MACDONELL ERROL MACKAY Vs. OSWALD FORBES

JUDGEMENT

(1.) This is an appeal from a judgment and order of the High Court of Judicature at Fort William in Bengal, in its civil appellate jurisdiction, dated 11 April 1938, which allowed in part the appeal of the present respondent from the judgment and order of the said High Court, in its original jurisdiction, made by Panckridge J. on 22 July, 1937. The respondent raises a preliminary point as to the jurisdiction of this Board to entertain this appeal in view of the provisions of S. 205, Government of India Act, 1935, which provides as follows : 205.-(1) An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder, and it shall be the duty of every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or withhold a certificate accordingly. (2) Where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any such question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate had been given, and, with the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave.

(2.) This Section imposes on the High Court the duty of considering and determining in every case, as part of its judgment, decree or final order, the giving or withholding of the certificate. On such determination the jurisdiction to entertain an appeal from such judgment, decree or final order depends, and, manifestly, such determination, whether it involves the granting or with-holding of a certificate, should be recorded, not only for the information of the parties, but-a matter of equal importance-also for the certification of this Board and the! Federal Court as to their jurisdiction to entertain an appeal. No such record appears in the present case, nor is there anything to suggest that the matter was considered by the High Court Bench which delivered the judgment and order of 11 April 1938. The same is true of the High Court Bench which certified this case as a fit one for appeal to His Majesty in Council on 15 June 1938, and which was differently constituted. But, as their Lordships have already indicated, the statutory duty fell to be discharged by the Bench which delivered the judgment and order of 11 April 1938.

(3.) In the present suit the appellants seek an order for appointment of the Official Trustee of Bengal to be trustee of the estate of one Alexander John Forbes deceased under the provisions of S. 10, Official Trustees Act (Act 2 of 1913), or, alternatively, for appointment of the said Official Trustee under S. 35, Trustees Act, 1866. The estate of the deceased consisted partly of immovable property situate outside the Division of Bengal. The Official Trustees Act, 1913, was amended by the Government of India (Adaptation of Indian Laws) Order, 1937, which was made by virtue of Section 293, Government of India Act, 1935, and came into force on 1 April 1937. The present writ of summons was taken out on 5 May 1937. Panckridge J. who made the Order of 22 July, 1937, did not consider the Order in Council of 1937, but it was fully considered by the Appellate Bench (Costello and Lort-Williams JJ.), and it will be sufficient to quote some short passages from their judgment : We are quite satisfied that had the attention of the learned Judge been drawn to the alteration effected by means of the Order in Council his decision would in all probability have been otherwise than what it was The question whether the Court can appoint the Official Trustee of Bengal as trustee over properties outside the Province seems to depend upon the provisions of S. 3 as amended by the Order in Council and S. 10, Official Trustees Act In other words, we think that under the provisions of the Act as it now stands this Court is not entitled to stretch its arms, if I may use the expression, beyond the territorial limits of its jurisdiction. The result is that we think that the order made by Panckridge J. cannot stand in so far as it relates to any property not lying or not situate within the territorial jurisdiction of the Court. Mr. Banerji sought to argue that there is ample power in the Court under the general provisions of the Indian Trustees Act. I do not think it necessary to consider that aspect of the matter. This petition was essentially and primarily concerned with the appointment of the Official Trustee as such and the matter is one which quite clearly falls to be decided under the provisions of the Official Trustees Act and that Act alone.