De Silva V. De Silva, Et Al.,

1943 Present: Moseley A.C.J. and Keuneman J.

DE SILVA, Appellant, and DE SILVA, et al, Respondents.

238-D. C. Colombo, 1,286.

Public Service Mutual Provident Association (Cap. 207)-Meaning of word orphan-Rule defining term-Validity of Rule 8 (1).

The word "orphan" in section 3 of the Public Service Mutual Provident Association Ordinance includes the children of a deceased child as denned by rule 8 (1) of the rules of the Association.

Where an Ordinance gives power for the making of rules and provides that the rules if made in a particular manner shall have the same effect as if they were made under the Ordinance, and rules are made in the manner provided, the ordinary question of intra vires or ultra vires will not apply but it will be permissible for the Courts to consider whether the rules so made are consistent with the provisions of the Ordinance, and to hold that the rules if inconsistent with the provisions of the Ordinance are bad.

THIS was an interpleaded action brought by the plaintiff, The Public Service Mutual Provident Association. The plaintiff alleged that one C. A. de Silva was a member of the Association. On his death in November, 1939, the plaintiff paid half the sum payable on his death to the first defendant, the son of C. A. de Silva. As to the other half there was a dispute between the first defendant and the other defendants, the children of a son of C. A. de Silva, who had predeceased him.

N. K. Choksy (with him R. A. Kannangara), for the first defendant, appellant.-The chief object of the Public Service Mutual Provident Association is to make provision for the widows and orphans of the members. Section 3 of, and the preamble to, Cap. 207 make this quite clear. The deceased member in the present case left no widow, and the appellant is the only surviving child. The respondents who are the grandchildren of the deceased member cannot claim any share. The word " orphan " has a restricted meaning ; the Shorter Oxford English Dictionary defines it as a fatherless or motherless child. The objects of the Association cannot be extended by any rule made under section 16 of Cap. 207. Rule 8 (1), in so far as it benefits grandchildren, is ultra vires. A rule going beyond the objects of the main Ordinance cannot be given effect to. It is not possible, by way of a rule, to make a new enactment. " If a rule were really repugnant to the provisions of the Act, the rule, though made under the powers of the Act, would not override its enactments ".-Craies on Statute Law (4th ed.), p. 268.

H. V. Perera, K.C. (with him E. B. Wickremanayake), for the second, third, and fourth defendants, respondents.-The meaning of the word " orphan" may vary according to the context, and is wide enough to include grandchildren.
Section 16 (3) of Cap. 207 provides that all rules made under it shall be-as valid and effectual as if they formed a part of the Ordinance. Rule 8, therefore, should be read as part of the Ordinance. In the circumstances no question of ultra vires arises. The conflict, if any, between section 3

and rule 8, should be treated as a conflict between two sections to be found in the same Act. See dictum of Lord Herschell L.C. in Institute of Patent Agents v. Lockwood [L. R. (1891) A. C. 347 a 359.]; Minister of Health v. The King. [L. R. (1931) A. C. 494]

R. A. Kannangara, in reply.-The passage referred to in Institute of Patent Agents v. Lockwood (supra) is only an obiter dictum. That case was decided in 1894, before the danger of delegated legislation was fully realized. The obiter dictum of Lord Herschell L.C. was adopted by Viscount Dunedin, but not by the other Judges, in Minister of Health v. The King (supra). See also Perera v. Fernando 3[(1914) 17 N. L. R. 494 a. 499.].

The words " child " and " children " must be deemed to mean descendants of the first degree only, and do not include grandchildren-Mohamadu Bhai v. David d

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