1. This application for writs of certiorari and prohibition raises several interesting and important questions. The applicant Indumati Devi Chowdhuri is the widow and executrix of the late Birendra Chandra Roy Chowdhuri, who died on 12th August 1935. Birendra was the son of Hem Chandra Roy Chowdhury, zamindar of Dhakora in the district of Dacca, who died intestate some time prior to 1925. At the time of Hem Chandra's death there was an application by him pending to be declared a disqualified proprietor under Section 6 (e), Court of Wards Act, 1879. After his death, a similar application was made by his heirs, of whom Birendra was one, and they were in March 1925 declared disqualified proprietors, and in pursuance of the order the Court of Wards took charge of their property including their shares in Hem Chandra's estate. On Birendra's death the Court of Wards retained charge of his property in terms of Section 13-A, Court of Wards Act. The applicant and her co-executor, Dakshina Ranjan Bhattaeharjee, obtained probate of Birendra's will on 6th October 1936. Under clause 3 of the will Birendra bequeathed a life estate in all his properties to the applicant.
2. In the event of his dying without leaving a son, the applicant is given a power of adoption, and on her death the estate is to vest absolutely to the testator's natural or adopted son, as the case may be. The testator died childless and the applicant has not as yet exercised her power of adoption. If she dies without exercising it, the testator's estate after her death is to vest in a Board of Trustees, in trust for the various charitable and religious purposes mentioned in the latter part of the will. The position is to some extent complicated by the fact that in addition to his interest in his father's estate as heir, the testator was interested in another estate under the will of his paternal grandmother Ushamoni Debi Chaudhurani. This will was proved by the executor, one Surendra Chandra Banerjee in 1924. The applicant states in her petition that the Court of 'Wards never had the management of the property, and that she is informed by Surendra that Ushamoni's estate has not yet been completely administered. She further states that on 28th February 1937, she received from the Collector of Dacca the copy of an order of the Court of Wards of 14th January 1937. By that order the Court of Wards under Section 27 of the Act declares the applicant to be incompetent to manage her own property under Section 6 (a) of the Act. The order declares the intention of the Court to take under its charge any property 'since inherited' by the applicant, and directs that possession be taken of such property on behalf of the Court of Wards.
3. The petition goes on to state that the applicant is informed by Surendra that the Court of Wards is demanding possession of that part of Ushamoni's estate that has been bequeathed by her will to Birendra. A copy of a lengthy letter of protest addressed by the applicants' solicitors to the Honourable Member, Board of Revenue, Bengal, and dated 18th April 1937, is attached to the petition; no reply had been received when the petition was affirmed on 21st May 1937. The petition was presented on 24th May 1937, and thereupon McNair J. issued the present rule. The rule calls upon the Court of Wards to show cause why the proceedings culminating in the order of 14th January 1937 should not be quashed on the ground (1) that the applicant was not at the date of the order a proprietor within the meaning of the Act, or otherwise amenable to the jurisdiction of the Bengal Court of Wards, and (2) that the making of the order, without notice to or hearing the person affected by it, constituted a breach of natural justice and was outside or in excess of any jurisdiction conferred by the Act.
4. The Court of Wards is also required to show cause why a writ of prohibition or in the alternative an injunction should not issue prohibiting and restraining the Court of Wards, its servants or agents, from taking any action founded on the order towards possessing themselves of property vested in the applicant and her co-executor as executrix and executor of Birendra's estate, or otherwise interfering with them, or with Surendra as executor of the estate of Ushamoni in the performance of their respective duties. The learned standing counsel appearing to show cause on behalf of the Court of Wards takes a preliminary point namely that the applicant has forfeited her right to invoke the power of the Court to issue the prerogative writs she seeks, by failing to be candid in her statement of the facts and by concealing relevant matters from the Court. It has been authoritatively laid down in Rex v. Kensington Income-tax Commissioners; Ex parte Princess Edmond de Polignac (1917) 1 KB 486 that the rule of the Court requiring uberrima fides on the part of the applicant for an ex parte injunction applies equally to the case of an application for a rule nisi for a writ of prohibition, and that where there has been a suppression of material facts, the Court will refuse the writ without going into the merits of the case. Mr. Barwell for the applicant does not dispute the proposition but he says that the circumstances here do not disclose any want of candour on his client's part.
