Anil K. Sen, J.
1. This is a revisional application arising out of a proceeding under Section 90 of the Code of Civil Procedure which was registered as Title Suit No. 146 of 1980 of the Second Court of the learned Subordinate Judge, Alipore and is directed against the order dated February 17, 1981 passed by the learned Subordinate Judge disposing of the said proceeding.
2. Smt. Nilima Ghosh and her daughter-in-law Smt. Ira Ghosh are the petitioners before us in this revisional application. By a deed of trust dated Aug. 31, 1967 Smt. Nilima Ghosh settled premises No. 6, panditiya Terrace. Calcutta in trust making herself the sole trustee. Under the said trust the settlor retained unto herself a life interest in the said property with a further provision that on her death the property would vest absolutely in her daughter-in-law, Ira Ghosh or her heirs and legal representatives as the case may be. The trust contained no express provision authorising the trustee to sell the property of any contingency.
3. According to the settlor Smt. Nilima Ghosh, it being inconvenient for her to reside any further in the said premise, and it being uneconomic to hold the property any further by letting it out to tenants, she entered into an agreement for sale of the property with the opposite party, Sri Prakriti Bhusan Mitter on December 14, 1979. In order to effect the sale both the beneficiaries, namely the settlor herself and her daughter-in-law by an instrument dated August 19. 1980 agreed to the proposed sale of the property. Since, however, the opposite party raised a dispute as to whether in the absence of any express authority the trustee can effect sale of the property, the two petitioners and the opposite party by an agreement dated Aug. 21, 1980 agreed to refer the dispute to the court for its opinion on the point as to whether in the facts and circumstances the trustee can lawfully sell the property to the opposite party. Thus, the parties initiated the aforesaid proceeding under Section 90 of the Code as a special case which was heard and disposed of as a suit in terms of the rules of Order 36 of the Code. By the order impugned the learned Judge however refused to give his opinion on the disputed question so raised or answer the same though referred to him as a special case under Section 90. According to the learned Judge, the question referred to Mm for his opinion being a question relating to the management and administration of the trust property to be answered on interpretation of the trust deed, could be answered only by the principal civil court of the original jurisdiction of the district in view of the provisions of the Indian Trusts Act and as such his court is not the proper forum for obtaining the necessary opinion, in challenging the said order of the learned Subordinate Judge in this revisional application the petitioners have challenged the correct-ness of the view so taken by the learned Subordinate Judge.
4. Mr. Banerjee appearing in support of the revisional application has contended that the parties to the proceeding having entered into a bona fide agreement has referred certain questions to the court for its opinion in terms of Section 90 of the Code of Civil Procedure and a special case having been initiated on such an agreement it was incumbent for the court to give its opinion and that the learned Subordinate Judge went wrong in thinking that his court is not the proper forum. According to Mr. Banerjee, once the terms of Section 90 of the Code of Civil Procedure are complied with, the parties making out a special case are entitled to have the opinion of the court on the questions referred to court according to such terms. The learned Subordinate Judge being the court of competent jurisdiction for the purpose of entertaining the special case under Order 36, could, not have held that this court is not the proper forum. The opposite party has entered appearance and the learned Advocate appearing for him also supports the contention of Mr. Banerjee. It has been contended on his behalf that the scope of a proceeding under Section 90 and that under Section 34 of the Indian Trusts Act not being the same it could not have been held that Section 34 constitutes a bar to the adjudication prayed for in the special case.
5. Though none of the parties is supporting the order impugned before us on a careful consideration of the legal position we are, however, of the opinion that the learned Subordinate Judge is well justified in refusing to answer the question referred to him as a special case under Section 90 of the Code. In our view, the point of relevance is not as to whether such a question could have been competently referred to the learned Subordinate Judge for his opinion or not but whether the learned Subordinate Judge should give his opinion even if the question was competently referred to him. We agree with the learned Subordinate Judge that he should not give his opinion in a case like the present one. It is only in that context that he rightly held that his court is not the proper forum for obtaining the opinion sought for in this special case. Under Order 36, Rule 5 of the Codeeven if there had been a lawful agreement between the parties having bona fide interest in the question agreed to be referred to the court, the court is not bound to give its opinion unless it is further satisfied that 'the same is fit to be decided'. In adjudging whether it would be fit for the court to decide the case or not different considerations may come up before the court which are required to be taken note of in adjudging that point. One of such considerations is as to whether in deciding the case the court would be intruding upon a field reserved for some other forum and once it is found that it would be so, than it is certainly open to the court to refuse to decide the case or give its opinion irrespective of the question whether it had the jurisdiction to do so or not. On the facts of the present case we agree with the learned Subordinate Judge that the question referred to him for opinion is one relating to the management and administration of the trust property. Under the provisions of Section 34 of the Indian Trusts Act such a question relating to the management and administration of trust property should be referred to the principal civil court of original jurisdiction for its opinion. Section 34 may have conferred wider powers on the court to authorise sale of a trust property by the trustee even if the trustee is not expressly authorised to do so by the deed where such a sale becomes a necessity for preservation or development of the Estate but that makes it all the more incumbent for the parties to approach that court because that court is not only competent to give the opinion now fought for but also is only competent court to help the parties in solving their real problem viz., to effect sale of the trust property. Therefore, Section 34 not only covers the field but, in our opinion, provides the better forum for the relief the parties are really intending to have. That court is admittedly a court superior to the court of the learned Subordinate Judge. In view of the fact that the Indian Trusts Act has provided fore special forum for obtaining the opinion on such a question, the learned Judge was right in refusing to give his opinion on such a question and thus intrude upon a field reserved for the other forum. This view is well supported by a Bench decision in the caseof Trustees of the Port of Bombay v. Municipal Corporation of Bombay, AIR 1930 Bom 232.
6. Such being the position, we must uphold the order and dismiss the present revisional application and we direct accordingly.
7. There will be no order as to costs.
B.C. Chakrabarti, J.
8. I agree.