Sir John Edge, C.J, Tyrrell, Knox, Blair and Banerji, JJ.:— One Ganga Ram was convicted of the offence punishable under s. 400 of the Indian Penal Code, and for that offence was sentenced to transportation for life. From that conviction and sentence he appealed to this Court. By the rules of this Court made under s. 13 of the 24 and 25 Vic, Cap. 104, such an appeal can only be heard by a Bench consisting of at least two Judges. Ganga Ram's appeal came on in usual course to be heard by a Bench of two Judges. That Bench happened to be constituted of Mr. Justice Knox and Mr. Justice Burkitt. When the appeal was called on for hearing, Mr. Alston, who appeared for Ganga Ram in support of the appeal, raised an objection to the jurisdiction of the Bench to hear the appeal, contending that Mr. Justice Burkitt had not been legally appointed to act as a Judge of this Court. As Mr. Alston's contention raised a question of the utmost gravity, the question as [141] to whether or not Mr. Justice Burkitt had been legally appointed to act as a Judge of this Court was properly and of necessity referred to a Full Bench for decision. The reference to the Full Bench was heard by all the Judges of the Court excepting Mr. Justice Burkitt. On the hearing of the reference, the Crown was represented by Mr. Strachey, Public Prosecutor, and Ganga Ram by Mr. Alston. We took time to consider our judgment.

Before referring do the arguments on one side or the other and expressing the conclusions at which we have arrived, it is necessary to state certain facts.

This High Court of Judicature for the North-Western Provinces of, India was erected and established by Her Majesty's Letters Patent issued on the 17th day of March in the Twenty-ninth year of Her Reign.

Those Letters Patent were issued by the authority in that behalf conferred by the statute 24 and 25 Vic., Cap. 104, and have not been modified by any subsequent Letters Patent, or, so far as the question before us is concerned, by any legislative enactment. Section 2 of the Letters Patent is as follows:—

“2. And we do hereby appoint and ordain that the said High Court of Judicature for the North-Western Provinces shall, until further or other provision shall be made by us or Our Heirs and Successors in that behalf, in accordance with the said recited Act, consist of a Chief Justice and five Judges, the first Chief Justice being Walter Morgan Esquire and the five Judges, being Alexander Ross Esquire, William Edwards Esquire, William Roberts Esquire, Francis Boyle Pearson Esquire, and Charles Arthur Turner Esquire, being respectively qualified as in the said Act is declared.”

Mr. Justice Edwards retired in March 1867, Mr. Justice Roberts died in January 1870. Mr. Justice Ross retired in April 1871. Mr. R. Spankie was appointed to act as a Judge of the Court on the retirement of Mr. Justice Edwards in 1867 and subsequently received [142] his Patent appointing him to the office of a Judge of the Court. Mr. Justice Pearson proceeded on leave in December 1869, and was absent on leave until July 1871. Mr. G.D Turnbull was appointed to act as a Judge of the Court in May 1870, and continued to act as a Judge of the Court until July 1871, when Mr. Justice Pearson returned from leave. Mr. Justice Turner proceeded on leave on the 11th of April 1873, and returned from leave on the 25th of October 1873. Mr. W. Jardine was appointed to act as a Judge of the Court on the 12th of April 1873, and continued to act as a Judge of the Court until his death on the 16th of August 1872. On the 28th of August 1873, Mr. G.D Turnbull was again appointed to act as a Judge of the Court and continued to act until Mr. Justice Turner returned from leave on the 25th of October 1873. On the 3rd of April 1874, Mr. Justice Spankie proceeded on leave, and was absent on leave until the 8th of December 1874, when be returned to the Court. Mr. R.C Oldfield was on the 4th of April 1874 appointed to act as a Judge of the Court, and continued to act as such until he received his Patent in 1881 appointing him to the office of Judge of the Court. Mr. M. Brodhurst was on the 27th of April 1874 appointed to act as a Judge of the Court, and continued to act as such until the 7th of December 1874. It may be presumed from the above facts and dates that Mr. Brodhurst was appointed to act during the absence on leave of Mr. Justice Spankie. Whether Mr. Oldfield's acting appointment was intended to be consequent on the vacancy in the office of a Judge of the Court occasioned by the death of Mr. Justice Roberts in January 1870, or consequent on the vacancy in the office of a Judge of the Court occasioned by the retirement of Mr. Justice Ross in April 1871, does not appear. The next appointment by Patent to the office of a Judge of the Court after that of Mr. Justice Spankie was that of Mr. Justice Straight in 1879, upon the appointment of Mr. Justice Turner to be Chief Justice of the High Court at Madras. Mr. Justice Pearson retired on the 30th of March 1881. Mr. Justice Spankie retired on the 31st of May 1881, and subsequently in 1881 Mr. E.C Oldfield and Mr. M. Brodhurst received their Patents appointing them respectively to the office of a Judge of the Court. Mr. W. Tyrrell received [143] his Patent appointing him to the office of a Judge of the Court in 1882. Mr. Justice Oldfield retired in March 1887; and in March or April 1887 Mr. Syed Mahmood was appointed by Patent to the office of a Judge of the Court. Mr. Justice Brodhurst died in October 1890. Mr. G.B Knox was appointed by Patent to the office of a Judge of the Court in December 1890. It was assumed that Mr. Knox was appointed to the office of a Judge to fill the vacancy in the office occasioned by the death of Mr. Justice Brodhurst. In April 1892 Mr. Justice Straight retired, and on his retirement Mr. H.F Blair took his seat as a Judge of the Court, having been appointed by Patent in 1892 as a barrister to that office in anticipation of the retirement of Mr. Justice Straight. Mr. Justice Turner and Mr. Justice Straight were Judges who had been appointed on the qualification as barristers. In December 1893 Mr. Justice Mahmood retired. On the retirement of Mr. Justice Mahmood Mr. P.C Banerji was appointed to act as a Judge of the Court in anticipation of the receipt of his Patent appointing him to the office of a Judge of the Court.

