M. Venkatasubba Rao, Kt., Officiating C.J.
1. By this petition the Rajah of Vizianagaram applies that the High Court may, in the exercise of its powers under the Letters Patent and such other powers it possesses, make an order restraining the Court of Wards from sending his minor children to Great Britain and if necessary, appointing some suitable person as their guardian. The circumstances in which this application came to be made, will appear from our preliminary order dated the 7th May, 1936, but for the sake of easy reference I shall briefly recapitulate them. Under Section 15 of the Court of Wards Act, the Local Government made a declaration that the petitioner was a disqualified proprietor and directed the Court of Wards to assume Superintendence both of his person and property. The Rajah immediately filed a suit in the Court of the Subordinate Judge of Vizagapatam, impeaching the validity of the order made by the Government and praying for a declaration that it is ultra vires and unauthorised. The petitioner, then learning that the Court of Wards was intending to send his minor children to England on the 9th May, 1936, forthwith applied to the Subordinate Judge for the issue of an injunction restraining it from doing so. It was towards the end of April, 1936, that this application was made, when the Court of the Subordinate Judge was about to close for the summer recess, and the Judge therefore made the following provisional order:
It is desirable that the children should not be sent away from India without intimation to the plaintiff, who is their natural father.... I therefore direct the defendant to inform the plaintiff fifteen days in advance of their intended departure, so that if it is to happen in the summer recess of this Court, the plaintiff may move the High Court, if necessary, to grant an injunction....
2. The petitioner accordingly sought the protection of the High Court and Lakshmana Rao, J., who heard the application, dismissed it, observing shortly that the suit itself prima facie appears to be incompetent and no petition in such a suit, can lie. From this order the petitioner filed an appeal, which came up before us in May last, just before the long vacation. I must ob serve that one of the curious features of this case has been that the petitioner has argued his case in person with a view to demonstrate, I believe, that the imputation that he is mentally unsound, is wholly unfounded. Several questions were raised and strenuously argued and we found it necessary to adjourn the hearing to some date beyond the Court's recess. To this 'aspect we referred thus in our preliminary order already adverted to:
We suggested that the case might He over and be disposed of by the Vacation Judges during the recess. But we are told that the minors' passage has been booked and it is essential that they should be allowed to leave on the 9th. Consequently our suggestion that the Vacation Judges may dispose of the case cannot take effect.... Again, if the minors are to be sent out of the country as intended, they must, we understand, take train in an hour or two. T4ie question therefore is, does the balance of convenience require that the minors should be permitted to sail at once or their departure, granting that eventually the Court of Wards succeeds, should be postponed for the present?
3. The arguments covered much ground and in view of certain questions of, jurisdiction raised, the petitioner was allowed, in order to obviate any technical defect, to file a formal petition invoking our jurisdiction under the Letters Patent, and incidentally it may be observed, if necessary, that this Bench was specially constituted to deal with this matter. After the reopening, the Rajah has accordingly filed a petition, described to be both under the Letters Patent and the Guardian and Wards Act. The Court of Wards challenges the Rajah's right to file the petition, on the ground that under the Court of Wards Act, it has itself become the legal guardian of the minor children. It urges, in the alternative, that in regard to the four matters referred to in Section 23 of the Court of Wards Act, namely, 'the custody, residence, education and marriage' of the minors, it is vested with a discretionary power, in the exercise of which it cannot be controlled by a Court of Law, unless it be shewn that it has acted mala fide, i.e., fraudulently, corruptly or maliciously. It is then maintained that the petition is barred in virtue of Section 50 of the Court of Wards Act. Finally, our jurisdiction is denied on the ground that the infants are residing at Vizagapatam, i.e., outside the local limits of the ordinary original civil jurisdiction of the High Court. With each of these matters I shall presently deal, but for the present it must be stated, that the Rajah vigorously contends that the proposed exercise of its discretion by the Court of Wards (granting that any such discretion is vested in it under the law) is capricious, unreasonable and oppressive. He maintains that he is an affectionate father, mentally quite sound, but that the action which the Court of Wards proposes to take is such as is likely to render a normal man insane. Referring to himself, he says that he was educated at Mayo College, Ajmere and obtained the Chiefs' College Diploma, that he is a licensed Air Pilot, that he has extensively travelled throughout India and made short sojourns in England and on the Continent and that he has been permitted to possess modern firearms and ammunition and has obtained a motor car driving licence. He says further that two competent doctors, one of whom belongs to the Indian Medical Service and is the Principal of the Medical College, Vizagapatam, have certified that he is free from any mental disorder. He goes on to say that his children are of tender age, the girls being 14 and 10 years old and the boys being of the ages of 12 and 9. He asserts with emphasis that the removal of the children will greatly imperil their well-being and what he urges in this respect is as follows:
Of the children, the two boys are being educated at school in Vizagapatam and each of them has a wholetime Graduate tutor and the two girls are being taught by Roman Catholic European Nuns, and I am enhancing the knowledge of the four to the extent I can. I see no sense in the children being separated from their countrymen and in their having no manner of education in their language. India is not a barbaric country; it has schools and colleges, some of which are as good as the best of them in England. Just as blade bears cannot survive in the Arctic regions and white bears can, my children may not be able to survive the severe cold of the winter in England, while English children are generally able to do so. The severeness of the English cold is such that a large number of English people leave England and go to the south of France in the winter. The percentage of Indians of British India going for school education as compared with those going for collegiate and post-school study, is almost nil.
4. I have thought fit to quote this passage at some length, as it has a bearing on the question of the exercise of discretion to which I shall advert later on. Stress is also laid on the fact that the threatened removal of the children out of the jurisdiction would in itself furnish sufficient ground for our interference. To avoid any misunderstanding, I wish to observe that whether the father has become unfit to be the guardian of his minor children under Section 19(b) of the Guardian and Wards Act, is a matter, which would fall to be considered, if at all, at a later stage. For the present, therefore, I refrain from alluding to any allegations made against the petitioner, such as, that he is so erratic that the minors, if permitted to associate with him, are likely to be contaminated. There is one further matter I must notice before I proceed to deal with the contentions raised. The nearest relations of the infants are, their father the petitioner, their mother the Ranee, their ueicle the Maharajkumar of Vizianagaram, and lastly their grandmother, the Dowager Ranee. The Court of Wards alleges that its decision was taken after consulting these four relations and that it received, the approval of all excepting the father; but during the argument the proposal was condemned by every relation other, than the mother, and in this connection I must remark that although the petitioner was eager to argue in person even the intricate questions of law that this petition has raised, he found himself out of his depth, but the Dowager Ranee, who supported him, was ably represented by Mr. Vepa, a junior Advocate, whose industry and research were such, that we obtained considerable assistance from his argument. Besides the Dowager Ranee and the Maharajkumar, there are other relations, though not so near (the petitioner's sister, grandfather and grandmother), who filed affidavits expressing their disapproval. The reason for my referring to these facts is this. The Court of Wards insists that what really matters, was the attitude taken by the relations when its decision was reached; but we pointed out in the course of the argument repeatedly that the paramount consideration being the welfare of the minors, if its decision required to be revised in the light of subsequent events, it ought not to hesitate to do so and should not allow any question of prestige to stand in its way. These shortly are the facts connected with this petition, and I shall now proceed to deal with the contentions raised.
5. The first contention that I shall examine is that based upon the terms of Section 23 of the Court of Wards Act. It is urged that the rights possessed by the petitioner as the father in respect of his minor children came to an end consequent on the action taken by the Local Government under Section 15. The superintendence was assumed not only of the property of the petitioner but also of his person; it is said that in such a case, the wards of the ward become virtually the wards of the Court of Wards. Whether such a far-reaching result inevitably follows from the provisions of the Act, is a question which needs careful examination. Does the Act, though not by express enactment or by necessary implication, nevertheless deprive the disqualified proprietor, and as I shall show, even third parties sometimes, of valuable legal rights? - that in short is the question to be decided. Section 23 runs as follows:
The Court may make such orders and arrangements, as it may seem fit, in respect of the custody, residence, education and marriage-
(a) of any ward whose person is for the time being under its superintendence,
(b) of any minor child, minor brother, or minor sister of such ward, who, in the opinion of the Court, is entitled to maintenance at the charge of the ward's estate,
(c) of the ward's next male heir being a. minor and also entitled to maintenance.
6. It is maintained that the control of the Court of Wards over the specified minor relations of the ward in respect of the four matters mentioned here, namely, custody, residence, education and marriage, is absolute and unfettered. The learned Advocate-General further suggests that these four incidents exhaust what is known as the right of guardianship, which consists of these four component parts, in other words, while the disqualified proprietor becomes the direct ward of the Court of Wards, his minor relations named in the section become the indirect wards of the Court. This contention is opposed to the entire scheme of the Act and is inconsistent with its provisions. Section 15 shows that it is the proprietor that is disqualified and it is his person or property alone over which the superintendence is assumed. Under Section 19 the person that becomes a ward under the Court is the disqualified proprietor, and if it is intended that his minor relations also should be the Court's wards, the section would have said so. Section 24, which immediately follows Section 23 and along with which it should be read, dispels the idea that under the Act, the disqualified proprietor and his minor wards are treated alike. While the section specifically provides for the appointment of a manager or guardian for the property or person of the proprietor himself, there is nothing there to suggest that similar powers are conferred over the person or property of the ward's minor relations. Further, there is no warrant for reading into the Act more than it actually enacts and especially in matters concerning the rights of a subject, it would be wrong to hold that valuable rights are taken away by implication. The primary purpose of the Act is to preserve and safeguard the property of certain properties and as ancillary to that main purpose, the Court of Wards is empowered to assume is some cases superintendence of their persons also. Section 9, the first of the group of sections dealing with this matter, makes it clear that the dis-qualification which the Act contemplates is that which renders the proprietor unfit TXD manage his property and not his person. In four places in this section reference is made to 'property' as distinguished from 'person'. Then, Section 16 declares in no uncertain terms that it is the safeguarding of the property with which the Act is primarily concerned; it emphasises the idea that the compelling factor that leads to this declaration is, that public interests demand that the proprietor's property should be managed by the Court. This being so, even were two constructions possible, the Court should prefer that which would leave unimpaired the rights of the ward in respect of matters not connected with his property, over which the superintendence has been assumed. But the position here is much simpler, there being little or no ambiguity in the matter. Section 34 carefully enumerate the disabilities which the Act imposes upon the ward, but nowhere does it say that he is incapacitated from continuing to be the guardian of his own minor wards. Indeed, the present contention is opposed both to the spirit and the letter of the section. The section is expressed in a negative form but leads inter alia to the following positive results:
(i) A ward may make himself pecuniarily liable in respect of that part of his property not under the superintendence of the Court of Wards.
(ii) He may transfer or create any interest in such property or collect rents and profits of such property.
(iii) He may enter into a contract of marriage; that is an unquestioned right he possesses, although as regards the expenses to be incurred, the Court of Wards in the interests of the estate has a right to fix the amount.
(iv) He can adopt or give permission to adopt with the consent of the Court of Wards, which, however, it cannot arbitrarily or capriciously withhold.
(v) Subject to the same restriction, he can dispose of his property by will.
7. There is nothing therefore either in the language or the purpose of the Act to show that a disqualified proprietor becomes legally incapacitated for all purposes; on the contrary, certain legal rights which he possessed previously, are preserved to him unimpaired. Is it to be lightly assumed that a person, who the Act declares is capable of exercising such legal rights, as making an adoption or executing a will, is to be treated, as has been suggested, as a 'practical lunatic' and deprived of his powers of guardianship?
8. Section 9, it must be borne in mind, deals with four different categories of disqualified proprietors. Leaving out the case of women covered by Clause (b) (which has no bearing on the present discussion), the proprietors falling under Clause (a) and (c), namely, minors and lunatics should be carefully differentiated from those falling under Clause (d). As regards the former two categories, certain disabilities attach to them under the general law; but the disqualified proprietors governed by Clause (d), like the present petitioner, are created by the Act, by the provisions of which alone, the extent and the nature of their disabilities must be determined. The only possible inference therefore to be drawn from the sections to which I have adverted is, that it would be contrary both to the scheme and the language of the Act to hold that the power of the disqualified proprietor ever his children, has been in any way affected or curtailed. The same result is arrived M in another way. I have shown that there is not, a single provision which enacts or from which it can be inferred, that the Court of Wards, by becoming the guardian of the disqualified proprietor, ipso facto becomes the guardian of his own wards. If the Court of Wards does not become their guardian, is there any reason to hold that the pre-existing rights have been altered or affected? That they must have some guardian cannot admit of doubt; it reasonably follows that the person who was their guardian previous to the proprietor being disqualified, continues to be so. This raises a question as regards the rights of third parties also. The following illustration will serve to make that point clear. Suppose there are two minor brothers, of whom the elder is the holder of an impartible estate. Their parents are dead and their paternal uncle is their natural guardian. If the elder brother has been made a ward of the Court of Wards, does that put an end to the uncle's right of guardianship over the other minor? Here the uncle is not the disqualified proprietor but a third party, and the contention urged seems to assume that even such third party's powers are taken away. A construction which leads to such an anomlaous result, no Court ought to accept.
