1. This is a matter arising in chambers under Section 43 of Act XXVIII of 1866. I am asked on the petition of Lakshmibai, widow of the late Vinayakrav Jagannath Shankarshet, for my opinion, advice or direction; on certain questions of management or administration of trust property of which she is trustee. Under that section a trustee may apply, without instituting a suit, to any judge of the High Court for his opinion, advice or direction, and by acting on such opinion the trustee is deemed to have properly discharged his duty. Obviously the Court under such circumstances must act with caution, and only advise in matters when the rights of the parties inter se are not in dispute either in law or in. fact. The section is substantially the same as Section 30 of Lord St. Leonard's Act, (22 & 23 Vic., c. 35.) The decisions under that section show clearly under what circumstances and within what limits the Court will give its advice, and they are collected in Seton on Decrees, Vol. I, p. 492.
2. The questions on which the Court has advised trustees have related strictly to undisputed matters of management, such as questions of advancement, maintenance, change of investment, sale of a house, compromises, taking proceedings. But disputed points of law or fact have never been included. The Court will not, for instance, construe an instrument or make any order affecting the rights of parties-Re Lorenz's Settlement 1 Dr. & Sm. 401. and Re Evans 30 Bea, 232. Nor can affidavits be used (Lewin on Trusts, 618). The Court must advise on the facts stated in the petition alone-Re Muggeridge's Trusts John, 625. Vice-Chancellor Sir W. Page Wood in Re Barringtons Settlement 1 J & H.,. 143 declined to give an express opinion on the details of a scheme to raise money for repairs and permanent improvements, and his language might be adopted ipsissimis verbis in this present matter. 'This is not a case,' he said 'in which I can properly give an opinion, but I have no objection to express my view as to the principle involved. My reason for not giving an express opinion is, that the case goes into details, with which the Court cannot effectually deal, without having a superintending power and being informed by affidavits; and the Court has no means of exercising any controlling power over the subject-matter.' As regards the section in the Indian Act, there is an express decision-In re Samuel Marie Brereton I.L.R., 7 Bom., 381-where the learned Judge follows the English decisions, and says: 'It is no part of the duty of a Judge, under Section 43 of the Trustees' and Mortgagees' Act, to give any opinion on a point on the decision of which may depend questions of right or title.' The limits, therefore, within which I must confine myself have been clearly laid down both at home and in Bombay.
3. Now in this matter I am asked to advise the trustee-(a) whether she has the power to grant the proposed lease to the said Ruttonji Bhikaji Karanjavala; (6) whether the Court will sanction or direct the said lease; and there is a further prayer (c) that the Court will advise in the premises as may seem fit. Now reading the section under which I am asked to act by the light of the above decisions, I must reply to these questions as follows: (a) So far as this question involves a decision on the construction of the will to the effect that Lakshmibai is the trustee of the property, I cannot answer it. But her management seems to have been settled by the decision in the case of Ravji Vinayakrav. Lakshmibai I.L.R., 11 Bom., 381 . She is de facto trustee, and my answer is based on the assumption that she is also trustee dejure. Replying on that basis, I do not think I can say that she has power to grant this particular lease to Ruttonji Bhikaji, because it would be a decision on a question of detail and of fact without sufficient grounds for me to go upon. But I am of opinion, as a matter of general principle, that the trustee of this charitable property could make a lease-a building lease-of the land devoted to the maintenance of the trust. The property hitherto has only been used for agricultural purposes, the return has been small, and the temple and its adjuncts have been in consequence insufficiently maintained. A sufficient income for the trust would be probably obtained if the land were let for building purposes. Such portion of it as is required for the annual fair, which is one of the objects of the trust, should be reserved. The lease should be for the usual period of ninety-nine years, and should contain the usual covenants to build, repair, &c.; due provision should be made for the surrender or removal of the building at the close of the period on such terms as are customary in Bombay. The rental should be such as would make the arrangement beneficial to the trust, considering the market value of the land. I am of opinion that a lease fulfilling these conditions would be within the powers of the trustee.
4. As regards the money which is required to meet the expense of repairs and maintenance, it will evidently have to be raised in some way as a charge, either temporary or permanent, on the trust property. I am of opinion that such a charge, limited to the purposes of necessary repairs and maintenance of all the objects of the trust, would not be beyond the intention of the testator. But I cannot 'discuss any details as to amount or particular work to be done, as under this section of the Act I have no controlling power. I consequently think the sanction of the Court should be obtained to any charge.
5. As regards question (b), I have already stated that I cannot advise as to the particular lease, and I have no power under the section to sanction it. Question (c) I have answered already.
6. As regards costs, I think the petitioner and the Advocate General are entitled to their costs out of the fund, to be taxed as between attorney and client. As regards Mr. Lang's client, he appeared on notice, and he is entitled to his cost of appearance in chambers, but exclusive of his affidavits, which ought not to have been filed. I think Mr. Inverarity's client, who appeared without notice and at his own risk, had no locus standi in such an application as the present one. He must pay his own costs. I certify for counsel.