In the Government Gazette, North-Western Provinces and Oudh, of the 29th of October 1892 appeared the following notification:—

Appointment Department.

Appointments.

The 26th October, 1892,

“In virtue of the authority vested in him by the Act of Parliament 24 and 25 Vic, Cap. 104, clauses 7 and 16, His Honor the Lieutenant-Governor and Chief Commissioner is pleased to appoint Mr. William Robert Burkitt, C.S, Barrister-at-law, Judicial Commissioner, Oudh, to be the 5th Puisne Judge in the High Court of Judicature, North-Western Provinces; the appointment of a fifth Puisne Judge having been sanctioned temporarily for one year by Her Majesty's Secretary of State for India, with effect from the date on which the said Court re-opens after the annual vacation.”

[144] In the Government Gazette, North-Western Provinces and Oudh of the 7th of January 1893 appeared the following notification:—

Erratum.

The 5th January, 1893.

“In Notification No. 4912, dated 26th October, 1892, appointing Mr. W.R Burkitt to be the fifth Pusine Judge in the High Court of Judicature, North-Western Provinces, for the words ‘to be’ read ‘to officiate as.’”

In the Government Gazette, North-Western Provinces and Oudh of the 18th November, 1893 appeared the following notification:—

Appointment Department.

The 15th November, 1893.

“In virtue of the authority vested in him by the Act of Parliament 24 and 25 Vic, Cip, 104, clauses 7 and 16, His Honor the Lieutenant-Governor and Chief Commissioner is pleased to appoint Mr. William Robert Burkitt, I.C.S, Barrister-at-Law, to continuo to officiate as a Puisne Judge in the High Court of Judicature, North-Western Provinces, until further orders.”

The notifications which we have set out are the only sources of information which the Public Prosecutor on behalf of the Crown has placed before the Court or which the Court has in its possession as to the manner in which and the authority under which Mr. Justice Burkitt was appointed. From the 1st April 1892, when Mr. Justice Blair as a Barrister Judge succeeded Mr. Justice Straight, and until the 15th of November 1892, when Mr. Burkitt took his seat as a Judge acting under the notification of the 26th of October 1892, the Court consisted of a Chief Justice and Mr. Justice Tyrrell, Mr. Justice Mahmood, Mr. Justice Knox and Mr. Justice Blair, [145] all of whom had been appointed by Patent. On the 25th of November 1892 Mr. Justice Mahmood went on leave and Mr. R.S Aikman was appointed to act during the absence of Mr. Justice Mahmood, and acted as a Judge of the Court until the appointment of Mr. Justice Banerji in December 1893. Treating for present purposes Mr. Justice Burkitt as a legally appointed acting Judge of the Court, the Court consists to-day of the Chief Justice and Mr. Justice Tyrrell, Mr. Justice Knox, Mr. Justice Blair, Mr. Justice Banerji and, as an acting Judge Mr. Justice Burkitt.

