1. The executor of one Vishnupant Tilak applied to the District Court of Poona for its opinion, under Section 34 of the Indian Trusts Act with regard to the administration of the trust property of the testator.
2. Some of the parties interested as beneficiaries under the, will were present at the time of the application, and those parties appear to have agreed that the Court should, advise the executor under Section 34. of the Trusts Act. An opinion was, accordingly, expressed by the District Judge upon the points preferred for the Court's opinion by the executor, but one at least of the beneficiaries was absent and not consenting.
3. One of the parties who had consented to this method of disposal of the question having found that the opinion of the Court was unfavourable to his interest preferred an appeal against the opinion, and, in the alternative, has asked this Court to entertain his objection as made under the revisional jurisdiction of the Court conferred upon it by Section 622 of Civil Procedure Code, 1882.
4. We think that assuming that an opinion was expressed which fell within the powers-of the Court under Section 34, there is no appeal from such an opinion. We hold, however, that the case presented to the District Judge was not a case falling under Section 34; for the executor who asked for the opinion of the Court had not become a trustee with regard to any of the property in his hands on behalf of the legatees. His difficulty was to decide how much of the property in his hands he should allocate for the benefit of each of the persons named as legatees, and it is in consequence of his inability to decide that that he came to the Court. It is no doubt true that an executor, when he has assented to a legacy and set aside funds to meet it, becomes a trustee, but, as observed by Mr. Justice Kekewhich, in In re Mackay (1906) 1 Ch. 25 : 75 L.T.Ch. 47 : 93 L.T. 694 : 54 W.R. 88 v the exact moment of passage from the character of executor to that of trustee is difficult to define; there is no difficulty in saying that at some point of time the executor, becomes, a trustee and the trusts being sufficiently declared, an express trustee, and then the consequences of that conversion follow,'
5. The applicant in this case had not, in our opinion, become a trustee so as to incur all the liabilities of a trustee. He was still an executor and could as an executor have pleaded limitation against the claims of beneficiaries, and so long as he occupied that position he could not claim the advantages provided for trustees by Section 34 of the Indian Trusts Act. His remedy, if he felt any doubt as to the manner in which he should administer the estate, come to his hands, was to file an administration suit.
6. We hold that the opinion of the District Judge was given without jurisdiction, and we, therefore, direct that the proceedings be set aside.