9. My view based so far on the Court of Wards Act receives further support from the Guardian and Wards Act, with the relevant provisions of which I shall now proceed to deal. Section 19 provides (I quote only the material part):
Nothing in this Chapter shall authorise the Court (i.e., the Court of Law) to appoint or declare a guardian of the person....
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint guardian of the person of the minor.
10. This section removes from the jurisdiction of the Courts of the land, the minor wards under the Court of Wards, but does not exclude the minor relations of such wards. The present contention; would have been sound, had Section 19 contained a further clause to the following effect:
(d) of any minor child, minor brother or minor sister of a ward under the Court of Wards.
11. Now, turning to Section 41, the next relevant section, it enacts inter alia that the powers of a guardian of the person cease [Section 41(i)(b)] by the Court of Wards assuming superintendence of the person of the ward. It does not say, as it ought to have said if the present contention were right, that those powers cease 'by the Court of Wards assuming superintendence of the person of the guardian of the minor ward' for be it noted that a minor is competent to act as guardian of his own minor wife or child (see Section 21 of the Guardian and Wards Act). Unless by express statute, no subject can be deprived of his rights under the law I take this to be a fundamental principle. Here, the two relevant statutes to which I have refarred, far from taking away the rights in question, contain positive indications which strongly suggest the very opposite. There is another part of Section 19, very pertinent to the present enquiry. I quote again so much of it as is material:
Nothing in this Chapter shall authorise the Court to appoint or to declare a guardian of the person.
(b) of a minor whose father is living and is not in the opinion of the Court unfit to be the guardian of the person of the minor.
12. This shows that if the Court of Wards desires to put an end to the guardianship of the petitioner, it should, to achieve that object, institute a proper proceeding under this section, in which case, it would be bound to show affirmatively that the father is unfit to be the guardian of the persons of his minor children. There is, however, in the Guardian and Wards Act, Section 3 which saves the jurisdiction of the Court of Wards and this brings us to the question, does Section 23 of the Court of Wards Act curtail the powers of the father? If it does, nothing in the Guardian and Wards Act can derogate from the authority of the Court of Wards. That is the question which therefore remains now to be considered.
13. I have said that the learned Advocate-General has contended that the effect of Section 23 is to make the Court of Wards the legal guardian of the minor relations of the ward specified there. That contention, I have held, is untenable and opposed to the purpose of the Act. The learned Advocate-General puts forward an alternative contention: granting that the Court of Wards has not the full rights of guardianship, Section 23 confers upon it at any rate, certain defined rights, in the exercise of which, it cannot be controlled by a judicial tribunal. His argument involves that in respect of the four matters - custody, residence, education and marriage of the minors indicated - the rights which originally vest in the legal guardian, become, by virtue of the section, transferred to the Court of Wards. If this contention is right, what remains in the legal guardian is a truncated right, no more in fact than a merely theoretical right, as the four ingredients referred to above constitute, without question, some of the most essential incidents of a right of guardianship. In effect the argument is, if the Court of Wards is not the guardian in the strict sense of law, for all practical purpose it possesses that character. The provision, if properly understood, does not lend the slightest support to this contention. What is conferred upon the Court of Wards by Clauses (b) and (c) of Section 23 (with those clauses alone we are here concerned), is not a right, but a power and a good deal of confusion has been imported into the argument by failing to distinguish the one from the other. The purpose of those clauses is merely to make that, legal and possible, which otherwise the Court of Wards would have no right or authority to do; it is empowered to incur charges or make disbursements, which it would have no right to incur or make, in the absence of that provision. But the power so conferred is for the benefit of the persons indicated in the section. When a statute confers authority on some public body or person, in terms simply permissive or enabling (by the use of expressions, such as, 'may' or 'shall have power'), the question has often arisen, whether the power so conferred is merely a discretionary power or has a compulsory force. The learned Advocate-General contends that every one of the enabling words in every clause of Section 23 is to be construed as creating a duty, in other words, as mandatory. This may be granted as it is not to his opponent's interest to contest this proposition. But what follows? Is the power to be regarded as having been conferred upon the Court of Wards for its own benefit, in which case the power may amount to a right, or for the benefit of others, namely, the persons specifically pointed out in the clauses in question? There can be no doubt, having regard to the scope and the object of the Act, that the second of these two alternatives is what is intended. Numerous statutes have made us familial with instances where public bodies have been entrusted with powers for the benefit of persons specifically indicated, and it is incontestable that no question of exercising the power can arise unless, when the case arises, its exercise is duly applied for by the party, for whose benefit the power is reposed. In Julius v. Lord Bishop of Oxford (1880) 5 A.C. 214, Earl Cairns, L.C., points out that in Macdougall v. Paterson (1815) 11 C.B. 755 : 138 E.R. 672, Chief Justice Jervis stated the rule to be,
that when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised to exercise the authority when the case arises and its exercise is duly applied for by a party interested, and having the right to make the application. (P. 224.)
14. Earl Cairns, L.C., himself expresses the idea thus:
Where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised. (P. 225.)
15. Lord Blackburn deals with the point in the following passages:
If the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it, for the benefit of those who have that right, when required on their behalf. (P. 241.)
The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. It is far more easy to show that there is a right where private interests are concerned than where the alleged right is in the public only, and in fact, in every case cited, and in every case that I know of (where the words conferring a power are enabling only, and yet it has been held that the power must be exercised), it has been, on the application of those whose private rights required the exercise of the power. (P. 244.)
16. In deciding whether the intention of the Legislature is to grant a mere discretion or to impose a positive duty, it is pointed but in the judgments delivered in the case cited, that regard should be had inter alia to the general object of the statute with reference to which the question arises. Similarly, for determining whether a power is reposed in a statutory body for its own benefit or for the benefit of certain specified persons or class of persons, it is of the utmost importance to consider, what the object is which the Legislature may be presumed to have intended. The abject of the Act is to preserve the estate of a disqualified proprietor, and how is this object achieved or furthered by the Court of Wards being enabled to assume control over his minor relations?
It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights or depart from the general system of law without expressing its intention with irresistible clearness'. (Maxwell on the Interpretation of Statutes, 7th Edn., p. 71.)
17. Why should it be assumed that for no intelligible reason, a public body whose function is to preserve the estate of A, is given the right to have the physical control of the persons of B or C or D? On the other hand it would lead to no such injustice or absurdity to hold that a power has been conferred upon the Court of Wards to be exercised for the benefit of the minor relations when required on their behalf. Throughout in the argument, it was wrongly assumed that Clauses (&) and (c) of Section 23 conferred an indefeasible right on the Court of Wards, which it could exercise at its pleasure. The true effect of those clauses, as I have been endeavouring to point out, is to empower the Court of Wards to provide, when required, for the dwelling of the minor relations, such residence as it thinks fit, and not to enable it even without being required, to thrust upon them a house in which they can be compelled to live; similarly, when called upon to provide for their education, to incur such charges as it may deem fit and not, even without an application for the exercise of the power, to compel them to attend a particular school or to pursue a particular course of studies. The point, as I conceive it, is really a simple one, but owing to the confusion that has been imported, the matter has been argued at great length at the Bar. The reason for holding that when public officers are empowered to do certain things for a third person, the words are to be construed as mandatory, is stated to be,' that the power is placed with the depositories, not for their benefit, but for the benefit of such third party, to meet the demands of right (Maxwell on the Interpretation of Statutes, 7th Edn., pp. 213 and 214). In the light of these principles, the meaning of Clauses (b) and (c) of Section 23 becomes perfectly clear. Certain minor relations of the disqualified proprietor are to be provided maintenance out of the estate, the more important incidents of what is shortly termed the maintenance right being set out in the section, as comprising 'custody, residence, education and marriage.' The clauses confer on the Court of Wards 'a legislative right and power' (per Lord Penzance in Julius v. Lord Bishop of Oxford (1880) 5 A.C. 214 , to make arrangements for the purposes specified, if required, or if duly applied for, in other words, it makes legal and possible-the incurring of the expenses and charging them to the estate. That is the scope and effect of the relevant clauses of the section, and it would be a perversion of the Act to call this power a right and to argue that in the exercise of that right the authority of the Court of Wards is absolute and unfettered. It will be seen that I have confined my remarks to Clauses (b) and (c) alone, for, the position under clause (a), which refers to the disqualified proprietor himself, is entirely different; the Court of Wards having been constituted his guardian by the Act, it possesses in relation to him a legal right as opposed to a mere power. But that is a matter with which, as already observed, we are not concerned.
18. A brief reference to Section 48 in this connection becomes necessary. It says:
No act done in the exercise of any discretionary power conferred by the Act shall be questioned in any Civil Court.
19. But how does any question of discretionary power arise in the case at all? As pointed out above, the power vested in the Court of Wards is not such as is available against the minor; that is confided to it for their benefit and for enabling it to charge the expenses to the estate.
20. Before leaving this subject, I must observe that some reliance has been placed upon Section 67 of the Court of Wards Act, which provides that:
'Whoever without the previous consent of the Court, abets the marriage of any of the persons specified in Clauses (a), (b) and (c) of Section 23, shall be liable on conviction' to a fine or imprisonment.
21. It is said that this section by implication recognises the power of the Court of Wards in respect of, at any rate, the marriage of the persons mentioned. One of the persons referred to in Section 23 is the disqualified proprietor himself [Clause (a)]. I have already pointed out while dealing with Section 34 that it enacts that the disqualified proprietor's capacity to enter into a contract of marriage remains unaffected in spite of Section 23. Thus, by entering into a contract of marriage the disqualified proprietor himself does not violate any provision of law; but Section 67 declares that any one abetting his marriage commits an offence and is liable to be punished. This section leads to a strange anomaly and hardly fits in with the scheme of the Act or its other provisions, and abruptly occurring as it does in the Chapter relating to penalties, cannot be treated as affecting the rights under the general law. We are not, however, concerned in this case with the marriage of any person and so Section 67 is not really relevant.
22. The learned Advocate-General has addressed a lengthy argument with a view to show, that where a public body has statutory powers conferred upon it with a discretion in regard to their use, its decision cannot be contested unless it has acted mala fide, that is, as he puts it, fraudulently, corruptly or maliciously, Westminster Corporation v. London & North-Western Railway (1905) A.C. 420. With this I shall presently deal, but in view of the opinion already expressed by me, this question does not arise. When construing a statute of this sort, the first thing to ascertain is what powers the public body has been invested with; the second thing is to ascertain whether it has bona fide exercised those powers for the purposes for which the Legislature has conferred them. Lindley, M.R., in Goldberg & Son v. The Mayor, etc., of the City of Liverpool (1900) 82 L.T. R 362. I have held that the Court of Wards has not been confided the power which it claims; this being so, the second question whether it has bona fide exercised the alleged power, does not arise. But granting for a moment that the power in question has been conferred on it with a discretion how it is to be used, I am prepared to hold without the slightest hesitation, that those elements which would preclude our interference, do not exist in the present case. Lord Macnaghten declares in Westminster Corporation v. London & North-Western Railway (1905) A.C. 426:
It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. (P. 430.)
23. And the expression 'acting reasonably' is explained later on as meaning 'with judgment and discretion' and Turner, L.J., is quoted in support of this statement (p. 433). Sir Francis Jeune in Goldberg & Son v. The Mayor, etc., of the City of Liverpool (1900) 82 L.T. R 362 to which I have referred, defines the expression 'bona fides' in terms particularly appropriate to the facts of the present case. The test according to him is, has the public body acted bona fide in the sense that it has fairly endeavoured to ascertain what is necessary or expedient, clearing its mind from personal motives and personal feeling? (p. 367). I quite realise that the mere fact that another person might arrive at a different conclusion, is no ground whatsoever for reviewing the decision of the public body, in whom the discretion has been vested. But I wish to apply the two tests, mentioned above - those laid down by Lord Macnaghten and Sir Francis Jeune - with a view to see whether the decision of the Court of Wards is reviewable or not.
24. The Raja of Vizianagaram belongs to an ancient family and is the foremost among the Zamindars of the Presidency. The income his estate yields is about 22 lakhs, the highest in the Province and the peishcush amounts nearly to 6 lakhs. The petitioner's father's predecessor attained great distinction, was granted the personal title of Maharajah and created a G.C.I.E. The latter's immediate ancestor was made a K.C.S.I. and upon him was likewise bestowed the personal distinction of Maharajah (Gazetteer of the Vizagapatam District, pp. 338 and 340). These facts I advert to for showing that this family has attained a predominant position in the Presidency. That it has established itself in the affections and hearts of the public of the Northern Circars, is common knowledge.