Mr. Alston on behalf of Ganga Ram contended that by reason of s. 11 of the 24 and 25 Vic, Cap. 104, of the 13 Geo, III., Cap, 63, of s. 3 of the Charter dated the 26th of March 1774, establishing the Supreme Court of Judicature at Fort William in Bengal, of s. 6 of the Charter dated the 26th December, 1800, establishing the Supreme Court of Judicature at Madras, and of s. 7, of the Charter dated the 8th of December 1823, establishing the Supreme Court of Judicature at Bombay, no person could be legally appointed to the office of a Judge of a High Court established in pursuance of the 24 and 25 Vic, Cap. 104, except by Her Majesty's Letters Patent. Mr. Alston further contended that the power to appoint a person to act as a Judge of this High Court was that conferred by ss. 7 and 16 of the 24 and 25 Vic, Cap. 104, and that Mr. Justice Burkitt had not been appointed to act “upon the happening of a vacancy in the office of a Judge of this Court or during the absence of any such Judge or on the appointment of any such Judge to act as Chief Justice” within the true intent and meaning of s. 7 of the 24 and 25 Vic, Cap. 104, and consequently that Mr. Justice Burkitt, not having been duly appointed under ss. 7 and 16 of the 24 and 25 Vic, Cap. 104, to act as a Judge of the Court, and not having been appointed by Her Majesty's Letters Patent to the office of a Judge of the Court, his appointment was ultra vires and illegal.

On the other side, Mr. Strachey for the Crown contended that Mr. Justice Burkitt had been legally appointed “upon the happening of a vacancy in the office of a Judge of the Court within [146] the meaning of s. 7 of the 24 and 25 Vic, Cap. 104, and if that section read with s. 16 of the same statute did not authorize Mr. Burkitt's appointment we should presume from the notification in the Government Gazette, North-Western Provinces and Oudh and from the fact that Mr. Justice Burkitt had acted as a Judge of the Court since November 1892, that he had been lawfully appointed. Mr. Strachey relied on the fact that it is not specifically enacted in the 24 and 25 Vic, Cap. 104, that appointments other than those under s. 7 of persons to be or to act as Judges of a High Court shall be by Her Majesty's Letters Patent, and upon the fact that Mr. Justice Oldfield had for many years prior to the grant of his Patent acted as a Judge of this Court. Mr. Strachey overlooked the inference to be drawn from the concluding words of s. 5 of the Act. Mr. Strachey correctly, as it appears to us, admitted that the words in s. 7 of the 24 and 25 Vic, Cap. 104, “upon the happening of a vacancy” when used in relation to a vacancy in the office of a Judge other than a Chief Justice, must be construed as having the same meaning as they have when used in the same section in relation to a vacancy in the office of a Chief Justice, and that the inference to be drawn from s. 14 of the 24 and 25 Vic, Cap. 104, is that, “upon the happening of a vacancy in the office of Chief Justice,” a Chief Justice must, as soon as reasonably may be, be appointed by Her Majesty, or that one of the Judges of the same Court must, as soon as reasonably may be, be appointed under s. 7 to act as Chief Justice. But be contended that, although an obligation to appoint a Chief Justice or to appoint one of the Judges of the Court to act as Chief Justice arose at once “upon the happening of a vacancy in the office of Chief Justice”—no similar obligation arose “on the happening of a vacancy in the office of any other Judge of any such High Court,” and that all that arose upon the happening of such latter vacancy was a power to the Governor-General in Council, the Governor in Council or the Lieutenant-Governor in these Provinces to appoint a qualified person to act as a Judge of the Court, and that such power could be exercised at any time, even after the [147] lapse of fifty years from “the happening of the vacancy:” and further, that such power could be exercised repeatedly and in favour of the same or different persons so long as the vacant office was not filled up by an appointment to it by Her Majesty. In order to ascertain whether or not Mr. Strachey's argument based on s. 7 of the 24 and 25 Vic, Cap. 104, is correct, it is necessary to examine that section with care.

