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1939 Supreme(SC) 56
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, SIR GEORGE RANKIN, AND SIR PHILIP MACDONELL.
ERROL MACKAY - Appellant
Versus
OSWALD FORBES - Respondents
On appeal from the High Court at Calcutta.
Decided On : Nov. 10. 1939.
Solicitors for appellants:Morgan, Price, Marley & Rugg. Solicitors for respondent: Ashurst, Morris, Crisp & Co.
The High Court has a mandatory statutory duty to consider and record whether a certificate is granted or withheld under Section 205 of the Government of India Act, 1935, to determine the jurisdiction of the Federal Court and the appellate board.
Headnote:(A) Government of India Act, 1935 - Section 205 - Official Trustees Act, 1913 - Sections 2, 3 and 10 - Indian Trustees Act, 1866 - Section 35 - Government of India (Adaptation of Indian Laws) Order in Council, 1937 - Statutory duty of the High Court to certify whether a case involves a substantial question of law as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder - Such determination, whether granting or withholding a certificate, must be recorded to establish the jurisdiction of the Federal Court and the appellate board.
(B) Jurisdiction - Absence of mandatory certificate - Where a statutory provision requires the High Court to consider and record the issuance or withholding of a certificate for appeals involving the interpretation of a governing Act or Order in Council, the failure to do so precludes a direct appeal to the appellate board.
Facts of the case:
Executors sought the appointment of an official trustee for an estate that included immovable property situated outside a specific territorial division. A lower court appointed the trustee for the entire estate, overlooking an amendment made by an Order in Council that limited jurisdiction to the territorial division. The appellate court modified the order, limiting the appointment to property within the division. Upon further appeal, a preliminary objection was raised regarding the jurisdiction of the appellate board because the High Court had not recorded a determination regarding the issuance of a certificate as required by the governing statutory framework.
Findings of Court:
The High Court failed to discharge its statutory duty to consider and record whether a certificate should be granted or withheld under the relevant provisions of the Government of India Act, 1935. There was no evidence in the record to suggest that the Bench delivering the judgment had considered this requirement.
Issues: Whether the appellate board had jurisdiction to entertain the appeal in the absence of a recorded determination by the High Court regarding the granting or withholding of a certificate under Section 205 of the Government of India Act, 1935.
Ratio Decidendi: Section 205 of the Government of India Act, 1935, imposes a mandatory duty on the High Court to determine and record the giving or withholding of a certificate as part of its judgment. This record is essential for the certification of the Federal Court and the appellate board as to their respective jurisdictions. Without such a record, the appellate board cannot assume jurisdiction if the case involves the interpretation of the Act or an Order in Council.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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practice and procedure
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appellate jurisdiction
- certification for appeal
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appellate jurisdiction
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trusts
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official trustees
- territorial jurisdiction
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official trustees
Judgement
Appeal (No. 105 of 1938) from a judgment and order of the High Court in its appellate jurisdiction (April 11, 1938), which had allowed in part an appeal by the present respondent, Oswald Forbes, from a judgment and order of the said High Court in its original jurisdiction (July 22, 1937).
By a summons taken out in the High Court in its original civil jurisdiction the appellants, who were the surviving executors of the will of one Arthur Henry Forbes, deceased, sought an order for the appointment of the Official Trustee of Bengal as trustee of the estate of one Alexander John Forbes, deceased, under the provisions of s. 10 of the Official Trustees Act (II. of 1913), or, alternatively, for the appointment of the said Official Trustee under s. 35 of the Indian 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 extensively amended by the Government of India (Adaptation of Indian Laws) Order in Council, 1937, St. R. & O., 1937, No. 269, which was made by virtue of s. 293 of the Government of India Act, 1935, and came into force on April 1, 1937. By the amend ment, s. 2 of the Act of 1913 was amended so as to mean in relation to various Provinces, particular High Courts, and s. 3 of the Official Trustees Act, 1913, which provided that "For the purposes of this Act the High Court at a Presidency-"town shall have jurisdiction throughout the Presidency " was amended to read "For the purposes of this Act the High "Court shall have jurisdiction throughout the Division.”
The present writ of summons was taken out on May 5, 1937.
The summons was heard by Panckridge J., whose attention, however, was apparently not drawn to the amendment of the Official Trustees Act, 1913, effected by the Order in Council of 1937. He made an order appointing the Official Trustee of Bengal to be the trustee of the estate of Alexander John Forbes.
On appeal by the respondent the appellate Court (Costello and Lort-Williams JJ.) held that under the provisions of the Official Trustees Act, 1913, as amended by the Government of India (Adaptation of Indian Laws) Order, 1937, the High Court had jurisdiction only in respect of property situate within the Division of Bengal. They modified the order of Panckridge J. by directing that the Official Trustee of Bengal should be appointed trustee only of that part of the property belonging to the estate of Alexander John Forbes which was situate within the Division of Bengal.
The respondent to the present appeal, alleging that the substantial points of law in issue related to the interpretation of the amendments made in the Official Trustees Act, 1913, by the Government of India (Adaptation of Indian Laws) Order in Council, 1937, raised a preliminary point as to the jurisdiction of the Judicial Committee of the Privy Council to entertain the appeal in view of the provisions of s. 205 of the 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.”
1939. Oct. 2