25. The petitioner protests with great force against his minor sons and daughters being sent to England. He maintains that he is deeply attached to his children, whose removal will cause him great mental anguish and imperil their own well-being and happiness. The action of the Court of Wards, he says, is almost without precedent, as never before has a boy or girl of tender age from the landed aristocracy, been sent abroad for purposes of education, The proposal has roused the resentment of his nearest relations who feel that it is opposed to their cherished usages and traditions. His mother, the Dowager Maharanee, a lady greatly respected and the seniormost member of the family, and his brother, the Rajakumar of Vizianagaram, have filed statements condemning the proposed step in no uncertain terms. There are in this country many institutions where children of the status and position of the minors can be received and educated. One such institution is Mayo College, Ajmer, which as the petitioner points out, His Majesty the King as the Prince of Wales described as 'the Eton of India' (From the speech delivered at the Mayo College on the 28th November, 1921). Sir George Anderson the Educational Commissioner with the Government of India, recently referred to 'the record of achievement and the high position which the College now holds.' Mr. D.G.H. De La Fargue, Secretary to the Agent to the Governor-General, Rajaputana, refers to the 'acute sense of the esprit de corps and pleasant atmosphere which pervades the whole College.' 'Apart from Ruling Princes and their relations, only the sons of land-holders of particular ranks are eligible for admission.' (See the Annual Report on the working of the Mayo College, Ajmer for 1934-35.) Another institution of the same kind is the Rajkumar College, Raipur, which turns out boys 'well equipped to take charge of their States and Zamindaries.' (See the report of Mr. Wilcock, Secretary to the Agent to the Governor-General, Eastern States, contained in the Annual Report on the Rajkumar College, Raipur, for 1934-35.) There are three more such institutions in India and as regards them it has been observed that:
In point of buildings, staffs and organisations these institutions approach English Public Schools. See Sir Stanley Reed's Indian Year Book, 1935-36.)
26. The petitioner mentioned various other grounds:
First, that a prolonged stay in England would make it difficult for the minors upon their return here, to re-adapt themselves to Indian conditions;
Secondly, that the absence of instruction in the vernaculars would be highly detrimental to their interest;
Thirdly, that they would be strangers in their own land and would find their natural environment unsuited to them;
Fourthly, that the boys would lose touch with their tenantry, whose affections they would alienate - a serious handicap when they enter on the administration of the estate; and that in the case of the girls the public would look upon the step with the utmost disfavour.
27. We find it difficult to ignore or resist any of these arguments. Not one of them has been answered by the Court of Wards, which simply maintains that it has a legal right which it cannot allow to be challenged. It has made one suggestion and no other, namely, that it is necessary that the children should be removed from the alleged pernicious influence of their father. This objection can be easily overcome. The father has expressed -willingness to be subject to such restrictions as may be imposed upon him. We made it clear that we would be prepared to make such order as would have the effect of keeping the minors out of the reach of the petitioner, whose access to them would be carefully and strictly regulated. I have given this matter my most anxious consideration and feel constrained to say, that applying every test, the exercise of the power has not been reasonable or bona fide. In the words of Lord Macnaghten, a public body entrusted with a statutory power must act 'with judgment and discretion'. It appears to me, I say so with great reluctance, that these two requisites are entirely absent. As against every near relation of the minor, the father, the uncle and the grandmother the only person who favours the proposal is the minors' mother, who, for reasons not clear, seems, disposed to prefer a sojourn abroad. It has been hinted that we should pay no regard to the wishes of the father, as he is addicted to abnormal and eccentric habits. On this we are not competent to form any judgment at present. But the petitioner has, as already stated, argued his case in person and his behaviour in Court has not shown the slightest signs of mental instability; on the contrary, he behaved with great dignity, moderation and restraint and his bearing and address were marked by refinement and courtesy. Even when serious imputations were made against him, he was not heard to make one harsh remark either against the Court of Wards or against his wife. For this part of the case, it may be assumed that circumstances exist which would induce the Court to interfere with the father's control, but that is not the point that is now relevant. The question is, the only ground alleged, namely, the possible contamination of the children disappearing, is there any reason why the Court of Wards should transport the children to England, flouting the wishes of the father and the other near relations? I cannot but recall in this connection, the pregnant observations of Lord Macnaghten, who thus describes the position of public bodies entrusted with the exercise of statutory powers, involving the invasion of private rights:
It seems to me that when a public body is exercising the statutory powers conferred upon it for the benefit of the public it is bound to have some regard to the interest of those who may suffer for the good of the community. Westminster Corporation v. London & North-Western Railway. (1905) 5 A.C. 426 .
28. Here, assume for a moment that the Act has deprived the Rajah in the public interests (Section 16) of his legal rights; then as a matter of simple justice, his wishes and inclinations ought to count for something and not to be wholly disregarded. Even putting aside the father's wishes, in the children's interests, which must be the paramount consideration, their removal from the country at the most impressionable period of their lives seems very undesirable. Nor has anything been adduced to justify the attempt to remove them from the jurisdiction of the Courts of the Province. However, as I have said, my view being that the Court of Wards does not possess the power claimed, the question whether the exercise of the alleged power is bona fide or not, does not arise. But in view of the insistence with which this matter has been argued, I have had, with considerable reluctance, to come to the conclusion (should a finding on the facts become necessary) that the Court of Wards has not acted 'bona fide', (I say so with sincere respect) as that term has been explained by Sir Francis Jeune, or 'with judgment and discretion', in the words of Lord Macnaghten.
29. It is next contended that Section 50 of the Court of Wards Act renders the petition incompetent. It says inter alia that in all suits or proceedings in any Civil or Revenue Court, the ward shall sue and be sued in his own name, and the manager of his property appointed under Section 24 shall represent him as next friend or guardian ad litem as the case may be. A manager has been appointed by the Court of Wards under Section 24 for the property of the petitioner and it may be mentioned that no guardian for the person has been so appointed. It is argued that a disqualified proprietor is wholly disabled from instituting any suit or proceeding, which can be filed by the manager alone on his behalf, in other words, that this section imposes upon the ward a total disability in regard to the institution of proceedings in Court. First, this contention involves that even where the superintendence of the Court is restricted to the ward's property, the alleged disability extends to proceedings relating to his person; it is unnecessary to enquire whether this result is intended. Secondly, it involves that the disability alleged attaches even to the property of which, the Court acting under Section 19, has refrained from assuming superintendence; why this should be so, having regard again to the professed object of the Act, is somewhat difficult to follow. But I prefer for the present not to express any opinion on this question either. The contention involves, thirdly, that the extent of the disability is so great that it exists, even where the intended suit or proceeding relates neither to his person nor property. This contention, in my opinion, ought not to prevail. A disqualified proprietor, can under Section 34 enter into a contract of marriage, as already pointed out; is it to be held that is spite of this, he cannot sue in respect of a breach of promise of marriage? Again, in matters relating to his status, why should he be disabled from filing proceedings intended to assert his rights? For instance, would it be proper to hold that the section is intended to preclude him from instituting a suit complaining against his expulsion from caste? To extend the alleged disability to proceedings of this sort, seems opposed to the scheme of the Act and outside its purview.
30. Apart from the implied intention of the Act, I should prefer to rest my judgment upon the wording of Section 50 itself. It enacts, to start with, that in all suits or proceedings the ward shall sue and be sued in his own name. This requirement has been here fulfilled. The difference between the language of this section and the provision in the Civil Procedure Code relating to suits by or against minors and persons of unsound mind, is most significant. Order 32, Rule 1 of the Code provides that every suit by a minor shall be instituted in his name by his next friend and Rule 2 goes on to say that where such a suit is instituted without a next friend, it is liable to be dismissed. Section 50 of the Court of Wards Act enacts a very different rule. After providing, as already stated, that the ward shall sue and be sued in his own name (that has been complied with here), it goes on to say that the manager of his property shall represent him as next friend or guardian ad litem as the case may be. The result, to my mind appears to be, that a petition constituted as the one in the present case, cannot be held to be defective. The present Section 50 repealed and amended a provision which ran thus:
Every ward shall sue and be sued in the Civil Courts in the name of the District Collector specified in the notification under Section 19 or the Collector appointed under Section 46 as the case may be.
31. The language of the repealed section makes it imperative that the suit shall be brought in the name of the guardian, and the fact that the Legislature thought fit to repeal it and enact a new provision on entirely different lines, ought not to be ignored. The need for the amendment that was made, is illustrated by this case. It is inconceivable that the same person should have been intended to be both plaintiff and defendant, for, that is the effect of the contention that has been put forward. The manager, who, it is urged, ought to have filed the present proceeding, is no more than a 'servant' of the Court of Wards (Section 31), 'subject to its control' and 'bound by its orders' (Section 24 and 28) and required by Section 52 to obtain its previous authorisation before representing a ward in any legal proceeding. My view of the section is this; a proceeding instituted by a male proprietor, not being a minor or a lunatic, is not a nullity, and the fact that the manager does not appear on the record as his next friend, is a mere irregularity and is no ground for dismissing it. Ordinarily, the manager should represent him and where that has not been done, the Court acting reasonably and on proper grounds being shown, ought to give the parties an opportunity to cure the defect. But when, as in the present case, the proceeding is directed against the Court of Wards itself, to pursue the usual course would lead to an obvious absurdity, as it would be contrary to settled principles, to permit the same person to figure both as plaintiff and defendant. And on the facts here, it would be idle to pretend, that the servant of the Court of Wards can effectively represent the petitioner or adequately safeguard his interests. In my opinion, therefore, there is no substance whatever in the contention that the proceeeing is barred by Section 50.
32. If my conclusions so far are correct, it would inevitably follow that this application would have been allowed, had it been filed under the Guardians and Wards Act, before the District Court of Vizagapatam where the minors are residing; but it is maintained that as the petitioner has chosen to move the High Court which has no jurisdiction in the matter, his petition is incompetent and ought to be dismissed. After carefully considering the question, I feel compelled altogether to dissent from this view. Section 3 of the Guardians and Wards Act saves the power of the Chartered High Courts and there is also a provision in the Court of Wards Act (Section 3), which similarly saves the High Court's jurisdiction. If we confine ourselves to the relevant provisions relating to infants in the various charters of justice, the question to my mind presents little difficulty. The argument has covered much ground, in my opinion quite unnecessarily. A careful scrutiny of the Charters will show that the Court is vested with different kinds of jurisdiction, sometimes restricted, sometimes extensive; and at the outset it seems to me that this distinction ought to be borne in mind. To illustrate my point I may refer, taking the Madras High Court Charter of 1865, to a few sections for showing that the extents of the jurisdictions vary. As regards the Original Civil Jurisdiction, Clause 11, declares that it shall not extend beyond certain prescribed local limits. By way of contrast, Clause 34 may be referred to, which says that the High Court's testamentary and intestate jurisdiction is not subject to such territorial limitation. Again, provisions in regard to other jurisdictions, such as, criminal, admiralty and matrimonial, are entirely dissimilar. Now the question is, what is the extent of the High Court's jurisdiction in regard to infants? Clause 17 of the 1865 Charter says that the jurisdiction of the High Court in regard to infants within the Presidency of Madras is the same as that vested in it under Clause 16 of the Charter of 1862; the jurisdiction under the latter provision is declared to be 'that which is now vested in the said Supreme Court at Madras.' Turning to the Charter of 1800 establishing the Supreme Court, the relevant provision is Clause 32, the material part of which runs as follows:
We do hereby authorise the said Supreme Court of Judicature at Madras to appoint guardians and keepers for infants, and their estates, according to the order and course observed in that part of Great Britain called England.
33. It will be observed that this clause confers plenary authority unlike several other clauses which occur in this Charter. In defining the ambit of jurisdiction, Clause 4 uses words of extensive application. It says that the Court shall have (I quote the relevant portion):
Full power to exercise such civil, criminal, admiralty, and ecclesiastical jurisdictions, both as to natives and British subjects, and to be invested with such power and authorities, within the Fort St. George and the town of Madras and the limits thereof and the factories subordinate thereto, and within the territories which then were, or thereafter might be, subject to, or dependent upon, the Government of Madras, as the Supreme Court of Judicature at Fort William in Bengal is invested with, or subject to within the Fort William or the Kingdom and provinces of Bengal, Behar and Orissa.
34. I have set out a good part of this clause, as its language shows beyond doubt that subject to the provisions that follow, the jurisdiction conferred, both as to territory and as to persons, is general and not restricted. Passing on to the succeeding clauses, each of them deals with a different kind of jurisdiction. In Clause 21, for instance, there is a reference to 'British subject' and to the powers possessed by the abolished Recorder's Court. Now turning to the Charter of 1798 establishing that Court, we find in the clause dealing with the -extent of civil jurisdiction, reference is made to 'our subjects, which teer is equivalent to 'His Majesty's subjects', the expression occurring in (1797) 37 Geo. 3, Chap. 142, in pursuance of which statute, the aforesaid Charter was granted. To return to the 1800 Charter, the point I wish to make is this. Clause 4 defines the extent and ambit of jurisdiction and as I have said, the words used there are perfectly general. Then follow several heads of jurisdiction, not in all cases of equal extent some restricted, some not; but in the case of infants with which alone we are concerned, the jurisdiction conferred is plenary for in Clause 32, as already stated, there is no restriction either as to place or persons, as it provides in the most general terms, that the Supreme Court in the matter of appointing guardians for infants, is authorised to follow the same order and course, as that:
Observed in that part of Great Britain called England.