Section 7 of the 24 and 25 Vic, Cap. 104, is as follows:—

7. “Upon the happening of a vacancy in the office of Chief Justice, and during any absence of a Chief Justice, the Governor-General in Council or Governor in Council, as the case may be, shall appoint one of the Judges of the same High Court to perform the duties of Chief Justice of the said Court until some person has been appointed by Her Majesty to the office of Chief Justice of the same Court and has entered on the discharge of the duties of such office, or until the Chief Justice has returned from such absence; and upon the happening of a vacancy in the office of any other Judge of any such High Court, and during any absence of any such Judge, or on the appointment of any such Judge to act as Chief Justice, it shall be lawful for the Governor-General in Council or Governor in Council, as the case may be, to appoint a person with such qualifications as are required in persons to be appointed to the High Court to act as a Judge of the said High Court, and the person so appointed shall be authorized to sit and to perform the duties of a Judge of the said Court until some person has been appointed by Her Majesty to the office of Judge of the same Court and has entered on the discharge of the duties of such office, or until the absent Judge has returned from such absence, or until the Governor-General in Council or Governor in Council as aforesaid shall see cause to cancel the appointment of such acting Judge.”

In construing s. 7 of the 24 and 25 Vic., Chap. 104, it is advisable to bear in wind what a great lawyer has said about the construction of statutes. Lord Blackburn in The River Wear [148] Commissioners v. William Adamson in reference to the principles of construction of statutes, said:—

“My Lords, it is of great importance that those principles should be ascertained, and I shall therefore state as precisely as I can what I understand from the decided cases to be the principles on which the Courts of Law act in construing instruments in writing, and a statute is an instrument in writing. In all cases the object is to see what is the intention expressed by the words used. But from the imperfection of language it is impossible to know what that intention is without inquiring further and seeing what the circumstances were with reference to which the words were used and what was the object appearing from those circumstances which the person using them had in view, for the meaning of words varies according to the circumstances with respect to which they were used.”

In order to ascertain what the intention of the Imperial Parliament in enacting s. 7 of the 24 and 25 Vic, Cap. 104, was, we must remember that at the time when that statute was passed there was no telegraphic communication between England and India, and that communication by mail, allowing for a despatch and reply and the time required for the issue of a Patent, would probably have occupied a period of three months or more. It is most probable that it seemed reasonable to Parliament, having regard to the interasts of the public, that a High Court, which required to be at its full strength in order to enable it to cope with its work, should, on the occurrence of a vacancy in the office of one of its Judges, be provided with temporary assistance as soon as possible. The conditions of climate under which Judges work in the plains in India, particularly during the hot weather, are essentially different from those under which Judges work in England, and Judges in India cannot carry their work during the hot weather to the temperate climate of the hills. Family and other circumstances at times necessitate leave of absence to Europe. These conditions were not overlooked by Parliament, and we find provision made in the section under [149] consideration for efficiently maintaining the working strength of the High Courts under such circumstances. It must have been the object of Parliament that High Courts, the expenses of maintaining which are to a great extent, if not entirely, borne by litigants, should be maintained at a strength adequate to deal with the judicial and administrative work coming before them. It must also be kept in mind that Her Majesty could always appoint a Judge to a vacancy in a High Court, and that when the pressure of work in a High Court did not require on the happening of a vacancy in the office of a Judge of the Court that the vacancy should be immediately filled up, there would be ample time to communicate with the Secretary of State for India in order that Her Majesty might appoint a Judge to the vacancy when the work of the Court might require that the Court should be at its full working strength. It is also to be kept in mind that it is in the interests of the public that litigation should be speedily disposed of, and that if possible arrears should not be allowed to accumulate in Courts of Justice. In too many cases justice delayed is justice denied and both are treated alike in the Magna Charta:—“Nnlli vendemus, nulli negabimus, nnlli differemus rectum ant justiliam.”

When we bear these facts and considerations in mind, the object which the Imperial Parliament had in view in enacting s. 7 of the 24 and 25 Vic, Cap. 104, is plain, and in our opinion such object was plainly expressed in the section. Such object in our opinion was to enable the Governor-General in Council, the Governor in Council, and, by application of s. 16, the Lieutenant-Governor, in the case of these Provinces, upon the happening of a vacancy in the office of a Judge, to make temporary provision for keeping the Court up to its necessary working strength by the appointment of a qualified person to act as a Judge until one or other of the events specified at the end of s. 7 should happen. It was also in our opinion the intention of the Legislature in providing for the making of acting appointments in the High Courts that the person appointed to act as a Judge should do the work which the Judge who had died, or had retired or was absent on leave or was acting [150] as Chief Justice, would otherwise, and if he had been present, have done, and thus to avoid the work of the Court getting into arrear. No doubt the Governor-General in Council or Governor in Council or the Lieutenant-Governor of these Provinces is not bound to exercise the power conferred by s. 7 of the 24 and 25 Vic, Cap. 104, as was held in Lal Singh v. Ghansham Singh. Equally without doubt that power should be legally exercised when the necessity for exercising it arises. But that is not the question here.