5. Before considering the facts on which the objection is based, I may perhaps observe that although they are set out in the affidavit in opposition, affirmed by the Manager of the Dhakora Wards estate, the affidavit does not charge the applicant with concealment, and if the charge was going to be made, it would have been better in my opinion to have formulated it specifically. The facts relied on are that although it is stated in the petition that the applicant is informed by Surendra that. testator's estate has not yet been completely administered, Surendra at one stage brought a suit at Dacca against the Court of Wards for a declaration that the estate had not been fully administered and that he was entitled to remain in possession. Surendra obtained an ex parte injunction, which was-subsequently dissolved at the instance of the Court of Wards, and thereupon Surendra withdrew his suit. The record of these proceedings is not exhibited, but even assuming the statements and the affidavit in opposition with regard to them are in all respects accurate, there is no allegation that at the time the applicant affirmed the-petition she was aware of what had happened.
6. The most that can be said is that the-petition shows she had consulted Surendra as to the progress of the administration, and it is therefore not unlikely that he had told her of the Dacca suit. In the absence of a specific charge of concealment and of an allegation of knowledge, I cannot attach much importance to the fact that she has sworn no affidavit in reply stating that she was unaware of the suit. Indeed from what appears from the affidavit in reply sworn by the co-executor, I am inclined to think that her information at the date of the petition was by no means complete. It is now plain that the reason why the Court of Wards made the order of 14th January was that on 4th January 1937 the Commissioner of Dacca set aside an order made by the Collector imposing a fine of Rs. 500 on Surendra under Section 57, Court of Wards Act, for failure to comply with an order made under Section 37, to deliver up certain papers. It appears from the Commissioner's Judgment that he took the view that the applicant not having been declared a disqualified proprietor under Section 6 (a), the property to which the papers related was not the property of a ward as defined by Section 3.
7. There are observations in the Commissioner's Judgment which certainly support the applicants' allegation that the Court has not yet obtained possession of Ushamoni's estate. No one can doubt that these matters would have been set out in the petition, had the applicant been aware of them. In my opinion, the suggestion of the concealment of relevant facts has not been made out, and the objection based on this suggestion therefore fails. There is a second objection taken, which, if well founded, would relieve me of the duty of dealing with the rule on its merits. It is said that this is a matter concerning the revenue or concerning an act ordered or done in the collection thereof within the meaning of Section 226 (1), Government of India Act 1935, and so outside the original jurisdiction of the High Court. The only authority on which the standing counsel relies for this submission is Secretary of State v. Shreegobinda Chaudhuri , a decision of this Court in its civil appellate jurisdiction. The point of law decided in that case was that a suit by a formerly disqualified proprietor for damages occasioned to his estate by the negligence and misfeasance of a manager appointed by the Court of Wards does not lie against the secretary of state. The origin and history of the Court of Wards is dealt with at considerable length in the judgment of Rankin C. J. That judgment sets out the relevant legislation from the time of the Permanent Settlement, and it is pointed out that except from 1870 to 1879 the Court of Wards has always been the Board of Revenue. Rankin C. J. says (p. 1296):
If we look to the general scheme of that Act, it is abundantly apparent, both by its talk of jurisdiction over disqualified proprietors and by the nature of the power entrusted to the Court of Wards and the orders which it is made competent to pass, that this whole scheme of dealing with females, minors and persons of unsound mind as regards their estates is a part and an essential part of the arrangement brought into force for collection of the land revenue and the Permanent Settlement of Bengal. From the beginning, the jurisdiction exercised by the Court of Wards is an exercise of power essentially sovereign power- power to take over the estates of persons unable to manage their own estates in order that the estates may be properly managed and Government revenue may be rendered safe. Public interest and the interest of the revenue are clearly the object of the powers given and some of the powers are very drastic.