35. It is further material to observe that the power and authority with which the Madras Supreme Court is invested under Clause 4 already quoted, is similar to that possessed by the Supreme Court in Bengal; as regards the jurisdiction over infants, there is no difference whatsoever between the powers conferred on the Madras and the Calcutta Courts (Clause 25 of the Calcutta Charter, 1774). The learned Advocate-General contends that the Supreme Court's jurisdiction over infants is both as to territory and as to persons restricted in the same way as its Original Civil Jurisdiction, in other words, that its jurisdiction is limited to the City of Madras and, outside the city limits, to European British subjects only. We are in effect asked to read into the clause relating to infants, all the limitations that appear in the clause relating to Original Civil Jurisdiction. I fail to see why we should depart from the plain meaning of the provision and read into it restrictive words which do not occur there. It is urged that the view that the High Court possesses a general jurisdiction over infants, would lead to the result that the provincial Courts and the High Court possess a concurrent jurisdiction over them. But does the learned Advocate-General's argument avoid this result altogether? Even according to him, the jurisdiction over infants would extend beyond the city in the case of European British subjects, who undoubtedly under the Guardian and Wards Act are subject, to the Provincial Courts. The argument therefore based upon the supposed anomaly entirely falls to the ground. I agree, with respect with the observations of Sir Arnold White, C.J., who says:
The jurisdiction in connection with the estates and persons of minors is, in my opinion, the jurisdiction which was exercisable by the Lord Chancellor in England acting for the Sovereign as parens patriae when the Supreme Court in Madras was instituted. Annie Besant v. Narayaniah : (1913)25MLJ661 .
36. The contention urged in that case was that the fact that the minors were outside the Presidency, ousted the jurisdiction of the High Court. Here the minors are within the Presidency but outside the City, but for the purpose of the present argument that makes no difference. Referring to Clause 32 of the Letters Patent of, 1800 the learned Chief Justice says:
The language of this clause is quite general and is not qualified by any limitations as to persons or place such as we find in other clauses of these Letters Patent (see, for instance, Clause 4, 21, 22, 31 and 41). Annie Besant v. Narayaniah : (1913)25MLJ661 .
37. There has been a good deal of discussion at the Bar as to what is meant by the expressions 'the British subjects' and 'His Majesty's subjects', occurring in the various statutes and Charters belonging to the period 1773 to 1824. It was then that the Recorder's Courts at Madras and Bombay and the Supreme Courts in the three Presidency towns came into existence:
Before the Government had passed from the company to the Crown, it was a matter of doubt whether natives of India (excepting the island of Bombay which had owe been a Crown possession) were ' British subjects', as that term was occasionally used in Acts of Parliament relating to India. 10, Halsbury's Laws of England, First Edn., p. 588.
38. This has been a moot point on which divergent opinions have been expressed. It is sufficient to refer to the judgments of the Bombay High Court in Ardaseer Cursetjee v. Perozeboye (1856) 6 M.I.A. 348 to show how widely, eminent jurists and writers have differed on this question. Sir Williams Yardley, C.J., in his judgment refers to the opinion of Sir Erskine Perry in support of his extended interpretation of the term 'British subjects'. Sir Charles Jackson, the other learned Judge, who places a narrower meaning on the expression, finds support in the opinion of Sir Charles Grey. Indeed it would be tedious and would serve no useful purpose to attempt a solution. As 'writers on constitutional law point out, the Parliament deliberately avoided a precise definition of the term 'British subjects', and the Act of 1813 (53 Geo. 3, Chap. 155) for the first time expressly proclaimed the sovereignty of the Crown over the company's possessions, then by the Charter Act of 1833 (3 and 4 William IV, Chap. 85) the territorial possessions of the company were continued to it for twenty years 'but in trust for His Majesty, his heirs and successors for the service of the Government of India.' (Keith's Constitutional History of India, 1600-1935, pp. 127 and 131.) True, as observed by the Judicial Committee in another connection in In re Southern Rhodesia (1919) A.C. 211 , if there is a conquest by the company's arms, then by well-settled constitutional practice, that conquest would be on behalf of the Crown. Equally unassailable is the proposition, that all persons born within King's dominions, by whatsoever manner acquired, are natural born British subjects. But this most fundamental principle of British nationality, the statesmen of the period shrank from asserting unequivocally, as they found it sometimes convenient or even necessary, to recognise the formal overlordship of the Moghul Emperor. It is not possible to define exactly at what precise point of time sovereignty became applicable to the various territories which fell under the company's control Mayor of the City of Lyons v. The Honourable The East India Co (1836) 1 M.I.A. 175 . Ilbert observes:
Notwithstanding the declaration in the preamble to the Charter Act of 1813, there was still room for doubt whether the native inhabitants of those possessions were British subjects within the meaning usually attached to that term by Acts of Parliament and whether their status did not more nearly resemble that of natives of the territories in Africa which are under protection but have not been formally incorporated in the British Dominions. (p. 411.)
39. After the assumption of direct control by the Crown under 21 and 22 Vict., Chap. 106, the doubt as to sovereignty no longer existed and the Crown became the paramount power both in theory and in fact. (See 10, Halsbury's Laws of England, First Edition, p. 588.)
40. But how far is this discussion germane to the point at issue? As I have said, I am emphatically of the opinion, and I wish to repeat it, that in regard to the jurisdiction over infants, the relevant clause in the Charter, differing in this respect, from several other clauses, recognises no kind of limitation. So, to my mind, the question as to who were British subjects, possesses little importance. If I am correct in this view, the High Court possesses undoubted jurisdiction in regard to the minors, though not of British birth, resident outside the limits of the Presidency town. But supposing that the jurisdiction of the Supreme Court over infants was confined to British subjects of British descent, what follows? The moment direct control was assumed by the Crown, every native of British India became ipso facto a British subject and from that time onwards nothing could hinder the Supreme Court from exercising jurisdiction over native Indian infants in the mofussal. To put it concretely in 1856 it would be (I am granting this for the purpose of the argument) beyond the competence of the Supreme Court to assert jurisdiction over native Indian minors outside the city, but in 1859 such a bar would no longer exist. This seems to my mind simple enough, for I stress once again that under Clause 32, the jurisdiction is general and it contains no reference to British subjects; but if nevertheless the test of a person being a British subject is to be applied, the question is merely, at the material time is he a British subject or not? By Section 8 of the Indian High Courts Act the Supreme Court and the Courts of Sudder Adaulat and Foujdafi Adaulat were abolished upon the establishment of the High Court and by Section 9 the jurisdiction of the abolished Courts became, subject to certain limitations, vested in the High Court. What matters, therefore, is the power possessed by the Supreme Court at the time of its abolition and it was that power that the newly established High Court was vested with. If, as I have shown, the Supreme Court between the passing of the Government of India Act, 1858 and its abolition, could have exercised jurisdiction over native Indian infants in the mofussal, the High Court inherited its power and jurisdiction. This removes every possible doubt which, in spite of what I have already said, might still be supposed to exist on the point.
41. There is another aspect to which I may advert, making it, however clear that it is not intended to seek any ground for my judgment, in the remarks to be made in this connection. By Clause 22 of the 1800 Charter, jurisdiction is conferred upon the Supreme Court over the inhabitants of Madras, irrespective of any question of race or birth. The petitioner, the Rajah of Vizianageram, owns a valuable and spacious house at Madras, for which he pays the rates, keeps up an establishment there and resides in it during his visits to the city at frequent intervals. That on these facts which are not disputed, he would answer the description of the 'inhabitant of Madras', does not admit of doubt. Sir W. Page Wood, V.C., observes:
Generally, if a party has two or three establishments, every one of them may be called his residence, and not less so because he may not go there for some years. If he keeps up an establishment in it, the place is still his residence; and thus he may be said to have his residence in two or three different counties. Walcol v. Botfield (1854) Kay. 534 : 69 E.R. 226 .
42. In Moir In re : Warner v. Moir (1884) 25 Ch. D. 605 , the legatee was bound under the terms of a will to reside in a certain house for at least six months in every year. In one year he actually resided for 18 days only and in the year following for no more than 24 days. The question arose whether there was such non-compliance as would lead to a forfeiture. Bacon, V.C., observes that it is necessary, in order to comply with the conditions contained in the will, that the place should be kept up and goes on to say:
Kept up it has been, for there is a staff of servants there, and the man's horses and poultry are there.... The defendant has resided there; he did take possession; he has complied in all respects with the reasonable interpretation of the will, and there is no ground for saying that he has not done so. In re Moir : Warner v. Moir (1884) 25 Ch. D. 605.
43. These cases have been followed in India in Anilbala v. Dhirendra (1920) 32 C.L.J. 314, where Sir Ashutosh Mukherjee, A.C.J., points out that some persons have more than one residence and that in respect of them the word 'reside' may be used in relation to either their personal or legal residence (see p. 330). I have now shown that the Rajah of Vizianagaram would answer the description of 'the inhabitant of Madras' occurring in Clause 22 of the 1800 Chapter. I have already said that at any rate subsequent to the Act of 1358, the Supreme Court would undoubtedly possess jurisdiction over the native inhabitants in the mofussal. But even prior to that year, the position of the inhabitants of Madras in virtue of Clause 22 was different from that of the inhabitants of the rest of the Province; the Supreme Court's jurisdiction over them did not depend upon any question of nationality. I conceive, therefore, that the Supreme Court, acting upon the English analogy would not have hesitated to assist a resident of Madras invoking its jurisdiction, in asserting his parental authority over his children resident in the mofussal. Indeed the question is not, who would have to move the Supreme Court? for, by whomsoever moved, it would have exercised jurisdiction over the infant children, though resident in the mofussal, of the inhabitants of Madras. In In re Willoughby (1885) 30 Ch. D. 324 C.A., the infant was born abroad but his paternal grandfather was a natural born British subject and it was held that the Court had jurisdiction to appoint a guardian of such infant, although resident abroad. Kay, J., whose decision was upheld by the Court of appeal, observes:
According to the principle of our law, the Sovereign as parens patriae is bound to look to the maintenance and education of all his subjects. First the question is, whether this principle applies to children born out of the allegiance of the Crown; and I confess that I do not entertain any doubt upon the point, because the moment it is established by statute that the children of a natural-born father born out of the Queen's allegiance are to all intents and purposes to be treated as British-born subjects, of course it is clear that one of the incidents of a British-born subject is, that he or she is entitled to the protection of the Crown as parens patriae. (P. 328.)
44. This case of course does not in terms apply; but if for 'British subject' is substituted 'inhabitant of British India', the parallel would be complete. The Court of Chancery would extend its protection to the child of a British subject, though resident abroad; thus the residence of the infant is immaterial. By analogy, in the case of an inhabitant of Madras over whom the Supreme Court had jurisdiction, it would extend the same protection to his children wherever resident.
45. For these reasons it seems to me that the contention that the High Court has no jurisdiction, completely fails.
46. In the result, an injunction will issue restraining the Court of Wards from removing the minors out of the Province or otherwise interfering with them or exercising any sort of control over them, subject to the condition, that directions of the High Court may be applied for, by any party interested, in regard to their removal to any place, within the limits of British India. The enquiry is adjourned for the purpose of ascertaining, whether the petitioner has rendered himself unfit to continue to be the guardian of the minors in question, for appointing, if necessary, in his place a suitable person as their guardian and for passing final orders.
Venkataramana Rao, J.
47. This is an application under Clause 17 of the Letters Patent by the Rajah of Vizianagaram in the matter of his four minor children (1) for an order that he should have custody and control over the said children as their natural guardian; (2) but if the Court deems it necessary for the preventing of the children from being sent to the British Isles, that a guardian other than the petitioner should be appointed, for an order that his mother Sri Lalita Kumari Devi, the Dowager Rani Saheba of Vizianagaram, be appointed as guardian; and (3) for other reliefs. The circumstances which have necessitated this application have been fully dealt with by my Lord the Chief Justice and I do not therefore propose to recapitulate them.
48. This application is strongly opposed by the Court of Wards. At the outset an objection has been taken to its maintainability. The objection is formulated thus in paragraph 4 of the affidavit filed by the Collector of Vizagapatam on behalf of the Court of Wards:
The petitioner, being a ward of the said Court of Wards, is precluded from instituting Court proceedings without the consent of the Court of Wards or without intervention of a next friend.
49. The objection is based on Section 50 of the Court of Wards Act which runs thus:
In all suits or proceedings in any civil or revenue Court the ward shall sue and be sued in his own name and the manager of his property appointed under Section 24 or, if there is no such manager, the officer competent to act as manager under Section 25 shall represent him, as next friend or guardian ad litem as the case may be.
50. In construing this provision and other provisions of the Court of Wards Act the scope and object of the Act has to be kept in View, viz., to conserve and preserve the properties of proprietors disqualified within the meaning of the Act. (Vide the preamble to the Madras Court of Wards Regulation V of 1804.) The Act is not intended to override private rights. As observed by Sulaiman, C.J.:
A ward with certain disabilities is a creation of law and can have no existence outside the law. Kaulpati Kunwar v. Ram Baran Singh I.L.R.(1932) 54 All. 954 .
51. If a ward is a minor or a lunatic declared by a competent Court, he is incapable under the general law of acting by himself and has to be represented by a next friend or guardian as the case may be, but if he is not, his incapacity must be such as is imposed by the Act. In defining the extent of incapacity of a ward under the Oudh Land Revenue Act of 1876 the Privy Council in Dhanipal Das v. Maneshar Bakhsh Singh (1906) 16 M.L.J. 292 : L.R. 33 IndAp 118 : I.L.R. 28 All. 570 make the following observation:
From a perusal of the group of sections above referred to, their Lordships are of opinion that it was not intended to interfere with the personal status or rights of an adult disqualified proprietor who is neither idiotnor lunatic, except as regards the management of his property or anything expressly prohibited.