The object and intention of the Imperial Parliament could not, in our opinion, have been to place in the hands of the Governor-General in Council or Governor in Council or the Lieutenant-Governor of these Provinces a power which would, subject to Her Majesty's being moved through the Secretary of State for India to appoint, enable the Executive in India by making acting appointments on the happening of vacancies, and by making successive appointments on the happening of the same vacancy, in time to constitute a High Court of one barrister Judge acting as Chief Justice and of acting Judges, that is, of persons who could at the will of the Executive be removed from their acting appointments in the High Court, and who could in the case of acting Civilian Judges be gazetted out of the Court to perform the duties and enjoy the emoluments of Assistant Magistrates. It is impossible to believe that a High Court established under the 24 and 25 Vic, Cap. 104, ever would be so constituted, but, if Mr. Strachey's construction of s. 7 is correct, a High Court might be so constituted by the Executive in India. Any such intention on the party of the Imperial Parliament when passing the 24 and 25 Vic, Cap. 104, as has been contended by Mr. Strachey was the intention of Parliament, would be contrary to the policy pursued by Parliament since the Act of Settlement became law, a policy which has secured to the subjects in England protection against unlawful or unauthorized acts of the Executive. This is what Hallam (The Constitutional History of England, Vol. 3, page 192, 7th edition) says in this connection as to the state of things prior to the Act of Settlement:—

[151] “It had been the practice of the Stuarts, especially in the last years of their dynasty, to dismiss Judges, without seeking any other pretence, who showed any disposition to thwart Government in political prosecutions. The general behaviour of the Bench had covered it with infamy. Though the real security for an honest Court of Justice must be found in their responsibility to Parliament and to public opinion, it was evident that their tenure in office must, in the first place, cease to be precarious, and their integrity rescued from the severe trial of forfeiting the emoluments upon which they subsisted.” * * *

It is impossible to boliove that any person who would be appointed to act as a Judge in a High Court in India would subordinate his conscience to the requirements of the Executive, or that the Executive in India over would attempt to influence the Judges; but it is equally impossible to boliove that Parliament should over have intended that the risk of such a subordination of his conscience on the part of a Judge or of any attempt on the part of the Executive to influence the Judges should be rendered a possibility. Wo do not believe, having regard to existing law, that Parliament has take, or even intended to take, any step in that direction. That the risk of the Executive in India desiring to limit the judicial power of the Courts in India in matters touching the Executive is not merely hypothetical, may be inferred from a proposal made many years ago that the Courts in India should by legislative enactment, be prohibited from questioning the legality of acts of the Governor-General in Council. That the risk of the Executive in India seeking to got the High Courts in India more under its control is not merely hypothetical, may be inferred from the introduction of a Bill into Parliament, by one section of which, if it had been passed, an order in Council might have been made for the purpose of regulating the High Courts without Parliament being consulted. Under another section of that Bill a local authority could have been invested with the discretionary power especially reserved to the Chief Justice of the Court by s. 14 of the 24 and 25 Vic, Cap. 104, in other words, [152] the Governor-General of India in Council might under that section have conferred upon a local authority a power which might be exercised by the local authority so as to select and nominate from amongst the Judges of a High Court such Judge or Judges as it deemed preferable for the hearing and determining of particular cases in which the local authority might be interested. While we point out that this would be a possible effect, wo do not suggest or think that such was the object of the framers of the section. The intention of Parliament in framing the Acts under which the Supreme Courts in India were constituted and in passing the 24 and 25 Vic, Cap. 104, must have been to establish judicial tribunals which would command the respect of the people of this country, and which would not be liable to any possibility or suggestion of influence on the part of the Executive.