8. What the Court was considering was the distinction drawn in Peninsular & Oriental Steam Navigation Co. v. Secy. of State (1868) 5 Bom HCR App 1 between acts done by the Government in its sovereign capacity, and acts done by it' as successor to the trading and mercantile functions of the Bast India Company, and it held that the jurisdiction exercised by the Court of Wards is a power essentially sovereign and that the Secretary of State cannot be sued for acts done by his agents in exercise of that power. I assume that it is historically correct to say that the motive of Government in instituting and maintaining a Court of Wards was to safeguard estates from mismanagement and consequent inability to pay revenue, although my attention has not been drawn to any Preamble or section which indicates that motive. In my opinion however this is no justification for saying that an order of the Court of Wards declaring a female a disqualified proprietor under Section 6 (a) is a matter concerning the revenue or an act done in the collection thereof. A complete answer to the contention of the Court of Wards seems to be furnished by the decision of the Judicial Committee of the Privy Council in Alcock Ashdown & Co. Ltd. v. Chief Revenue Authority, Bombay (1923) 10 AIR PC 138. In the Income-tax Act 1918 there was no provision corresponding to Section 66 (2), Income-tax Act 1922, which makes it obligatory upon the Commissioner to state a case and refer it to the High Court, when he is required by the assessee to do so and a question of law arises out of an order or decision made in the circumstances mentioned in the sub-section.
9. The Chief Revenue Authority had refused to state a case for the opinion of the High Court under Section 51 of the Act of 1918. The assessees obtained a rule under Section 45, Specific Relief Act, calling upon the authority to show cause why he should not state a case, but the rule was subsequently discharged. Both before the High Court and the Judicial Committee, the Chief Revenue Authority relied on Section 106 (2), Government of India Act, 1915 which corresponds to Section 226 (1) of the present Act. Lord Phillimore in delivering the judgment of the Board said (p. 233):
The excluding law is suggested to be the already cited clause in Section 106, Sub-section 2, Government of India Act, which is in the following terms : 'The High Courts have not and may not exercise any original jurisdiction in any matter concerning the revenue or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.'
In their Lordships' view, the order of a High Court to a revenue officer to do his statutory duty would not be the exercise of 'original jurisdiction in any matter concerning the revenue', and the latter part of the clause need not be considered, for the proceedings in this case had not to do with the collection of the revenue, but with the preliminary assessment to ascertain what that revenue was.
10. To my mind the case here is stronger. The Income-tax Act is a taxing statute designed to provide machinery for the collection of an important head of the revenue of India. If the refusal of the authority to state a case at the instance of an asses-see is not a matter concerning the revenue, how can it plausibly be argued that the declaration of the Court of Wards that the applicant is incompetent to manage her own property is such a matter? The second preliminary objection accordingly fails. I now turn to the first ground upon which the rule was issued namely that the applicant is not the 'proprietor of an estate' within the meaning of Section 6, Court of Wards Act. It is admitted that if she is not such a proprietor, the Court of Wards had no jurisdiction to make the order of 14th January 1937. The standing counsel however argues, first, that she is a proprietor, and secondly, that even if she is not, the Court of Wards had jurisdiction to decide that she was, and that this Court will not interfere with the decision, though erroneous, if it is bona fide. As regards the first point 'proprietor' is not defined by the Act, nor have I been referred to any case where the term has been interpreted judicially. I think however in this case the applicant must be held to be the proprietor of the estate of her late husband. She is executrix and tenant for life of the estate under the will. She has obtained probate and would be entitled to the possession of the ^state, had the Court of Wards not elected to retain charge under Section 13-A. It seems unreasonable to say either that the estate has no proprietor or that the proprietors are the trustees who will succeed to it on the applicant's death, if she does not exercise her power of adoption.