52. Their Lordships refused to read into the Act a curtailment of the proprietor's personal rights when they did not find it there. In this case the Rajah is neither a minor nor a person of unsound mind within the meaning of Section 9(a) or 9(c) of the Act; but, in the public interest, the local Government appears to have declared the Rajah a disqualified proprietor under Section 9(d). The only disabilities therefore that are imposed by the Act seem to be those enacted in Section 34 of the Act. Examining the extent of those disabilities, it is seen they relate to his property over which the superintendence of the Court of Wards extends, the object being that by no act of his the said property should be imperilled. To this extent therefore his incapacity is thus defined. In other matters, it follows his capacity to act must remain unaffected. He can enter into a contract of marriage; he can adopt or make a will and the Court of Wards cannot withhold their consent except on specified grounds. He is not prevented from dealing with the property the superintendence of which had not been assumed by the Court of Wards nor from incurring any pecuniary liability in respect thereof. Therefore the words 'in all suits or proceedings' must be construed with reference to the extent of disability imposed by the Act and so construed they must relate to the person and property of the ward. It is only in such cases, if at all, an adult ward not of unsound mind may be said to be incompetent to sue or be sued in any proceedings without a next friend or a guardian. The application in this case does neither relate to the person nor to the property of the ward but relates to the person of a third party who is not a ward and is therefore not barred by Section 50 of the Act.
53. An examination of some of the cases decided with reference to analogous provisions in Acts pari materia seems to support this view. It has been held that in respect of property of a religious institution whereof a ward is a trustee, when there is no provision in the Court of Wards Act providing for management in respect of such property, a ward is competent to sue himself and to be sued without his being represented by a next friend or a guardian. In Sri Thakurji v. Hira Lal I.L.R. (1922) 44 All. 634 the question arose with reference to the property of an idol whereof the ward was one of the trustees. It was contended that under Section 55 of the United Provinces Court of Wards Act (IV of 1912) the ward could not sue without a next friend. Section 55 of the said Act is in much wider terms than Section 50, according to which:
No ward shall sue or be sued nor shall any proceedings be taken in the Civil Court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf.
54. But the contention was negatived. The learned Judges observed:
That section has, however, no application to cases where a disqualified proprietor has no personal interest in the property by virtue of which a right to sue is claimed. His disability extends to the property he owns and not to that which he holds as a trustee.... He cannot be regarded as a disqualified proprietor in regard to the property which he so holds as manager.
55. In Krishna Pershad Singh v. Gosta Behari Kundu I.L.R. (1922) 44 All. 634 a question arose as to the representation of a minor ward in respect of certain property which the Court of Wards had not taken charge of. It was contended relying on Section 51 of the Bengal Act (IX of 1879) that the only person competent to represent the ward was the Court of Wards and not the mother who made an application to set aside a sale of the said property as his next friend. It was held by Mookerjee, J., that Section 51 had no application to the case, and the Court of Wards was not entitled as a matter of right to represent the minor wards. This decision was confirmed by the Privy Council in Krishna Pershad Singh v. Mofi Chand (1913) 25 M.L.J. 140 : L.R. 40 IndAp 140 : I.L.R. 40 Cal. 635 wherein occurs the following observation:
It is clear that the Court of Wards did not in fact take over Gadi Gandey at any time.... Their Lordships are therefore of opinion that inasmuch as the interests of the infant with regard to this property were not in fact represented by the Court of Wards, it was open to the mother as natural guardian to appear in the name of the infant to protect this property from sale.... The proceedings taken by her were therefore in order.
56. A similar view was taken by the Patna High Court in Mohammed Abdus Salam v. Kamalamukhi (1918) 46 I.C. 316 wherein Mullick and Thornhill, JJ., observe that th'ugh Section 51 of the Bengal Court of Wards Act (IX of 1879) is enacted in very wide terms, judicial decisions have considerably restricted the very wide meaning sought to be attached to the section. They also seem to be of the opinion that in a case where the suit is in respect of property which is not in the actual possession of the Court of Wards, the suit may proceed against the proprietor alone. I may mention that under the proviso to Section 19, Clause 2 of the Madras Act it is in the discretion of the Court of Wards to assume or refrain from assuming the superintendence of any property which the ward may acquire otherwise than by inheritance. It cannot be urged that in respect of a property of this description which the Court of Wards has not taken charge of, the ward would not be competent to sue or be sued without his being represented by the Court of Wards. The cases relied on by the learned Advocate-General do not militate against this view. In Narindra Bahadur Singh v. Oudh Commercial Bank (1917) 46 I.C. 68 and on appeal to the Privy Council in Narindra Bahadur Singh v. The Oudh Commercial Bank, Ltd. (1921) 42 M.L.J. 58 : L.R. 48 494 : I.L.R. 43 All. 478 , the question related to the property of the ward vested in the Court of Wards and in regard thereto it may be said he was incapable of acting. As the Court of Wards represented him, he was held to be bound by their act. Further the decision also turned on the language of Section 55 of the United Provinces Act IV of 1912. The observations in Narindra Bahadur Singh v. Oudh Commercial Bank (1917) 46 I.C. 68 are too wide, if it is meant that the moment, a person is declared a ward of Court he becomes so to speak a minor or lunatic for all purposes. There is nothing in Narendra Bahadur. Singh v. The Oudh Commercial Bank, Ltd. (1921) 42 M.L.J. 58 : L.R. 48 494 : I.L.R. 43 All. 478 which supports these observations.
57. It is argued that in cases where the Court of Wards takes superintendence of the person he must be treated as a minor or a lunatic. I find however nothing in the Act which supports that contention either expressly or by necessary implication. The superintendence of the person is after all assumed only as ancillary to the main object of the Act, namely, the preservation of the property.
58. Under the general law a person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for a suit (Order 32, Rule 4, Civil Procedure Code). It cannot be said that an adult ward who is neither a minor nor a lunatic is incompetent to act under the said rule. The Rajah in this case would thus be competent to represent his minor children, and it will be idle to contend that nevertheless he in his turn should be represented by some one else as if he were a minor or a lunatic.
59. Again Section 50 can obviously have no application in suits or proceeding to which the Court of Wards is a party. It seems to me impossible that in a proceeding against the Court of Wards the manager can represent the Rajah. The proceeding in this case is initiated by the Rajah against the Court of Wards in respect of a claim wholly dissociated from the person and property of the ward. Therefore also the application in its present form is perfectly competent.
60. I am also of the opinion that the contention that this application is not maintainable without the manager or other officer representing the Rajah can be met successfully with a construction of Section 50 which probably least affects personal or private rights. The section is made of two parts. The first lays down that the ward shall sue and be sued in his own name. So far this application is in accordance with the statute. The second part lays down that the manager appointed under Section 24 or the officer appointed to act as manager under Section 25 shall represent him as next frient or guardian ad litem as the case may be. Now the expressions 'next friend' and 'guardian ad litem' are well known to procedural law, being expressions used in the Civil Procedure Code which was in force when the Court of Wards Act was passed. These expressions occur in Order 32 of Schedule I, Civil Procedure Code, dealing with suits by or against minors and persons of unsound mind. Provision therein is made for representation of minors and lunatics by next friends when they are plaintiffs and by guardians ad litem when they are defendants. The Court of Wards Act contemplates minors and lunatics to become wards. [See Section 9 Clauses (a) and (c).] A suit by or against such persons should conform to the provisions of the Civil Procedure Code, i.e., such persons should be represented by next friends or guardians ad litem. Consistent with the policy of the Act, what Section 50 lays down is only this, that if in any suit or proceeding it is necessary under the general law of procedure that there should be a next friend or guardian ad litem, then, the manager or other officer shall be such next friend or guardian, i.e., he will be a statutory next friend or guardian. In this view, several of the anomalies pointed out earlier will not arise and the personal rights of the ward will not be affected any more than expressly declared to be affected by Section 34. This application therefore by an adult person who is neither a minor nor a lunatic nor a person so mentally infirm as to be unable to conduct this case is perfectly competent under the general law and there is nothing in Section 50 which renders it incompetent.
61. Even assuming the Rajah is not competent to maintain this application it is open to this Court to take action under Clause 17 of the Letters Patent if it is brought to the notice of the Court that the interests of infants required to be safeguarded. Apart from the Rajah, his mother, Dowager Rani has filed an affidavit intimating her willingness to be appointed guardian and further through her counsel has requested this Court to appoint a proper guardian as the interests of the infants are in real danger unless adequate protection is given by this Court.
62. The next objection taken by the Court of Wards is that this Court has no jurisdiction 'to receive and adjudicate upon an application relating to the guardianship of infants residing outside the Ordinary Original Civil Jurisdiction of this Hon'ble Court unless it be he is a European British subject.' The jurisdiction of this Court over infants is conferred by Clause 17 of the Letters Patent, 1865, which runs thus:
And we do further ordain that the said High Court of Judicature at Madras shall have the like power and authority with respect to the persons and estates of infants, idiots, and lunatics within the Presidency of Madras, as that which was vested in the said High Court immediately before the publication of these presents.
63. What was thus vested in Clause 17 was what was vested under Clause 16 of the Letters Patent of 1862 which runs thus:
And we do further ordain that the said High Court of Judicature at Madras shall have the like power and authority with respect to the persons and estates of infants, idiots, and lunatics, whether within or without the Presidency of Madras, as that which is now vested in the said Supreme Court at Madras.
64. The power that was vested in the Supreme Court in this behalf under Clause 32 of the Madras Charter of 1800 is to this effect:
And we do hereby authorize the said Supreme Court of Judicature at Madras to appoint guardians and keepers for infants, and their estates, according to the order and course observed in that part of Great Britain called England.
65. The question is, what is the order and course observed in England. The jurisdiction in regard to persons and properties of infants is that exercised by the Chancellor in the Court of Chancery as a part of the general delegation of the authority of the Crown virtute officii. It has therefore its foundation in the prerogative of the Crown flowing from its general power and duty as parens petriae See Barnardo v. McHugh (1891) A.C. 388 . This power is exercised even if the infant is residing outside the jurisdiction of the Court of Chancery. Vide In re Willoughby (an infant) (1885) 30 Ch. D. 324 per Cotton, L.J.) and arising out of the prerogative of the Crown is not subject to any territorial limitation. All that is necessary is that at the time it is invoked the minor must be a subject of His Majesty. It is the same jurisdiction which is conferred by Clause 32. As pointed out by White, C.J., in Annie Besant v. Narayaniah : (1913)25MLJ661 :
The language of the clause is quite general and is not qualified by any limitation as to persons or place such as we find in other clauses of these Letters Patent.
66. There is nothing to prevent the jurisdiction being exercised over infants in the mofussil in the presidency provided they fulfil the requisite laid down above. Mr. Broughton in his book on the Civil Procedure Code of 1859 comments on Clause 16 of the Letters Patent of 1862 thus:
The jurisdiction given by this clause seems, with the like clause of the Charter of the Supreme Court, to confer power and authority in those cases without respect to nationality. (1869, 3rd Edn., Appendix p. 29.)
67. It is contended that Clause 32 must be deemed to be qualified by the clauses which define the extent of the jurisdiction, namely, Clause 21, 22 and other clauses and that they indicate that the jurisdiction of the Supreme Court is confined only to the City of Madras and over the European British subjects in the mofussil. It will be seen that the charter confers various jurisdictions civil, criminal, ecclesiastical, admiralty, equity, testamentary as well as jurisdiction over infants, idiots and lunatics. The extent of the jurisdiction in each case will have to be ascertained from the language used with reference to each.
68. In regard to the issue of certiorari to an officer in the mofussil, a similar contention was advanced with reference to Clause 8 of the Charter which like Clause 32 contain no limitation as to place or person. Sadasiva Aiyar, J., repelled the same and observed thus in In re Nataraja Aiyar : (1912)23MLJ393 :
I agree with Norman, J., that while as regards original, civil and criminal jurisdiction, the Letters Patent confined the jurisdiction of the Supreme Court to the Presidency town the powers of the Supreme Court as a Court of Judicature for the whole of the Presidency of Madras extend to the issuing of writs of habeas corpus and like prerogative writs into the mofussil also, provided that they are not issued so as to affect Courts. The fixing of the civil, criminal and other jurisdiction of the Supreme Court and inhabitants who do not owe undivided allegiance to the British Crown by Clauses 21, 22, 33, 34 of the Letters Patent cannot, in my opinion, limit the powers given by Clause 8.
69. This view has been followed in Venkataratnam v. Secretary of State for India (1929) 60 M.L.J. 25 : I.L.R. 53 Mad. 979. (Vide the observations of Venkatasubba Rao, J., as he then was at p. 989.) It accords with the general principle to be observed in the exercise of a power arising out of the prerogative of the Crown conferred on a Court by virtue of a statute, viz., that it must have full effect unless there are precise words which limit or define its extent. There being thus no limitation of the power conferred on the Supreme Court under Clause 32 this Court has jurisdiction to appoint a guardian for an Indian infant residing in the mofussil if a proper case is made out.
70. Even otherwise what is the scope and extent of the jurisdiction conferred by the other clauses of the said Charter of 1800. It is argued for the Court of Wards that the jurisdiction is only over a limited clasps of people, namely, all such persons as have been described and distinguished 'by the appellation of 'British subjects' and employees under them; and inhabitants of Madras, and that the natives of India as such residing in the mofussil, not being 'British subjects' would not come under any of these designated classes.