But in our opinion it is not necessary to seek for the object and intention of the Parliament in enacting s. 7 by the consideration of matters outside the section itself, as it appears to us the wording of the section is plain and unambiguous. The important words are “upon the happening of a vacancy in the office of any other Judge.” The most cursory consideration of the section shows clearly that the Judge there referred to must be a Judge appointed to his office by Her Majesty and not a person appointed under the section to act as a Judge. The Chief Justice of a High Court is a Judge of the court. The Judge who may be appointed to perform the duties of the Chief Justice in one of the events specified at the beginning of the section must be “one of the Judges of the same High Court.” Until we reach the words “to appoint a person with such qualifications as are required in persons to be appointed to the High Court to act as a Judge of the said Court, &c.,” we find no allusion to any Judge other than a Judge holding the office of a Judge of the High Court. Further, that point is made certain by s. 4 of the 24 and 25 Vic, Cap. 104, in which it is enacted that “all the Judges of the High Courts established under this Act shall hold their offices during Her Blajesty's pleasure, provided that it shall be lawful for any Judge of a High Court to resign such office of [153] Judge to the Governor-General in Council or Governor in Council of the Presidency in which such High Court is established. “A person appointed under s. 7 to act as a Judge does not hold the office of a Judge nor does he hold the office of a Judge during Her Majesty's pleasure. He is appointed” to act as a Judge of the said High Court and the person so appointed shall be authorized to sit and perform the duties of a Judge of the said Court until some person has been appointed by Her Majesty to the office of Judge of the same Court and has entered upon the discharge of the duties of such office, or until the absent Judge has returned from such absence, or until the Governor-General in Council or Governor in Council as aforesaid shall see cause to cancel the appointment of such acting Judge.” These last quoted words are in our opinion conclusive that our reading of the antecedent words “upon the happening of a vacancy” is the only legitimate reading of those words as they occur in the section.

Mr. Strachey admitted that if the wording of that part of the section was “it shall be lawful for the Governor-General in Council or Governor in Council, as the case may be, to appoint on the happening of a vacancy in the office of any other Judge, &c.,” he could not contend that the appointment could be legally made under the section unless it were made as soon as practicable after the vacancy occurred. We are unable to see any difference in meaning, intention or effect between such a wording and the actual words of the section. If the words “it shall be lawful” confer both a power and a discretion, it would seem certain that such power and such discretion were intended, as it is not otherwise expressed, to be exercised upon the specified occasion and contingency and not to be reserved indefinitely or used repeatedly or intermittently. The word “upon” is a word the meaning of which has been considered by the Courts in England. It appears from The Queen v. Humphrey and from The Queen v. Arkwright(2) that “the words ‘on’ and ‘upon’ may either mean before the act done to which it relates, or simultaneously with the act done, or after the act [154] done, according as reason and good sense require, with reference to the context and subject-matter of the enactment.” [Per Lord Denman, C.J, in The Queen v. Arkwright.) In Folkard v. The Metropolitan Railway Co.(3), the question depended upon the meaning of the words “upon the trial of any issue” in s. 10 of the Mayor's Court Procedure Act (20 and 21 Vic, Cap. 157), by which section it is provided that if the Judge “upon the trial of any issue” shall grant leave to move in any of the Superior Courts to enter a verdict or non-suit or for a new trial, the party to whom such leave is granted may move accordingly in such court within the time within which motions of the like kind may be made in such court. There the case was tried on a Thursday, and on the following Monday the Judge granted leave to move, and it was held by Bovill, C.J and Keating and Grove, JJ., Brett, J., dissenting, that the leave could not be considered as given “upon the trial of the issue” in accordance with the Act. In that case the word “upon” was construed as meaning within a reasonable time after the trial. The majority of the court considered that two days after the trial (whilst Brett, J., considered that four days after the trial) would be such a reasonable time.

In re Leigh, Leigh v. Leigh(4) related to an order made by Kay, J., that Mr. Leigh, who, whilst he was a minor, had married, should execute a settlement. The marriage took place in October, 1885, the order was made in June 1886, and the settlement was executed in December 1886. Cotton, L.J, in delivering his judgment, said, in reference to the Infants' Settlement Act:— “Because we decide the present appeal on another point, it must not be considered that we adopt or favour the suggestion that the settlement executed was a settlement ‘upon the marriage’ within the Act. The words of the Act are ‘upon or in contemplation of marriage.’ In In re Sampson and Wall the majority of the court differed from me in construing those words as meaning—‘On the occasion of the marriage,’ and in holding that the Act applied to post-nuptial settlements. But I see nothing in these judgments which would [155] appear to favour the conclusion that the settlement in this case can be considered as a settlement made upon the occasion of marriage, when there was this considerable interval between the marriage and the order of the Court.” The decisions upon the construction of the word “upon” are collected in Stroud's Judicial Dictionary at page 841.

