but so as to open and let in the said deceased's after-born grandsons by son?
II. How the costs of this application are to be borne, and, if necessary, the estate of the said Gapal Chandra Sinha may be administered?
2. A preliminary issue has been raised by the defendants that the proceeding is a 'suit for land.' and, inasmuch as the immovable property left by the testator is all situate outside the jurisdiction, or in the alternative is partly so situate, and no leave has been obtained under Clause 12, Letters Patent, the Court has no jurisdiction to entertain the suit. It is conceeded by the plaintiff that the only immovable property of the testator which it can be pretended, is within the jurisdiction of the Courts is 103, Darmahato Street, Calcutta, of which the testator was the mortgagee under a mortgage in English form executed on 20th October 1917.
3. In answer to the preliminary objection of the defendant it was contended that the defendants or some of them, by taking steps in the proceeding, had submitted to the jurisdiction, and thereby had waived any objection to the jurisdiction of the Court to hear the summons. In support of this contention learned Counsel on behalf of the plaintiff referred two decisions of Fletcher, J. King v. Secy. of State (1908) 35 Cal. 394 and Shama Kanta & Co. v. Kusum Kumari (1926) 44 Cal. 10, in which it was held that, where leave was necessary under Clause 12, the obtaining of such leave was not a condition precedent to the Court becoming vested with jurisdiction to entertain the suit; and, therefore, when leave had not not bean obtained, the defendant by taking steps in the suit could waive the objection of want of jurisdiction.
4. In the course of the hearing the plaintiff abandoned this contention, and learned Counsel on his behalf frankly conceded - as in my opinion, having regard to the authorities, he was bound to do that failure to obtain leave in a suit, where leave was necessary under the Letters Patent, went to the root of the jurisdiction, and the want of jurisdiction in the Court to entertain the suit could not be overcome or waived by the consent or submission of the parties. Hadjee Ismail, Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub (1874) 13 B.L.R. 91, Ledgard v. Bull (1886) 9 All. 191, Minakshi Naidu v. Subramanya Sastri  11 Mad. 26, Rampurtab Samruthroy v. Premsukh Chandamal  15 Bom. 93, Laliteshwar Singh v. Rameshwar Singh  34 Cal. 615, Ashutosh Sikdar v. Behari Lal  35 Cal. 61, Brij Coomaree v. Alma Chand (1907) 11 C.W.N. 663, Narandas Raghunathdas v. Shantilal Bholabhi A.I.R. 1921 Bom. 267, Green v. Rutherforth (1750) 1 Ves. J. 462, The Queen v. Justices of Essex (1895) 1 Q.B. 38. The view to the contrary that was expressed by Fletcher, J. in King v. Secretary of State for India (1908) 35 Cal. 394 and Shama Kanta Chatierji & Co. v. Kusum Kumari (1916) 44 Cal. 10, with all respect, appears to me to be founded upon a misconception of the ratio decidendi of Moore v. Gamjee (1890) 25 Q.B.D. 244. The decision in that case turned upon Section 74, County Courts Act, 1888 (51 & 52 Vic.) and Cave, J. observed:
Part 3 of the County Courts Act, 1888, is headed 'Jurisdiction and Law,' and Part 4, which includes Section 74, is headed 'Procedure and Trial.' It seems, therefore, that oases which are within Section 74 would come under the head of procedure rather than under the head of jurisdiction, although no doubt this Court would have power to issue a prohibition in a proper case. I think, therefore, that the objection to the jurisdiction of the Court may be waived by taking any step in the proceeding before applying to dismiss the action.
5. In Moore V. Gamjee (1890) 25 Q.B.D. 244, as I understand the decision, the Court did not hold that the parties could waive an objection to the jurisdiction in a proceeding which the Court had no jurisdiction to entertain. Different considerations, of course, arise where a party, by submitting to the jurisdiction in a proceeding which the Court is not incompetent to entertain, purports to waive an objection to the jurisdiction purely personal to himself. The true rule was laid down by Lord Watson in Ledgard v. Bull (1886) 9 All. 191, where His Lordship observed:
When the Judge has no inherent jurisdiction over the subject matter of suit the parties cannot by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismiseal of the suit.