71. It may be a question how far the view propounded by the learned Advocate-General is correct, viz., that the natives of India without any exception were intended to be excluded from the class designated as 'British subjects' in some places and 'His Majesty's subjects ' in other places in the legislation relating to India before 1858. No doubt several provisions suggest that their application was contemplated only in respect to those subjects of the British Crown who were natives or descendants of natives of Great Britain. But it must not be forgotten that these statutes were passed and Charters granted during a period when the greatest uncertainty prevailed as to the exact position occupied by the native inhabitants of the Company's possessions in relation to the British Crown. It was with great hesitation that sovereignty was even theoretically asserted over the Company's dominions. Till a very late period the fiction of the native subjection to the Moghul was kept up. The following passage from the Cambridge History of India, Vol. V, pp. 594 and 595 gives an indication of the uncertainty:
That Act (the Regulating Act) takes for granted the existence, of British sovereignty in Calcutta and its immediate neighbourhood, but not apparently beyond. At best its language is hesitating and uncertain. A distinction appears between British subjects and the native-born inhabitants. The India Act of 1784 leaves the question still untouched, although it legislates for the full exercise of all sovereign powers in territory that in 1773 was clearly not yet a part of the dominions of the Crown. The Act of 1793 merely declared that all territorial acquisitions and their revenues were to remain in the possession of the East India Company for the next twenty years, thus-leaving the question of sovereignty still open. Not until 1813 do we find the claim to sovereignty formally asserted. In the Act renewing the company's privileges in that year the territorial acquisitions were continued under its control 'without prejudice to the undoubted sovereignty of the Crown of the United Kingdon, etc., in and over the same'. But at what moment that sovereignty came into being still remained a riddle.
72. To an English jurist of the period therefore the essential attribute of a British subject, viz., permanent and unquestioned allegiance to the Crown was hot perhaps very apparent in the native inhabitants of the factories or territories of the Company.
73. At the same time it is clear that divergent views were entertained by responsible persons. It has been held by the Supreme Court of Bombay that even native inhabitants of the Island of Bombay would be British subjects owing allegiance to the Crown within the meaning of that term in the Charter of the Supreme Court of Bombay. A striking exposition of the. opposing views on the subject will be found in the judgment of Yardley, C.J., and Jackson, J., in Ardaseer Cursetjee v. Perozeboye (1856) 6 M.I.A. 348 . But Yardley, C.J.'s opinion seems to be borne out by the provisions of the Charter of Charles II by which the Island of Bombay was granted to the East India, Company. The following clause occurs therein:
That all and every the persons being our subjects (excluding, therefore, mere sojourners or aliens), which do or shall inhabit within the said Port and Island, and every of their children and posterity which shall happen to be born within precincts and limits thereof, shall have and enjoy all liberties, franchises, immunities, capacities and abilities of free denizens and natural subjects within any of our dominions, to all intents and purposes as if they had been abiding and born within this our kingdom of England
74. The observation of Perry, J., thereon is instructive:
This clause, it will be observed, expressly confers the rights of denizen-ship on all His Majesty's subjects which do or shall inhabit, and the rights of natural subjects on all who shall be born, within the Island of Bombay. (Morley's Digest, Vol. 2, p. 340.)
75. This is the view of writers on Constitutional Law. (See Taring, Halsbury, Vol. 10, First Edition, page 588. Dodwell in the Cambridge History of India, Vol. V, p. 589.)
76. But any detailed investigation into this matter is perhaps unnecessary for the determination of the question in issue. The fundamental fact however remains that the essential requisite for being designated as a British subject is permanent allegiance to the British Crown, an attribute which was apparently assumed to be wanting in the natives of India before 1858 though there are also instances suggesting a contrary inference.
77. After 1858 however there cannot be any doubt that the natives of India would be included in the category of British subjects. Taring says in his article on Dependencies, Colonies and British Possessions, Vol. 10 Hals., p. 588 (1st Edn.) thus:
Before the Government had passed from the Company to the Crown it was a matter of doubt whether natives of India (except in the Island of Bombay which had once been a Crown possession) were 'British subjects' as that term was occasionally used in Acts of Parliament relating to India. Since the Government of India Act, 18S8, this doubt, can no longer exist, so far at least natives of British India were concerned.
78. Sadasiva Aiyar, J., in In re Nataraja Iyer : (1912)23MLJ393 says:
But when all the people became subject to the King's Laws and the King's Courts instead of the Company's Laws and Company's Courts, they must be entitled to invoke the King's prerogative vested in the Superior Courts for their protection.
79. It follows therefore that when Clause 16 of the Letters Patent, 1862 Incorporates by reference the power vested in the Supreme Court over British subjects that term would include also the new species of British subjects, the native subjects of the British Crown. It is to a case like this that the following canon of statutory construction well applies:
The language of, a statute is generally extended to new things which were not known and could not have been contemplated by the Legislature when it was passed. This occurs when the Act deals with a genus and the thing which afterwards comes into existence is a species of it. (Maxwell, 7th Edn. p. 69.)
80. The Charter of 1800 deals with the genus 'British subjects'. Even assuming that the only species then contemplated was the 'European British subject', when the new species of Indian British subject came into existence in 1858, then the Charter will extend in its application to the new species as well.
81. I shall now advert to some of the facts and circumstances which support the conclusion that the statutes and Charters of Justice of the period prior to 1858 dealt with British subjects or His Majesty's subjects as a genus with well-recognised characteristics, though as pointed out, it is doubtful if the native subjects of the Company's territories were unequivocally treated as an accepted species of it. The Supreme Court was first established in India at Fort William in or about 1772 in pursuance of 13 Geo. III, Ch. 63. The said Act and the Charter issued in pursuance thereof formed the foundation for the Acts and Charters by which the Supreme Courts in other provinces were constituted with the same powers and jurisdiction. An English Jurist of the period must be presumed to have been aware of the conception of the term 'British subject' as then understood. Dicey states the Common Law view of English nationality which prevailed at least from the time of Edward III thus:
English lawyer? at the time of Edward III based the law of what we should now call 'British nationality' on one broad principle... Any person, they held, who was born within the legiance of the King of England was a natural born British subject, whilst on the other hand, no person was such a natural born British subject unless he was born within the legiance of the King. The word 'legiance'...meant the duty of the King's subject to yield permanent obedience to the King and his claim in return for this obedience to receive the King's protection. Birth within the legiance was held to mean birth in territory subject to the King.... 'Over 500 years have elapsed, since the death of Edward III, yet the most fundamental rule of British nationality remains all but absolutely unchanged. It is still true that any' person born within the king's dominions or to use an ordinary expression the British dominions is a natural born British subject. (Vide Drcey's Conflict of Laws, 5th Ed., pp. 896 to 898.)
82. Clause 67 of the Charter of the Supreme Court of Madras and Clause 80 of that of Bombay seem to indicate that this conception was kept in view. It was also understood at the time that inhabitants of territories acquired by conquest or cession would become subjects of the King when once received under the King's protection. Vide Campbell v. Hall (1774) 1 Cowp. 204: 98 E.R. 1045 .
83. Turning to 13 Geo. III Ch. 63, the persons over whom jurisdiction was to extend were specfied in Sections 14 and 16. It will be seen that while defining the extent of the jurisdiction and the power of the Charter to be granted in pursuance of the Act it states that the same shall and may extend to all 'British subjects'. While defining the jurisdiction of the Supreme Court it states that the said Court shall have full power and authority over all 'His Majesty's subjects' and persons employed under them. British subjects must have been used to have the same meaning as His Majesty's subjects, i.e., subjects of the British Crown. His Majesty's subjects on the date of the Act comprised not only natives or descendants of natives of Great Britain but also natives or descendants of natives of its acknowledged Colonies.
84. This view derives support from some of the clauses of the Charter issued in pursuance of the Act. Clause 13 of the Charter which gives effect to Sections 14 and 16 of the Act describes the class of subjects as 'our subjects' meaning His Majesty's subjects. Clause 19 of the Charter which defines criminal jurisdiction refers to them as 'any of the subjects of us.' Again in the conferment of the King's prerogative rights under Sections 4 and 25 of the Charter, no definition of territory or person is mentioned but the power is stated to be that exercised by the Courts in England which it must be conceded extended over all His Majesty's subjects in the widest sense of the term.
85. One of the objects of the statute was to establish a Supreme Court of Judicature and the object of Section 14 is to define its jurisdiction. One must presume that in establishing a Supreme Court for a presidency the intention of the Legislature will be to confer as wide a jurisdiction as possible. It will be seen that in the Statute 37 Geo. III, Ch. 142, and 39 and 40 Geo. III, Ch. 79 the Recorders and Supreme Courts were intended to have jurisdiction also 'over the territories to be acquired' and on acquisition by conquest or otherwise natives of the said territories would become British subjects.
86. The question is not whether British subjects were intended to include the native inhabitants of India at the time of the passing of the said Act or Charters but whether the term 'British subjects' was used only in the sense of natives or descendants of natives of Great Britain. If it is not the latter, the natives of India would become British subjects as and when they fulfil the requisities which are necessary to make them so and once they become British subjects the Supreme Court would have jurisdiction over them.
87. The interpretation put by the Calcutta Supreme Court even after 21 Geo. III, Ch. 70 seems to suggest that the test to determine a 'British subject' within the meaning of the Charter of the said Court was allegiance to the British Crown. In the matter of M.K. Cachick1, the question arose whether Armenian Christians living in Cassimbazaar were British subjects within the meaning of the Charter. Three learned Judges of the Supreme Court decided they were, the ground of the decision being that 'they do not acknowledge any other sovereign than the King of Great Britain.'
88. Sir Charles Grey's opinion was whether the term 'British subjects' comprehended natives of India or not, it would apply to all persons 'having indefeasibly the character of the subjects of the British Crown.' (Vide Cowell, pp. 37 and 38.)
89. At page 412 of his book 'The Government of India Act' Mr. Ilbert refers to Clarke's note to his Edition of 9 Geo. IV, Ch. 33 to show the conflicting opinions held with regard to the meaning of the term 'British subjects' but from the note itself it is clear, whether it comprehended the natives of India or not, it included not only the natives or descendants of natives of Great Britain but also those of its acknowledged Colonies of whatever colour or race.
90. In 1813 Act 55 Geo. III, Ch. 155 was passed extending the Charter granted to the East India Company for another period of 20 years and by Section 95 of the Act the undoubted sovereignty of Great Britain was for the first time asserted and declared in a statute. The legal effect of such a declaration would be in theory to make the natives of India the subjects of his Majesty. Mr. Ilbert, however, points out at p. 411 of his book:
Notwithstanding the declaration in the preamble to the Charter Act of 1813...there was still room for doubt whether the native inhabitants of those possessions were British subjects within the meaning usually attached to that term by Acts of Parliament, and whether their status did not more nearly resemble that of natives of the territories in Africa which are under British protection, but have not been formally incorporated in the British dominions.
91. But from 1833 one may see clearly an indication to regard the natives of India as the subjects of His Majesty because of the increasing definiteness in the minds of the British statesmen to exercise in fact direct sovereign control over British possessions in the East. It was finally in 1858 the Crown asserted direct control and assumed sovereignty both 'in form and in fact'. In unmistakeable terms was it declared by Section 1 of Acts 21 and 22 Vic. Ch., 106, that the Government of territories vested in the Company in trust for His Majesty shall cease and shall become vested in Her Majesty and India shall be governed 'by and in the name of Her Majesty'. The legal consequence of this direct assumption of sovereignty was that all the natives of India became British subjects or His Majesty's subjects and the above statute as well as subsequent statutes make this position abundantly clear.
92. Thus if natives of India had become British subjects or His Majesty's subjects, they were certainly amenable to the jurisdiction of the Supreme Courts in and from 1858 till 1862 when those Courts were abolished. The language of Clause 16 of the Letters Patent of 1862 is very significant, viz. : 'Now-vested in the Supreme Court', i.e., in 1862. The learned Advocate-General combats this view by saying that to adopt it would be a violent construction as all natives of India would be subject to the concurrent jurisdiction of berth the Company's Courts and Supreme Court. It is not possible to see what the difficulty is in subjecting them to such concurrent jurisdiction.
93. It is because of the confusion that may arise by having a plurality of jurisdiction that the High Court Act was passed to systematise the judicial administration by abolishing the Supreme Courts and Saddar Dewani Adawlat Court and Mefinvng the powers of the High Court.
94. The High Court has therefore under Clause 17 of the Letters Patent, 1865, jurisdiction to appoint a guardian of an infant residing in the mofussil and who is not a European British subject. This is the view taken by Lort Williams, J., in In re Tarunchandra Ghosh I.L.R.(1929) 57 Cal. 533 and in Annie Besant v. Narayaniah (1931) 25 M.L.J. 661 by White, C.J., and Oldfield, J., Considerable emphasis was laid by the learned Advocate-General on the decision of the Privy Council in In re The Bombay Justices (1829) 1 Knapp. 1 : 12 E.R. 222. According to him the Privy Council conclusively laid down therein that the Supreme Court of Bombay had no jurisdiction over the natives of India in the moffussil and the importance of the decision consisted in the fact that it was pronounced after the declaration of sovereignty in 55 Geo. III, Ch. 155 in consequence whereof every native of India would be a British subject. In my opinion Knapp's case did not lay down the proposition contended for. The actual decision in that case so far as it relates to the present discussion was that the Supreme Court of Bombay had no jurisdiction to issue a writ of habeas corpus-to one Moro Ragonath who was then residing in Poona outside the jurisdiction of the City of Bombay. One of the propositions enunciated in that decision was:
That the Supreme Court had no power or authority to issue a writ of habeas corpus except when directed either to a person resident within those local limits wherein such Court has a general jurisdiction, or to a person out of such local limits who is personally subject to the civil and criminal jurisdiction of the Supreme Court.