There is no decision, so far as we are aware, which would favour the construction contended for by Mr. Strachey that an appointment which “upon the happening of a vacancy” may be made, can lawfully be made years after—in this case more than twenty years after the vacancy has happened, if the vacancy was that occasioned by the retirement of Mr. Justice Ross in 1871, or more than two years after the vacancy had happened, if the vacancy was that occasioned by the death of Mr. Justice Brodhurst in October 1890.

To give the section the construction for which Mr. Strachey has contended, it would be necessary to read the section as if it were worded “upon the happening and during the continuance of a vacancy in the office of any other Judge * * * it shall be lawful for the Governor-General in Council or Governor in Council, as the case may be, from time to time, and at any time, to appoint, &c.

There is nothing in the section to suggest that the appointment authorised by section 7 could be made at any time other than within a reasonable time after the happening of the vacancy in the office of the Judge, or that the power having once been exercised upon the happening of a vacancy in the office of a Judge it could again be exercised in relation to that particular vacancy.

In our opinion the plain and reasonable construction of that part of s. 7 of the 24 and 25 Vic, Cap. 104, on which the question before us turns, is that if the power conferred by the section is to be exercised, it can only be exercised “upon,” that is, within a reasonable time, which would mean a practicable time, after the happening of the vacancy, and could not be held in suspense for several years and then be legally exercised. We are led to the same opinion from the considerations to which we have referred outside the words of the [156] Section. It is imuossible to told that the exercise of the power after the lapse of two or of twenty years from the happening of the vacancy was an exercise of the power within a reasonable or practicable time. We are consequently of opinion, if the appointment of Mr. Justice Burkitt depends for its validity upon ss. 7 and 16 of the 24 and 25 Vic, Cap. 104, that the appointment was ultra vires and illegal. Although the occasion of the question being raised is recent, doubts as to the legality of such an appointment have been long entertained by the profession here, long before Mr. Justice Burkitt was appointed. Having regard to the gravity of the question and to the responsible duties which a Judge of a High Court has to perform, we are compelled to see, if we can, whether in some other manner Mr. Justice Burkitt may not have been legally appointed to act as a Judge of this Court. The gravity of the question is apparent from the fact that Mr. Justice Burkitt, whilst acting as a Judge of this Court, has been a party, as such Judge, to the confirming of capital sentences, since carried into execution in many cases. He has also been a party, as such Judge, to the making of decrees absolute for dissolution of marriage, involving possibly the legal status of persons as yet unborn.

If Mr. Justice Burkitt was not legally appointed, all his judgments, decrees and orders in Civil and in Criminal cases have been ultra vires and illegal, and in some cases the mischief would be now irreparable, as for instance in capital cases. In other cases it might be possible for Parliament to pass an Act making valid what Mr. Justice Burkitt has done whilst acting as a Judge of this Court. We do not know whether there exists outside of ss. 7 and 16 of the 24 and 25 Vic, Chap. 104, any power under which Mr. Justice Burkitt could have been appointed to act as a Judge of this Court. But there remains the fact of the notifications in the Government Gazette, North-Western Provinces and Oudh, to which we have referred, the fact that apparently the Secretary of State for India in Council sanctioned the appointment of a fifth Puisne Judge as a temporary appointment, and the fact that Mr. Justice Burkitt has in fact since November 1892 acted in all respects as a Judge of this [157] Court. That last fact is, according to a well-known principle of the law of evidence, presumptive proof, until the contrary be shown, of his due appointment to act as a Judge of this Court. Being in ignorance as to whether or not any power existed under which Mr. Justice Burkitt may have been lawfully appointed to act as a Judge of this Court, we hold that the presumption that he was duly appointed, which arises from the fact of his having acted as a Judge of the Court since November 1892, has not been rebutted. This may seem to be a lame and impotent conclusion for a Court of Justice to arrive at concerning the validity of the appointment of one of its acting Judges, but our lack of necessary information as to the appointment, coupled with the circumstances of the case, permits of our arriving at no other. On this expression of opinion Mr. Justice Knox and Mr. Justice Burkitt will probably proceed to hear and dispose of the appeal of Ganga Ram.

[For the interpretation of the word “on” as used in an English Statute, see also Robertson v. Robertson (L.R 8 P.D 94 at p. 96)—ED.]