Judgement Appeal (No. 105 of 1938) from a judgment and order of the High Court in its appellate jurisdiction (April 11, 1938), which had allowed in part an appeal by the present respondent, Oswald Forbes, from a judgment and order of the said High Court in its original jurisdiction (July 22, 1937). By a summons taken out in the High Court in its original civil jurisdiction the appellants, who were the surviving executors of the will of one Arthur Henry Forbes, deceased, sought an order for the appointment of the Official Trustee of Bengal as trustee of the estate of one Alexander John Forbes, deceased, under the provisions of s. 10 of the Official Trustees Act (II. of 1913), or, alternatively, for the appointment of the said Official Trustee under s. 35 of the Indian Trustees Act, 1866. The estate of the deceased consisted partly of immovable property situate outside the Division of Bengal. The Official Trustees Act, 1913, was extensively amended by the Government of India (Adaptation of Indian Laws) Order in Council, 1937, St. R. & O., 1937, No. 269, which was made by virtue of s. 293 of the Government of India Act, 1935, and came into force on April 1, 1937. By the amend ment, s. 2 of the Act of 1913 was amended so as to mean in relation to various Provinces, particular High Courts, and s. 3 of the Official Trustees Act, 1913, which provided that "For the purposes of this Act the High Court at a Presidency-"town shall have jurisdiction throughout the Presidency " was amended to read "For the purposes of this Act the High "Court shall have jurisdiction throughout the Division.” The present writ of summons was taken out on May 5, 1937. The summons was heard by Panckridge J., whose attention, however, was apparently not drawn to the amendment of the Official Trustees Act, 1913, effected by the Order in Council of 1937. He made an order appointing the Official Trustee of Bengal to be the trustee of the estate of Alexander John Forbes. On appeal by the respondent the appellate Court (Costello and Lort-Williams JJ.) held that under the provisions of the Official Trustees Act, 1913, as amended by the Government of India (Adaptation of Indian Laws) Order, 1937, the High Court had jurisdiction only in respect of property situate within the Division of Bengal. On appeal by the respondent the appellate Court (Costello and Lort-Williams JJ.) held that under the provisions of the Official Trustees Act, 1913, as amended by the Government of India (Adaptation of Indian Laws) Order, 1937, the High Court had jurisdiction only in respect of property situate within the Division of Bengal. They modified the order of Panckridge J. by directing that the Official Trustee of Bengal should be appointed trustee only of that part of the property belonging to the estate of Alexander John Forbes which was situate within the Division of Bengal. The respondent to the present appeal, alleging that the substantial points of law in issue related to the interpretation of the amendments made in the Official Trustees Act, 1913, by the Government of India (Adaptation of Indian Laws) Order in Council, 1937, raised a preliminary point as to the jurisdiction of the Judicial Committee of the Privy Council to entertain the appeal in view of the provisions of s. 205 of the Government of India Act, 1935, which provides as follows— "205.—(1) An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder, and it shall be the duty of every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or withhold a certificate "accordingly. "(2.) Where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any such question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate had been given, and, with the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave.” 1939. Oct. 24, 26. Joseph Nissim for the respondent. It is not open to the High Court to give a certificate granting leave to appeal on two grounds which are mutually exclusive. Oct. 24, 26. Joseph Nissim for the respondent. It is not open to the High Court to give a certificate granting leave to appeal on two grounds which are mutually exclusive. If it is found that the true effect of the certificate is that the High Court have certified that substantial questions of law have arisen with regard to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder, then the Court must act in accordance with the provisions of s. 205. [LORD THANKERTON It is clear that this is not a certificate under s. 205, sub-s. 1, of the Act.] The High Court appear to have overlooked s. 205 altogether; this is an order certified under the Code of Civil Procedure, and not under s. 205 of the Government of India Act, 1935, and the question is, this being a case to which s. 205 applies, whether the High Court have failed to discharge their duty under that section. It is contended that the effect of the amendment made by the Order in Council of 1937 was carefully to separate the jurisdiction of each High Court and of each Official Trustee for the first time from April, 1, 1937. Whether that is so or not clearly turns on the interpretation of the Order in Council. [Reference was made to s. 205, sub-ss.1, 2; s. 208 (b); s. 212 and s. 293 of the Government of India Act, 1935; to the Official Trustees Act, 1913, as before and after its amendment, and to the terms of the Order in Council, St. R. & O., No. 269 of 1937.] An Act as amended is a new entity. The High Courts decision granting leave to appeal violated s.205. There was a statutory duty on the High Court to consider carefully whether substantial questions of law were involved in this case with regard to the interpretation either of the Government of India Act, 1935, or the Order in Council, and their determination, whether it was to grant or withhold a certificate, should have been recorded. Further, s. 205 was never considered by the judges who gave leave to appeal. If the Federal Court had decided this case it might have refused leave for it to go further; it does not come to this Board automatically. Further, s. 205 was never considered by the judges who gave leave to appeal. If the Federal Court had decided this case it might have refused leave for it to go further; it does not come to this Board automatically. L P. E. Pugh K.C. and W. W. K. Page for the appellants. In the High Court attention was drawn to s. 205 at an early stage. It is clear on the wording of that section that it is not necessary for the High Court to give or record any reasons for giving or withholding the certificate. The Court has to consider of its own motion either