1. It is to be regretted that this matter has taken the present shape. It appears that one Sureswar appointed his father Manmatha trustee under a deed of settlement dated the 15th March, 1920, with power to appoint hi3 successor. On the 3rd July, 1922, before his death Manmatha appointed the petitioner (his brother)' and the opposite party Promilabala (his daughter-in-law) as his successors in the office of the trustee. Till the 11th September, 1924, the petitioner acted as a co-trustee; and it appears from the various papers that have been placed before us that he had the active management of the trust property in his own hands. On that day he executed a document by which he retired from the trusteeship and appointed Kalidas (another brother's son) as trustee in his stead. On the 29th November, 1924, Kalidas made an application under Section 72 of the Indian Trusts Act of 1882 for being discharged from the trusteeship. His case is that he was not aware of the real state of the trust properties at the time he accepted the trusteeship and is not willing to act further as the properties were heavily involved. This application has been registered in the Court below as Miscellaneous Case No. 82 of 1924. Promilabala is opposing this application and the matter is still pending before the learned District Judge. It appears that in the meantime in connection with this suit she made an application purporting to be under Sections 34 and 49 of the Indian Trusts Act in which she alleged that there was a case, pending against the trust property situated in the District of Cuttack and that she had not sufficient funds in her hands to defend it. She further alleged that Nwendra (the petitioner) was the manager of the trust property and asked for a direction upon him or upon Kalidas whoever might be the trustee, for payment of money to conduct the litigation in the Cuttack Court. The learned Judge on the 13th February, 1926, passed the following order thereupon: 'That Narendra Nath Dey Sircar be directed to pay Rs. 500 out of the trust fund to Promilabala Dassi for conducting the litigation in the Cuttack Court within 7 days, in case Narendra Nath does not conduct the defence of the suit himself. Should he fail to do so, for the present, Promilabala is directed either to advance money herself or to raise a loan either without security or by hypothecating any trust property that she would consider proper.'
2. Against this order the present Rule has been obtained and it is argued on behalf of the petitioner that the order is without jurisdiction. We are of opinion that this contention is partially correct. The learned Judge has treated the application by the opposite party as an application in connection with the Miscellaneous Case No. 82 of 1924. In this he is clearly wrong. An application under Section 34 is an independent procedure Analogous to originating summons for direction or advice of the Court in matters relating to the trust. The procedure followed by the learned Judge may be irregular but it does not affect the merits of the case. But the real ground of objection against this order is that he was not competent under this section to pass an order like the one he has passed. It seems to us that the order so far as it directs Narendra to pay Rs. 500 is an order which could not be passed under that section. That section relates only to matters in which the trustee in order to protect himself asks the advice or opinion of the Court on any question respecting the management or administration of the trust property. This portion of the order can neither De defended under Section 49 which deals with questions which are within the discretion of the trustee and where that discretion has not been reasonably exercised. But we think that the second portion of the order, namely, that the opposite party (Promilabala) may advance money herself or raise loan on the security of the trust property or otherwise is an order which the learned Judge is competent to pass under Section 34 of the Indian Trusts Act. We, accordingly, set aside that portion of the order which directs the petitioner, Narendra, to pay Rs. 500 out of the trust funds and maintain the latter portion of the order. It is, however, suggested to us that there might be some difficulty in Promilabala's raising the money as under Section 48 of the Indian Trusts Act all the trustees must join in such matters. As it has not yet been decided who the other trustee is there is no harm in allowing Promilabala, the admitted trustee, to raise the money for the protection of the trust property. The Rule is disposed of in these terms.
3. We express the hope that the learned Judge will find it convenient to dispose of the application made by Kalidas under Section 72 of the Indian Trusts Act as early as possible in the interest of the trust.
4. In the circumstances of the case we make no order as to costs.
5. Let the record be sent down as soon as possible.