1. This appeal and Rule are directed against a series of orders under the Guardians and Wards Act of 1890, the validity whereof is assailed on the ground that they were made by the Court below wholly without jurisdiction.
2. It appears that one Dibakar Bhatta, a wealthy Hindu governed by the Mitakshara law, left a daughter, Bachhi Sahdei. The mother of this girl, Bunda Koer, who was the fourth wife of Dibakar Bhatta, had predeceased her husband; but her three co-wives Subhadra Koer, Ram Koer and Mahesha Koer, who are the petitioners and appellants before us, survived him. The case for these three ladies is that one Ramadin Ohowdhury, a man of considerable wealth, who is the opposite party in the Rule and respondent in the appeal, was anxious to secure the marriage of his own son with Bachhi, so that ultimately the estate of Dibakar Bhatta might pass into the hands of the representatives of his own family. The petitioners assert that Dhajadhari, the maternal grandfather of Bachhi, was a servant of this Ramadin Ohowdhury and was set up by him to make an application to the District Judge for appointment of himself as guardian of the person and property of the girl. It is necessary to state at this stage that the girl was possessed of no property; she had no present interest in the estate left by her father Dibakar Bhatta, and was merely the reversionary heir, entitled to take the estate after the demise of all the three widows. The application of Dhajadhari was promptly opposed by the three widows. But it appears to have been represented to the District Judge, in the course of these proceedings, that the widows were under the control of two unscrupulous persona and that the life of the girl was in danger. No evidence, however, was taken at any stage of the proceedings and we have no definite information as to the character and antecedents of these persons, or the nature and extent of their influence upon the three ladies. However that may be, the District Judge deemed it imperatively necessary to place the girl in absolutely safe custody. To achieve this object, he thought it essential to remove the widows from the influence and control of those two persons, and concluded that the end might be attained if the ladies could be induced to place all their properties in the hands of Ramadin Chowdhury. With this object in view, the District Judge proceeded to pass a series of orders of an extraordinary character, which cannot possibly be justified under the provisions of the Guardians and Wards Act. It has not been disputed that it was not competent to the learned Judge to deal in any manner, directly or indirectly, with the estate vested in the ladies. The only matter before him was the question of the appointment of a suitable person as guardian of the person of the infant, and also of her property, if indeed, she had any property at all. The ladies, however, were obdurate and refused at one stage to place their property in the hands of Ramadia Chowdhury as had been suggested by the District Judge. The learned Judge thereupon proceeded to record in the order sheet more than one order to the effect that if the widows did not agree to the terms proposed by the Court, the minor, whom they dearly loved, would be taken away from their custody and placed in the hands of her maternal grandfather who would be appointed guardian of her person. The earned Counsel for the petitioners has described the method pursued by the District Judge as judicial coercion, and there can be no room for reasonable doubt that, although he may have acted from the best of motives, his orders were wholly without authority, and he put pressure upon the widows in a manner never contemplated by the framers of the Guardians and Wards Act. The result was that the widows at last yielded to the pressure of the Judge. A Commissioner was appointed to make an estimate of the assets in their hands. The terms were arranged by the learned Judge himself, and ultimately a lease of the estate in the hand of the widows was granted by them to Ramadin Chowdhury. Finally, the widows were made to present an application for appointment of themselves as guardians of the person of their infant step-daughter. This application was granted and they were formally appointed guardians, Bat there is no room for reasonable doubt that this application was not voluntarily made: the widows had throughout protested that the appointment of any guardian in respect of the person and property of Baohhi was wholly needless and that the application of Dhajadhari in that behalf was not only not made bona fide for the benefit of the infant, but had been made at the instance of Ramadin Chowdhury to enable him to get the girl married to his own son and thus ultimately to seize the estate of Dibakar Bhatta. In this view of the matter, it is clear that the orders of the District Judge cannot be supported. The proceedings, from beginning to end, were a grievous misapplication of the provisions of the statute. No guardian was needed for the protection of the person of the minor; she had no property of which a possible guardian could take charge. The machinery of the law was set in motion by Ramadin Chowdhury who induced his servant, the maternal grandfather of the infant, to make an application for appointment of himself as her guardian in order that she might be ultimately married to his son. Orders passed in proceedings so instituted and conducted, even if they were nominally in conformity with statutory provisions, could hardly be regarded as invested with the efficacy of legal orders made in bona fide judicial proceedings. The orders are wholly without jurisdiction and must be treated as absolutely null and void.
3. It has been suggested, however, by the learned Vakil who appeared to show cause that the District Judge acted as an arbitrator chosen by the parties and that his decision cannot consequently be challenged by them by way of appeal to this Court. This argument is wholly fallacious. No doubt, as ruled by the Judicial Committee in the case of Ledgard v. Bull 9 A. 191 : 13 I.A. 134 if the parties have treated a Judge as their arbitrator and have submitted to his decision, even though he had no jurisdiction to deal with the matter in controversy, his decision is binding upon them as if it were the award of an arbitrator. It is plain, however, that this doctrine cannot possibly be applied to the circumstances of the case before Rs. The Judge cannot be deemed, by any fiction of law, to have been an arbitrator chosen by the parties voluntarily; the ladies acted under judicial pressure of the highest degree, to which they were not in a position to offer effective and successful resistance. It is difficult to appreciate how, under these circumstances, the orders of the learned Judge can be supported either as proper judicial orders or as the adjudications of an arbitrator to whose judgment the parties have voluntarily submitted the matter in controversy between them.
4. The result, therefore, is that this appeal is allowed, and the Rule made absolute. All the orders of the Court below from the 3rd January 1911 to the 8th March 1911 are discharged as made without jurisdiction. The appellants are entitled to their costs of this Court, as also of the Court below, from Ramadin Chowdhury who has been at the root of these extraordinary and mischievous proceedings. We assess the hearing fee in the appeal at five gold mohurs and make no separate order for costs in the Rule.