to give or withhold a certificate; the section does not say that the Court has to record the fact of the giving or withholding of the certificate. [LORD THANKERTON This is a serious question of jurisdiction. This Board ought to know definitely whether a certificate has been granted or withheld.] There is the well known statutory presumption that judicial acts have been duly and regularly carried out s.114 of the Indian Evidence Act, 1 of 1872. That presumption may be a rebuttable one. Not only is there no evidence that the High Court did not consider this matter, but there is a statement that the point was referred to in the course of the argument. [Counsel also suggested that this matter should, if possible, be dealt with by adjourning the present proceedings, and not by dismissing the appeal.] Nov. 10. The judgment of their Lordships was delivered by LORD THANKERTON. This is an appeal from a judgment and order of the High Court of Judicature at Fort William in Bengal, in its civil appellate jurisdiction, dated April 11, 1938, which allowed in part the appeal of the present respondent from the judgment and order of the said High Court, in its original jurisdiction, made by Panckridge J. on July 22, 1937. The respondent raises a preliminary point as to the jurisdiction of this Board to entertain this appeal in view of the provisions of s. 205 of the Government of India Act, 1935, which provides as follows— "205.—(1) An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder, and it shall be the duty of every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or withhold a certificate accordingly. "(2.) Where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any such question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate had been given, and, with the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave." This section imposes on the High Court the duty of con sidering and determining in every case, as part of its judgment, decree or final order, the giving or withholding of the certificate. On such determination the jurisdiction to entertain an appeal from such judgment, decree or final order depends, and, manifestly, such determination, whether it involves the granting or withholding of a certificate, should be recorded, not only for the information of the parties, but—a matter of equal importance—also for the certification of this Board and the Federal Court as to their jurisdiction to entertain an appeal. No such record appears in the present case, nor is there anything to suggest that the matter was considered by the High Court Bench which delivered the judgment and order of April n, 1938. The same is true of the High Court Bench which certified this case as a fit one for appeal to His Majesty in Council on June 15, 1938, and which was differently constituted. The same is true of the High Court Bench which certified this case as a fit one for appeal to His Majesty in Council on June 15, 1938, and which was differently constituted. But, as their Lordships have already indicated, the statutory duty fell to be discharged by the Bench which delivered the judgment and order of April 11, 1938. In the present suit the appellants seek an order for appointment of the Official Trustee of Bengal to be trustee of the estate of one Alexander John Forbes, deceased, under the provisions of s. 10 of the Official Trustees Act (Act II. of 1913), or, alternatively, for appointment of the said Official Trustee under s. 35 of the Indian Trustees Act, 1866; The estate of the deceased consisted partly of immovable property situate outside the Division of Bengal. The Official Trustees Act, 1913, was amended by the Government of India (Adaptation of Indian Laws) Order, 1937, which was made by virtue of s. 293 of the Government of India Act, 1935, and came into force on April 1, 1937. The present writ of summons was taken out on May 5, 1937. Panckridge J., who made the order of July 22, 1937, did not consider the Order in Council of 1937, but it was fully con sidered by the Appellate Bench (Costello and Lort-Williams JJ.), and it will be sufficient to quote some short passages from their judgment "We are quite satisfied that had the attention of the learned judge been drawn to the alteration effected by means of the Order in Council his decision would, in all probability, have been otherwise than what it was. . . . The question whether the Court can appoint the Official Trustee of Bengal as trustee over properties outside the Province seems to depend upon the provisions of s. 3 as amended by the Order in Council and s. 10 of the Official Trustees Act. ".... In other words, we think that under the provisions of the Act as it now stands this Court is not entitled to stretch its arms, if I may use the expression, beyond the territorial limits of its jurisdiction. The result is that we think that the order made by Panckridge J. cannot stand in so far as it relates to any property not lying, or not situate, within the territorial jurisdiction of the Court. Mr. The result is that we think that the order made by Panckridge J. cannot stand in so far as it relates to any property not lying, or not situate, within the territorial jurisdiction of the Court. Mr. Banerji sought to argue that there is ample power in the Court under the general provisions of the Indian Trustees Act. I do not think it necessary to consider that aspect of the matter. "This petition was essentially and primarily concerned with the appointment of the Official Trustee as such, and the matter is one which quite clearly falls to be decided under the provisions of the Official Trustees Act and that Act alone,” Sect. 205 of the Government of India Act is not referred to in the judgment. Counsel for the appellants suggested that the Court may have considered this section and decided to withhold a certificate, though that decision is not expressed. The passages quoted above make this unlikely, and in the absence of a certificate their Lordships think that the appeal should be dismissed, with costs. If, however, the High Court should hereafter make an order withholding a certificate under s. 205, the appellants are to be at liberty to apply to His Majesty in Council to have the present appeal restored. Their Lordships will humbly advise His Majesty accordingly. With reference to the costs of a petition by the respondent, which by the Boards order of May 18, 1939, were directed to be paid by him in any event, these will be taxed and set off against the costs that the appellants are by this judgment ordered to pay.