11. Mr. Barwell for the applicant relies on Ganoda Sundary v. Nalini Ranjan (1909) 36 Cal 28. The plaintiff in that case was the executrix of the will of her husband, who had died childless. In exercise of a power given by the will the plaintiff adopted a minor. Under the terms of the will, the plaintiff as executrix was to remain 'confirmed in the office' until the adopted son attained majority, upon which event the testator's property was to devolve on him. The Court of Wards declared the adopted son a minor under Section 6 (b) of Act, and took steps to obtain possession of the testator's estate. The plaintiff sought an injunction to restrain the Commissioner, Collector, and Deputy Collector from interfering with her management and possession of the estate. In dealing with the jurisdiction of the Court of Wards to make the declaration under Section 6 (b), Woodroff J. said (page 41):
The Court of Wards can only take possession of the estate, if the plaintiff's minor adopted son can be said to be its 'proprietor' within the meaning of the Court of Wards Act. That term is not defined and it is therefore necessary to ascertain its meaning in this connexion. It is contended for the defendants that the executrix is not the proprietor. But this is not the proper form of the question, which rather is-is the minor the proprietor? If he is not, the Court of Wards have clearly no right to take it from the plaintiff, in whom as executrix it is vested in law. It is contended further that the position created for the plaintiff by the will is that merely of a manager for the infant proprietor. But however this may be we must look at the grant of probate. Under that grant the plaintiff is the representative of the testator and the estate vests in her as such. But then it is said that, even assuming this to be so, 'proprietor' in the Act does not mean a person representatively entitled, but the beneficiary, and that, as the minor is the ultimate beneficiary, the property is his notwithstanding that the estate has admittedly not yet been administered. I cannot however accept this contention. If it were sound the Court of Wards would be entitled to override the wishes of testators and proprietors generally. A person may desire and direct that his estate should vest in and be managed by an executor.
12. It is not difficult to distinguish that ease from the present. Here there is no postponement of devolution until the attainment of majority. The testator not only contemplates an immediate gift, but he makes the donee of the life-interest an executrix of the will. The suggested difficulties with regard to the testator's interest in Ushamoni's estate have really no relevance. Assuming that that interest has not yet become part of the testator's estate it does not prevent the applicant from being the 'proprietor' of the testator's estate as it is now constituted. My decision on this aspect of the case makes it unnecessary to consider whether the Court of Wards had jurisdiction to come to what is ex hypothesi a wrong decision on the point. I do not pretend to have considered the matter fully. I have however endeavoured to apply the test formulated by the Judicial Committee in Colonial Bank of Australasia v. Willan (1873) LR 5 PC 417 at p. 442:
In order to determine the first it is necessary to have a clear apprehension of what is meant by the term 'want of jurisdiction.' There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry or upon facts or a fact to be adjudicated upon in the course of the inquiry, It is obvious that conditions of the last differ materially from those of the three other classes. Objections founded on the personal incompetency of the Judge or on the nature of the subject matter or on the absence of some essential preliminary, must obviously, in most cases depend upon matters which whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject matter he properly entered upon the inquiry, but miscarried in the course of it. The superior Court cannot quash an adjudication upon such an objection without assuming the functions of the Court of appeal and the power to re-try a question which the Judge was competent to decide.
13. Now in this case the question whether the applicant is a proprietor within the meaning of Section 6 of the Act depends upon the construction of the Act and admitted facts and documents. There is really no question of facts which the Court of Wards has to determine before it can come to its decision and the decision can I think be fairly described as collateral to the merits of the case. If this view is correct, the decision of the Court of Wards is not conclusive if having regard to the language of the Act and the admitted facts and documents, it is erroneous. I now come to the second ground for the rule namely that the declaration complained of was made without jurisdiction because it was made ex parte and without an opportunity being given to the applicant of being heard. The principle relied on is that where departments of Government of statutory bodies are given judicial or quasi judicial functions the Courts will interfere to prevent the exercise of such functions in a non-judicial manner. The obligation to give notice and to hear the party affected was recognized in the case of a Board of Works in Cooper v. The Board of Works for the Wandsworth District (1863) 14 CB (NS) 180, which was followed in Hopkins v. Smethwick Local Board (1889) 24 QBD 712, Wills J. stating at page 714:
In condemning a man to have his house pulled down, a judicial act is as much implied as in fining him 5; and as the Local Board is the only tribunal that can make such an order, its act must be a judicial act and the party to be affected should have a notice given him and there is no notice unless notice is given of time when and place at which the party may appear and shew cause.
