ADVOCATE-GENERAL OF MADRAS Vs. ALARARUNACHELAM CHETTIAR

JUDGEMENT

(1.) In this case the Advocate-General has instituted a suit under Section 539 of the Code of 1882 on the Original Side of this Court for the appointment of the trustees and the settlement of a scheme for the management of the Rameswaram Temple in the Madura District.

(2.) At the first hearing the case was adjourned to Chambers for the settlement of a scheme, but subsequently objection was taken by the defendant, the present Manager, that his Vakils had no authority to consent to the terms of the reference and also that the Court had no jurisdiction to try the suit. I decided to deal first with the question of jurisdiction, and it has been fully argued before me by the Advocate-General and Mr. S. Srinivasa Iyengar. Two contentions have been raised: that Section 539 does not confer upon the High Court in its Original Jurisdiction power to entertain suits in respect of charities in the mofussal, and that the Indian Legislature had no power to confer such jurisdiction on the High Court contrary to the limitations imposed by the Letters Patent on the High Court in the exercise of its Original Jurisdiction. It will be convenient to dispose of the latter contention first. As pointed out in The Queen V/s. Burah (1878) L.R. 5. 1 A. 178 : S.C. I.L.R. 4 C.172 under Section 22 of the Indian Councils Act, 1861, the Indian Legislature has power to legislate " for all Courts of Justice whatever," but cannot "repeal or in any way affect" the provisions of the Indian High Courts Act for the same year. It is pursuant to Section 9 of that Act that the Letters Patent of this and other Courts were issued; and the only question in my opinion is :--Is Section 539, as construed by the plaintiff, opposed to the provisions of Section 9 of the High Courts Act ? The provisions of the section are as follows: Each of the High Courts to be established under this Act shall have and exercise all such civil, criminal, admiralty, and vice-admiralty, testamentary, intestate, and matrimonial jurisdiction, original or appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established, as Her Majesty may by such Letters Patent aforesaid grant and direct, subject, however, to such directions and limitations as to the exercise of the original civil and criminal jurisdiction beyond the limits of the Presidency Town as may be prescribed thereby; And save as such by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matter aforesaid of the Governor-General of India in Council, the High Court to be established in each Presidency shall have and exercise its jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of abolition of such last mentioned Courts.

(3.) The frame of the section which confers special power to limit the ordinary original civil jurisdiction of the High Courts by Letters Patent may be accounted for by the fact that it was intended, as mentioned in para 16 of the Secretary of State's Dispatch accompanying the Letters Patent, to withhold from the new High Courts the jurisdiction which the Supreme Courts had exercised on the grounds of constructive inhabitancy or otherwise over persons and property beyond the limits of the Presidency Town but within the limits of the Presidency. "This object is effected by Clause 11 of our Letters Patent which confines the original civil jurisdiction of the High Court to such limits as may be declared and prescribed by any law made by the Governor in Council and until then in effect to the city of Madras. The power of altering the local limits of the ordinary original civil jurisdiction is reserved expressly by the Letters Patent to the local and not to the Indian Legislature, but Clause 11 and all the other clauses of the Letters Patent are by Clause 44 declared to be subject to the legislative power of the Indian Legislature so that it cannot be said that it would be inconsistent with the Letters Patent in the present form for the Indian Legislature to confer upon the High Court Original Jurisdiction in a particular class of suits arising outside the limits of the Ordinary Original Civil Jurisdiction as the Letters Patent contemplate that all the provisions therein contained should be subject to alteration by the Indian Legislature. This conclusion appears to me to dispose of the objection that such a provision would be opposed to Section 9 of the High Courts Act, because it has been held by their Lordships of the Judicial Committee in The Queen V/s. Burah (1878) L.R. 5 I.A. 178; s.c. I.L.R. C. 172 that on the true construction of the Indian Councils Act, 1881, and of the High Courts Act, 1861, unless there should be anything to the contrary in the Letters Patent under which the High Court is established, the exercise of jurisdiction in any part of his Majesty's Indian territories by the High Court was meant to be subject to and not exclusive of, the general legislative power of the Governor-General in Council as to "all Courts of Justice whatever"--page 190. And later on their Lordships after quoting the terms of the 8 section which is now in question observe : " The authority of the Indian Legislature over the jurisdiction of the High Courts (so far at all events as the exercise of that authority must be consistent with His Majesty's Letters Patent) is here distinctly recoguised." This case appears to me to conclude the question, and I do not think it necessary to refer to the Indian cases which have been cited See among others Achaya V/s. Ratnavelu (1886) I.L.R. 9 M. 253:- ED.