6. In the present case, if the originating summons is a 'suit for land' and leave has not been obtained under Clause 12, Letters Patent, there is an inherent in-competency in the Court to entertain the suit, and no consent or submission by the parties could confer on the Court a jurisdiction which it never possessed. The plaintiff, how ever, contended that the present proceeding is not a 'suit,' and, therefore, is outside the ambit of Clause 12, Letters Patent. In my opinion the proceeding in the present case, which has been commenced by taking out an originating summons supported by an affidavit, is a suit within the meaning of that term in Clause 12, Letters Patent. It is a suit commenced by an originating summons and not by a plaint, as in the case of 'ordinary suits.' See Civil Procedure Code (Act 5 of 1903), Section 26; High Court Rules, Ch. 7, Rule 1, Ch. 13, Rules 1 and 14; and it is none the less a suit because the procedure to be followed in respect of it is more summary than that prescribed for 'ordinary suits.' Indeed, in para. 12 of his affidavit, filed in support of the originating summons, the plaintiff himself has referred to the present proceeding as a suit. The term 'suit' in Clause 12 is not to be construed in a restricted sense, Venkata Chandrappa v, Venkatarama Reddi (1898) 22 Mad. 256. Vaghoji Kuverji v. Camaji Bomanji (1904) 29 Bom. 249, and if the order made on the originating summons will have the same effect upon the title to the immovable property as a decree passed in an 'ordinary suit' for the same relief, it cannot be doubted, I think, that the originating summons is, and is to be deemed to be, a 'suit' within Clause 12, Letters Patent. If the law were otherwise, a ready method would lie at hand for evading the limits set to the jurisdiction of the Court under Clause 12, Pran Kumar Pal v. Darpahari Pal : AIR1927Cal281 , Pashupati Ghose v. Debendra Nath No. 267 A. of 1929 (unreported), Galstaun v. Diana Sarkies : AIR1929Cal227 and In re, Fawsitt (1885) 30Ch. D. 231. The plaintiff further contends that if this proceeding is a suit it is not 'a suit for land' within Clause 12, Letters Patent. What then is a suit for land? In Goculdas v. Chaganlal : AIR1927Cal768 , I had occasion to consider this question, and I venture to repeat the definition of the term set out in that case. The correctness of the construction that was put upon the-term 'suits for land' in that case was not challenged when the case came be fore the Court on appeal, and in the present case all the parties accept that definition as being the true construction of the term according to law:
In my opinion, the term 'suits for land or other immovable property' in Clause 12, Letters Patent moans suits in which, having regard to the issues raised in the pleadings, the decree or order will affect directly the proprietary or possessory title to land or other immovable property.
7. What then are the substantial issues raised in the originating summons in this case and in the affidavit filed in support of it? It is urged by learned Counsel on behalf of the plaintiff that the only relief sought in these proceedings is that the executors should be ordered to administer the estate according to law and there is authority for the view (in which I respectfully concur) that if the plaintiff is merely applying that the executor or trustees be ordered duly to carry out the terms of a will or trust, the proceeding is not a suit for land within Clause 12, notwithstanding that the order made on such an application in the event may indirectly affect the title to land situate outside the jurisdiction. Nistarini Dassi v. Nundo Lal Bose (1902) 30 Cal. 369, Abdul Hussein v. Mahomedally Adamji A.I.R. 1922 Bom. 443. But, in my opinion, the object of these proceeding's, and the effect of the order sought on the issues raised therein, are very different from those for which the plaintiff contends that this originating summons has been taken out.
8. The plaintiff specifically claims inter alia that he is entitled to the whole (of the residuary estate 'of the said testator' to the exclusion of the other grandsons of the testator, and that the purported 'dedication' of the properties made debuttar under the will is void. The plaintiff further seeks relief in respect of the above claims under Chap. 13, Rule 1(a). In my opinion these are the substantial objects for which the originating summons was taken out land the construction of the will is sought merely in furtherance thereof. It follows, in my opinion, that this proceeding is a 'suit for land,' for if the Court determines the above issues the orders made thereon necessarily will affect directly the title to immovable property situate outside the jurisdiction. Vaghoji Kuverji v. Camaji Bomanji (1904) 29 Bom. 249 Goculdas v. Chaganlal : AIR1927Cal768 .
9. It is admitted by the plaintiff that at the commencement of the suit the defendants did not 'dwell, or carry on business, or personally work for gain 'within' the limits of the Court's jurisdiction; that the plaintiff's cause of action, in part at any rate arose outside such, limits, and that leave was not obtained under Clause 12, Letters Patent. I am of opinion, in these circumstances, that this Court has no jurisdiction to entertain this proceeding, and the summons must be dismissed.
10. Lastly, the plaintiff contended that the Court had jurisdiction to grant the relief sought in this proceeding under Section 302, Succession Act (39 of 1925). I am unable to accept this contention. Section 302 is found in Chap. 4, Part 9 of the Act under the heading:
Of the practice in granting and revoking probates and letters of administration,
and the Court, in exercising jurisdiction under that section, is acting in pursuance of the testamentary and intestate jurisdiction with which it is vested under Clause 34, Letters Patent, and not of its ordinary original civil jurisdiction, which is the jurisdiction invoked by the plaintiff in the present proceeding. Further, I am inclined to think that the Court would not be competent, on an application under Section 302, to determine any disputed question of title, the jurisdiction of the Court under that section being confined to the issue of directions to the executor or administrator relating to the management and administration of the estate. See by way of analogy, In re, Lakshmibai (1888) 12 Bom. 638.
11. The executors costs as between attorney and client will be paid out of the estate. Each of those defendants who have separetely appeared is entitled to his costs out of the estate. The costs of the plaintiff will also come out of the estate. The costs of the guardian ad litem will be paid, as between attorney and client, by the plaintiff. The costs are to be taxed as of a hearing.