95. The question still remains who are personally subject to the civil and criminal jurisdiction of the Supreme Court? The actual ground on which the writ was held to be bad is not seated in the report of the Privy Council. It might have been on the ground as alleged in the petition of Moro Ragonath that he was a relation of the Peishwa and at no time owed allegiance to the Crown and therefore not a British subject within the meaning of the statute. If so, the decision is not against the view I have indicated. It may be that according to the notion of sovereignty prevalent at the time with reference to the territorial acquisitions in India, as already pointed out by me, the Company's subjects were not treated as His Majesty's subjects and therefore Moro Ragonath was not treated as His Majesty's subject. If according to that decision the condition for the exercise by the Supreme Court of tee Crown's prerogative is personal subjection to the civil and criminal jurisdiction of the Supreme Court it follows the moment a native of India becomes personally subject to the said jurisdiction, he can seek the benefit of the said prerogative.
96. An argument was based by the learned Advocate-General on lunacy legislation. It is this : The jurisdiction of the High Court under the Letters Patent and of the Supreme Court under Ch. 32 of the Charter of 1800 over lunatics and infants is the same : Act 34 of 1858 and Act 35 of 1858 and Sections 37 and 62 of the Lunacy Act (IV of 1912) (an enactment consolidating the previous Acts) make it clear that the Supreme Court had not and the High Court has now no lunacy jurisdiction over Indians residing in the mofussil. Reliance is placed on In the matter of Phanindrachandra Set I.L.R. (1930) 58 Cal. 919, Anilbala v. Dhirendra (1920) 32 C.L.J. 314 and In the matter of the Petition of Jaundha Kuar v. The Court of Wards I.L.R. (1881) 4 All. 159 in support of this view. Petition of Jaundha Kuar v. The Court of Wards I.L.R. (1881) 4 All. 159 is based on an alleged practice in the Calcutta High Court. Both the decisions in In the matter of Phanindrachandra Set I.L.R. (1930) 58 Cal. 919 and Anilbala v. Dhirendra (1920) 32 C.L.J. 314 proceed on the assumption that Clause 14 of 13 Geo. III, Ch. 63 has the effect of confining the jurisdiction of the Supreme Court beyond the limits of Calcutta to British subjects, the subjects of the King of British birth, an assumption which I have shown is unfounded. The Lunacy Acts do not in my opinion bear out the view contended for. Referring to the Acts of 1858 and 1912 Beachcroft, J., in Anilbala v. Dhirendra (1920) 32 C.L.J. 314 ,observes as follows:
In none of them was any definition or limitation of the jurisdiction of the Supreme Court attempted. This may possibly have been due to the fact that the extent of that jurisdiction has always been uncertain and to a reluctance on the part of the legislature to make any enactment which might interfere with it.... There is then no provision in any of the three Acts which indicates the extent, of the jurisdiction of the Supreme Court.
97. Beachcroft, J., was only pointing out what I already indicated that the legislation regarding Courts of Justice was partly coloured by the prevailing notions of sovereignty in regard to the territorial acquisitions in India and the hesitancy and uncertainty which dominated the British statesmen in defining precisely the nature of the control of the Crown. In dealing with Clause 17 of the Letters Patent and Section 25 of the Charter of the Supreme Court of Calcutta, Beachcroft, J., again says:
It would be necessary to examine historically the extent to which sovereign powers had been acquired by 1774 so as to justify the claim to legislation in respect of persons other than European British subjects living outside the town of Calcutta.
98. Herein Beachcroft, J., clearly assumes that subjection to the British Crown would be the basis for determining the extent of jurisdiction but having done so, in my opinion, the mistake which he commits is that British subjects must be confined for ever to European British subjects of the King and Section 25 must be controlled by other clauses of the Charter, a view which I have already shown is not well founded. Dealing with Act IV of 1912 Mookerjee, J., in the same case remarks thus:
It will be observed that Section 38 does not formulate the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for purposes of judicial inquisition as to alleged lunacy. In this respect the law is left as it was under Sections 1 and 8 of the Lunacy Act of 1858.
99. Section 38 occurs in Chapter 4 and the said chapter is mainly intended to deal with persons subject to the local limits of the jurisdiction of the High Court. This seems to be made clear by the fact that the High Court under Section 43 of the said Act is also empowered to deal with persons outside the local limits of the jurisdiction of the Court which will be the jurisdiction under Clause 17 of the Letters Patent. The heading of Chapter 4 also furnishes the key to the interpretation of Section 38. The words in Section 62 'not subject to the jurisdiction of the Supreme Court' therefore in my opinion mean not subject to the local limits of the jurisdiction of the Supreme Court. A consideration of the provisions of Acts 34 and 35 of 1858 also seems to support this view. Section 1 of Act 34 of 1858 is in general terms as it refers to 'any person subject to the jurisdiction of the Court' and Section 8 corresponds to Section 43 which refers to 'a lunatic beyond the local limits'. Sections 4, 6 and 8 seem clearly to indicate that the jurisdiction can be exercised beyond the local limits. The expression 'not subject to the jurisdiction of the Supreme Court' in Act 35 of 1858 can only be referable to the local limits of the jurisdiction of the Supreme Court. I am therefore of opinion that the jurisdiction over lunatics under Clause 17 of the Letters Patent was not meant to be affected by the said Acts.
100. Again the legislation regarding the writ of habeas corpus was referred to as throwing light on the question under discussion. The legislation referred to is the enactment of Sections 81 and 82 of the Criminal Procedure Code, of 1882. Section 82 enacts:
Neither the High Court nor any Judges of such High Court shall issue any writ of habeas corpus, mainprise, de homine replegiando nor any other writ of the like nature beyond the presidency towns.
101. The contention is that the enactment was necessitated in consequence of the decision of Norman, J., in the matter of In re Ameer Khan (1870) 6 Beng. L.R. 392 wherein he held that the High Court has authority to issue a writ of habeas corpus into the mofussil. It is argued that this enactment is thus a legislative declaration of the fact that the High Court did not possess any such jurisdiction. I am unable to follow this argument. All that the section says is that no High Court shall issue any writ as indicated therein. It may mean the legislature was taking away the power which the High Court had and but for that section the High Court would always have the power to do so. A Full Bench of the Madras High Court in In re Govindan Nair : (1922)43MLJ396 has taken the view that apart from any legislation, the High Court has the power to issue a writ of habeas corpus to an Indian residing in the, mofussil. It is not necessary for the purpose of the present case to go into the question whether In re Govindan Nair : (1922)43MLJ396 was correctly decided or not. But In re Govindan Nair : (1922)43MLJ396 is an authority in so far as it goes and it affirms the view taken in In re Ameer Khan (1870) 6 Beng. L.R. 392 and that of Sadasiva Aiyar, J., in In re Nataraja Aiyar : (1912)23MLJ393 a view which has been consistently followed in this High Court up to now. This is also the view taken by the Bombay High Court in Mahomedalii Allabux v. Ismailji Abdulali I.L.R. (1926) 50 Bom. 616 where it was held that the High Court was competent to issue a writ for the production of a person outside British. India provided the Court was satisfied that the person was in the custody and control of the person within its jurisdiction. The learned Judges observe:
The High Court still retains such powers as were granted by the Supreme Court Charter of 1823 as were not inconsistent with the Charter of 1865 or have not been taken away by subsequent legislation. (P. 620.)
102. It is contended by Mr. K.R. Vepa who on behalf of the Dowager Rani presented the case of the petitioner very ably, that even assuming the learned Advocate-General's argument to be correct in regard to the jurisdiction over persons residing in the mofussil, the Rajah is a resident of Madras and he can invoke the jurisdiction of this Court for the protection of his parental rights and it is immaterial where the children are residing so long as they are within this Presidency. It cannot be disputed that the Rajah is an inhabitant of Madras within the meaning of Clause 22 of the Charter of the Supreme Court of 1800. Fie has got a permanent home 'Admiralty House' where he resides for a not inconsiderable portion of the year. He has got a regular establishment in Madras and pays taxes as a citizen. This would have been sufficient to entitle him to the protection of the Supreme Court. (Vide the cases referred to by Mookerjec, J., in Anilbala v. Dhirendra (1920) 32 C.L.J. 314 . The residence of the children is immaterial. Clause 17 of the Letters Patent does not impose as a condition the residence of the infant for the exercise of jurisdiction thereunder. As a father, the Rajah is entitled to the custody of his children and if that right is infringed by one who is also subject to the jurisdiction of this Court, I do not see why he is not entitled to get the relief he seeks. It cannot be denied that the Court of Wards is subject to the jurisdiction of this Court and would have been subject to the jurisdiction of the Supreme Court. Under similar circumstances in Hope v. Hope (1854) 43 E.R. 534 : 4 De. G.M. & G. 328, Lord Chancellor Cranworth made an order in respect of an infant residing in France against the mother, Mrs. Hope, on the ground that she submitted herself to the jurisdiction of the Court. (See p. 542.) In Annie Besant v. Narayaniah : (1913)25MLJ661 , White, C.J., observes:
If the domicile and residence of the father within the jurisdiction of the Court of Chancery in England would have 'been sufficient to the Court in England, I think the same facts mutatis mutandis would be sufficient to give jurisdiction here.
103. Again at p. 687.
In the present case the statutory power as regards the appointment of guardians for infants is given with express reference to 'the order and course observed in that part, of Great Britain called England.' The test seems to me, would the fact that an infant was resident out of England in itself deprive the Courts in England of power on the application of a father domiciled and resident in England to appoint a guardian of the person of the non-resident infant? The answer is surely 'no'.
104. I am therefore of opinion that on this ground also this Court has power in this case to exercise its jurisdiction under Clause 17 of the Letters Patent and give protection to the father and safeguard his parental rights.
105. It is also contended on behalf of the Court of Wards that after the passing of the Guardian and Wards Act, the only power the High Court has is that conferred by the Act and there is no power to act independently under the Letters Patent and under the Guardians and Wards Act 'the High Court cannot entertain an application in respect of an infant resident in the mofussil. I find it difficult to follow this argument. Reliance is placed on the definition of 'District Court' and Section 19 of the Act. Section 4, Clause 4 defines District Court as follows:
'District Court' has the meaning assigned to that expression in the Code of Civil Procedure, and includes, a High Court in the exercise of its Ordinary Original Civil Jurisdiction.
106. But the jurisdiction of the High Court under Clause 17 of the Letters Patent is not in the exercise of its Ordinary Original Civil Jurisdiction and it is saved by Section 3 which says that:
Nothing in the Act shall be construed to take away any power possessed by any High Court established under the Statute 24 and 25 Vic, Ch. 104.
107. I may point out that it has been consistently held by the High Courts of Bombay, Calcutta and Allahabad that apart from the Guardian and Wards Act, the High Court has jurisdiction to appoint a guardian for a minor. In re Jairam Luxmon I.L.R. (1892) 16 Bom. 634, in re Jagannath Ramji I.L.R. (1893) 19 Bom. 96, In re Manilal Hurgovan I.L.R. (1900) 25 Bom. 353 , Narsi Tokersey & Co. v. Sachindranath Gajanan I.L.R.(1929) 54 Bom. 75, In re Hari Narain Das an Infant I.L.R.(1922) 50 Cal. 141, In re Bijaykumar Singh Buder I.L.R.(1931) 59 Cal. 570 and In the matter of Govind Prasad I.L.R. (1928) 50 All. 709. The practice in this Court, so far as my experience goes, has been consistent with the view taken by the other High Courts, The argument based on Section 19 of the Act is also absolutely untenable. Section 19 refers to a minor ward and not to the children of a minor ward. Section 3 occurs in one chapter and Section 19 in another chapter and thus the saving clause is not affected by Section 19.