14. In Lapointe v. L' Association de Bienfaisance et de Retraite de la Police de Montreal (1906) AC 535, Lord Macnaghten-repeated with approval what had been said in previous cases by Jessel M.E. (at page 539):
The learned Counsel for the appellant referred to two well-known Club cases before Sir George Jessel M. B., Fisher v. Keane (1879) 11 Ch D 353 and Labouchere v. Earl of Wharncliffe (1880) 13 Ch D 346. It may be worth while to mention a later case before the same learned Judge, in which he refers to the case in Wood v. Wood (1874) LR 9 Ex 190, in the Exchequer and expresses regret that he was not acquainted with that case when those Club cases were decided-see Russell v. Russell (1880) 14 Ch D 471.
'It contains' he says, 'a very valuable statement by the Lord Chief Baron as to his view of the mode of administering justice by persons other than Judges who have judicial functions to perform which I should have been very glad to have had before me on both those Club cases that I recently heard namely the case of Fisher v. Keane (1879) 11 Ch D 353 and the case of Labouchere v. Earl of Wharncliffe (1880) 13 Ch D 346. The passage I mean is this, referring to a committee: 'They are bound in the exercise of their functions by the rule expressed in the maxim 'Audi alteram partem' that no man should be condemned to consequences resulting from alleged misconduct unheard and without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.
15. The regular exercise of quasi judicial powers will be enforced in. England by writs of certiorari and prohibition : Rex v. Electricity Commissioners (1924) 1 KB 171. Board of Education v. Rice (1911) AC 179 shows that certiorari and mandamus will issue to compel a department of Government to perform its judicial functions. Indeed it was not contended that a department of Government was in a different position from any other quasi judicial tribunal. The power of the High Court to issue writs of certiorari is unquestioned and this Court has recently held that the power of the Supreme Court to issue writs of prohibition has been inherited by the High Court: In Re: National Carbon Co. Incorporated , see also In Re: Ramjidas Mahaliram (1935) 62 Cal 1011 at p. 1027. The question therefore is whether the Court of Wards in making a declaration under Section 6 (a), Court of Wards Act is acting judicially. If it is so acting, there can I think be no doubt that the person to be affected by the declaration is entitled to notice. As in all these cases, the statute neither specifically provides for notice nor specifically dispenses with it. It appears to me irrelevant to say that the declaration and what follows on it are acts done in exercise of Sovereign functions. In one Sense the whole administration of: justice is an exercise of a sovereign function. Although the Courts are independent of the Executive Government, they are none the less the Sovereign's Courts. If the submission means that the declaration is a purely administrative act, the submission is in my judgment wrong. It appears to me to be as much a judicial act to take away from the subject the right to manage his property in any lawful manner he may choose after a declaration that he is incompetent to manage it as it is to deprive him of it by sentencing him to pay a fine. Before the Court of Wards under Section 7 can take charge of the property of a female after declaring her to be incompetent to manage it, the Court must consider whether there exist materials to warrant such a declaration and in my view the principles of natural justice demand that the female should have the opportunity of testing those materials and if she desires, of establishing her competence.
16. In these circumstances it appears to me the rule must be made absolute on the second ground on which it was issued. This means that order of 14th January 1937 is quashed on the second ground set out in the rule and that the Court of Wards is restrained from acting under it. What rights the Court of Wards may have over the estate of Birendra apart from the order is a question which is not before me. That is to say, the writ of prohibition will prohibit the Court of Wards, its servants and agents from taking any action founded on the order towards possessing themselves of property vested in the applicant and her co-executor as executrix and executor of Birendra's estate and the writ will be limited to that prohibition. After hearing argument I. have decided that the costs of these proceedings must be paid by the Court of Wards. The costs will be taxed as of a defended suit and I certify for the employment of two counsel.