108. The next argument o-f the learned Advocate-General is that Section 23 of the Court of Wards Act makes the Court (of Wards in effect the guardian of the children of the ward, that by Section 3 of the Guardians and Wards Act the power and authority conferred by Section 23 is saved and the High Court's jurisdiction to this extent must be deemed to have been taken away and if it has got any power it can only appoint a guardian in respect of matters not covered by Section 23 of the Act. This contention is also equally unsustainable. Section 4 of the Court of Wards Act defines a ward as being a person who has been made a ward of the Court under Section 19. Therefore the minor children are not wards within the meaning of the Act. It is only in respect of a ward the Court of Wards under Section 24 can appoint a guardian of his person and a manager in respect of his property. So it has no power to appoint a guardian for the person of his minor children. The Collector's power under the Act under Section 25 is only to do anything that might be done by a guardian. The powers of a guardian are only in respect of the ward and not in respect of his minor children. Thus there is nothing expressly provided in the Act which prohibits a Court appointing a guardian for the minor children of the ward. Has the power of a father as the natural guardian been taken away by the Act, and if so, to what extent? The father is a guardian by nature and nurture. His right to the custody and control of his children is absolute. His powers unless taken away expressly or by necessary implication by statute or deprived by the Court remain unaffected. So far as the Act goes there is no express taking away of his right. Has there been such by plain intendment or necessary implication? It is contended that by Section 23 it must have been necessarily intended to take away his rights in respect of the matters mentioned therein by virtue of the fact that the superintendence of his person has been assumed. The question therefore is, what is the scope of Section 23? The section is enacted to enable the Court of Wards to make the necessary orders and arrangements in regard to the matters mentioned therein as incidental to and arising out of the management of the property vested in. them. It does not clothe them with any power as is contended for in the sense that by the exercise of it they Can interfere with the rights of others. It affords a statutory protection for certain orders and arrangements which they will be obliged to make when required to do so during the course of their management. The section says 'may'. It is prima facie enabling and permissive. Generally when coupled with a duty it is construed as obligatory. In Julius v. Lord Bishop of Oxford (1880) 5 A.C. 214 both in the Court of Appeal, The Queen v. Bishop of Oxford (1879) 4 Q.B.D. 525 and in the House of Lords in appeal therefrom, Julius v. Lord Bishop of Oxford (1880) 5 A.C. 214 there is a clear enunciation of the principles as to how words like 'it shall be lawful' or 'may' which are prima facie discretionary should be construed. In Julius v. Lord Bishop of Oxford (1879) 4 Q.B.D. 525Earl Cairns, L.C, says:
They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power.
109. Lord Selborne in the same case observed thus at page 235:
The meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved Aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power.
110. In The Queen v. Bishop of Oxford (1879) 4 Q.B.D. 525 (the same case in the Court of Appeal) Baggallay, L.J., observed thus:
Such words may have different meanings in different sections of the same statute, or even in different portions of the same section; and, whether, in any particular section or portion of a section, they are to be regarded as compulsory or as importing a discretion, must depend, not only upon the immediate, context, but also upon the object and general scope of the enactment.
111. Having regard to these principles let me proceed to examine Section 23. It contains three clauses : (a) deals with the ward, (b) deals with the minor relations of the ward, (c) the legal heirs of the ward. The section provides for orders or arrangements being made in regard to four things, custody, residence, education and marriage. In so far as the ward is concerned superintendence of whose person the Court of Wards assumes, he may be a minor or a lunatic or an adult who is neither but over whom for purposes of high policy to use the language of the learned Advocate-General they choose to assume superintendence under Section 15 of the Act. It will be seen that under Section 27, the statute makes it imperative on them to provide in respect of the ward for all the above matters in virtue of their having taken the property of the ward. One may therefore say that in so far as the ward is concerned, it is a compellable duty under the statute and 'may' should be construed as obligatory. But can it be similarly said of the persons mentioned in (b) and (c)? In my opinion, it cannot be. Prima facie Clause (b) suggests that the Court of Wards are not bound to provide for all the minor's relations of the category mentioned in that section but only for such persons who in the opinion of the Court of Wards are entitled to maintenance. It is only with reference to such persons they can pass the orders or make arrangements. Thus the basis of the power or authority conferred is the obligation to provide for maintenance at the charge of the ward's estate, that is to say, in cases where the estate in the hands of the ward would have been liable if the Court of Wards had not assumed superintendence of the estate. But for the power conferred by Section 23, the Court of Wards would have no right to do any of the things mentioned in Section 23 with reference to them. In the exercise of their discretion the Court of Wards when called upon to do so may provide for a residence or suggest a particular marriage or a course of education and provide funds therefor or direct that a particular relation should be in charge of somebody and provide funds for its maintenance and keeping. This they will do having regard to the resources of the estate. It may be their orders cannot be questioned in the sense they cannot be rendered liable therefor or be compelled to vary or alter them. But it does not follow that the Court of Wards can impose their will on the natural guardian who may be in charge of such minors or prevent the Civil Court from disregarding such orders and arrangements made by the Court of Wards as are not to the benefit of the minors. To so construe would be to infringe the private rights of the natural guardian of such relatives or encroach on the powers of the Court to do what is best for the minors. One of the principles of statutory construction to be kept in view in this connection is thus stated by Lord Watson in Metropolitan Asylum District v. Hill (1881) 6 A.C. 193
Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowerd to determine whether, the general powers' committed to them shall be put into execution or not, I think the fair inference is that the Legislature intended that discretion to be exercised in conformity with private rights.
112. Even viewed as a compellable duty, it is intended to be exercised for the benefit of the several persons mentioned therein and in fulfillment of the liability cast on the estate which they have taken charge of and when called upon to do so Cockburn, C.J., in the same case The Queen v. Bishop of Oxford (1879) 4 Q.B.D. 245 , refers to an American decision which correctly enunciates the principle to be applied even construing 'may' to have been used in an imperative sense:
The conclusion to be deduced from the authorities is that where power is given to public officers, in the language of the Act before us, or in equivalent language - whenever the public interest or individual rights call for its exercise - the language used, though permissive in form, is, in fact, peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depository to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.
113. Where power is given by the word 'may', Lord Blackburn explains:
It is merely enabling the donee to act and so may not inaccurately be said to be equivalent to saying he may act; yet if the object of giving the power is to enable the donee to effectuate a right, then it is the duty of the donee of the powers to exercise the power when those who have the right to call upon him so to do.
114. When the power is exercised and the order or arrangement made in pursuance thereof, it is open to those who have invoked the power to take the benefit of the order or arrangement. The use of the word 'order' therefore in Section 23 does not indicate that it has any obligatory force on the person for whose benefit it was made. And the Court of Wards is not clothed with any right or power over the persons mentioned therein. Section 23 therefore in my opinion does not take away the powers of the natural guardians of the minors mentioned in (b) or (c). In the exercise of their powers, the Court of Wards is bound to conform to their wishes. If they choose to do anything in violation of their rights it will be illegal and the natural guardians are entitled to seek the aid of the Court for the protection of their rights.
115. It has been repeatedly and persistently pressed upon us that dictated by a high policy Section 23 clothes the Court of Wards with plenary powers and any order or arrangement made by them in the exercise of such a power should not be interfered with unless exercised maliciously, fraudulently or corruptly. The learned Advocate-General relied on a number of cases in which Courts have refused to interfere with the discretion of Corporations empowered by statute in the execution of works intended for public benefit. In my opinion these cases are irrelevant and have no bearing on the facts of this case. As pointed out already there is no right or power conferred on the Court of Wards in the sense of an authority to interfere with the rights of others and no question of corruption or malice can arise in the alleged exercise of it.
116. The next question is whether the action of the Court of Wards in the purported exercise of their alleged powers is beneficial or detrimental to the interests of minors so as to warrant this Court's interference.
117. In dealing with the nature of the jurisdiction over infants and to what extent the Court can control even the right of the father to the person of his child or education which he intends to impart to them, Lord Esher, M.R., in The Queen v. Gyngall (1893) 2 Q.B. 232 after discussing the scope of common law jurisdiction regarding infants proceeded to observe thus at p. 239:
But there was, another and an absolutely different and distinguishable jurisdiction, which has been exercised by the Court of Chancery from time immemorial. That was not a jurisdiction to determine right as between a parent and a stranger, or as between a parent and a child. It was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in the place of a parent, and as if it were the parent of the child, thus superseding the natural guardianship of the parent.
118. The Lord Chancellor (Eldon) in De Manneville v. De Manneville (1804) 10 Ves. Jun. 52 at 63, 64 : 32 E.R. 762 , says:
'The Court represents the King as parens petriae.... But Lord Thurow's opinion went upon this; that the law imposed a duty upon parents; and. in general gives them a credit for ability and inclination to execute it. But that presumption, like all others would fail in particular instances; and if an instance occurred, in which the father was unable or unwilling to execute that duty, and, farther, was actively proceeding against it, of necessity the State must place somewhere a superintending power over those, who cannot take care of themselves; and have not the benefit of that care, which is presumed to be generally effectual....' 'Then, if there is a jurisdiction, under what circumstances is it to be exercised?.... Looking at the father's situation, and taking his own representation as to his inclination with regard to this child, upon the affidavits there is a fair suspicion of real danger, that the child may be removed out of this country.... Some method must be taken to secure to the Court, that the person of the child shall remain in this country.'
119. The Rajah says the Court of Wards is proposing to send his infant children, two boys of the ages of 12 and 9 and two girls of the ages of 14 and 10 out of the jurisdiction of this. Court with the avowed object of giving them the benefit of public school education in Great Britain, but their object, is to completely cut away all his relations with them. He submits that the course the Court of Wards intends to follow is not also beneficial in the interests of his infant children having regard to their situation in life and to ~their health, that education and residence in England are ill-suited to them and his wishes in respect thereof have been completely disregarded and there are ample facilities in this country, where education can be imparted to them suited to their condition in life.
120. It is recognised principle of English Courts that an infant should not be sent out of their jurisdiction. Of course it is not an inflexible rule and there are exceptions to it. But it is an invariable rule. Vide Mountstuart v. Mountstuart (1837) 2 My. & Cr. 31 : 40 E.R. 552. In Campbell v. Mackay (1837) 6 Vesey 363 : 31 E.R. 1095, the Lord Chancellor (Cottenham) delivered himself to the same effect at p. 553 (40 E.R.):
In the case of Mountstuart v. Mountstuart (1837) 2 My. & Cr. 31 : 40 E.R. 552, Lord Elden appears to have said that the Court never makes an order for taking the infant out of the jurisdiction. Subsequent decisions show that exceptions are sometimes made to the rule, but such exceptions are and ought to be very rare. Since I have held the Great Seal I have had reason to lament that the rule has not been more strictly adhered to.
121. Then he proceeds to make certain observations as to why an English infant should not be sent out of England for a permanent residence abroad which in my opinion would apply to the children of the Rajah in the present case and completely bear out what the Rajah and the Dowager Rani sought to impress upon us. They are to this effect:
Independently of this well-established rule of the Court, and the principle upon which it proceeds, I am convinced that scarcely anything can be more injurious to the future prospects of English children, and particularly of English boys, than a permanent residence abroad. Without the proper opportunities of attending the religious service of the church to which they belong, separated from their natural connections, estranged from the members of their own families, withdrawn from their courses of education which their contemporaries are pursuing, and accustomed to habits and manners which are not those of their own country, they must be becoming, from day to day, less and less adapted to the position which, it is to be wished, they should hereafter occupy in their native land. (40 E.R. 553.)
In addition to all these considerations I find, in the present case, the most anxious wishes expressed by the father of these children that they should be settled in this country and receive a purely English education.... It is needless to observe that the law, which permits the father to appoint the guardians of his children, will pay the highest respect to the expression of his wishes as to the mode of their education. (40 E.R. 553.)
122. The eldest boy is the legal heir to an impartible estate which is the biggest in this presidency and situated as these boys and girls are, Lord Cottenham's observations would exactly fit in, if I were to substitute for English boys and children Indian boys and children of a person of the position in life of the Rajah of Vizianagaram. No such 'irresistible necessity' as would entitle a Court to disregard these considerations has been made out by the Court of Wards. It is not pretended that the children cannot get the necessary training and education suitable to their position in life in this presidency or in India. I am therefore clearly of opinion that it is not in the interests of these minor children that they should be sent to England for the purposes of their education.
123. It will also be seen from the observations of Lord Cottenham that the wishes of the father are a paramount consideration which ought not to be slighted. Vide also the observations of Brett, M.R., in In re Agar-Ellis Agar-Ellis v. Lascelles (1883) 24 Ch. D. 317 and also Bowen, L.J., . The Court of Wards state they had to ignore the wishes of the father on account of his being their ward. They treat him practically as civilly dead. They say they consulted the relations and decided on the course they have taken in the interests of the children. It transpired however that except the mother, other relations like the Dowager Rani, i.e., the mother of the Rajah and the grandmother of the children, the sister of the Rajah and the brother of the Rajah the Raj Kumar of Vizianagaram are against sending the children to England. What the Court of Wards say is some of them have changed their minds now but so far as they are concerned they have arrived at the decision and so long as they have acted under the provisions of the Court of Wards Act none can question their right to do so and what they have laid down must be carried out. But we cannot take the same view as the Court of Wards. On account of high policy the Court of Wards might have thought it expedient to assume the superintendence of the person of the Rajah. The Rajah is questioning the declaration made under the Act in a suit in Vizagapatam. It is unnecessary for us to express our view on the propriety of the action of the Local Government in making the declaration and whether the declaration can be questioned in view of Section 48. For the purpose of the Court of Wards Act it may be open to the Court of Wards to treat the Rajah as non-existent. But we cannot shut our eyes to what has been going on in Court. The Rajah has conducted his case in person. He has done it with considerable sobriety and moderation and we have watched him carefully. It is difficult for any Court to treat him as a person of unsound mind. No Court of Law would be justified in - ignoring the wishes of the Rajah as father, and not giving due weight to them. From what has transpired and the attitude of the Court of Wards the Rajah's apprehension cannot be said to be unfounded, namely, that the minors are being sent away so that his relations with them would be permanently cut off and he be prevented from having any access to them for a considerable time to come. No Court of Law could tolerate such a conduct. Therefore when the rights of the natural guardian are disputed on the ground that he cannot act, when there is no other legally constituted guardian, when there is danger of the minors being removed out of the jurisdiction of this Court and when such a course is not beneficial to the minors, it is absolutely necessary for us to interfere. I therefore agree in the order proposed by my Lord the Chief Justice.