In Re: The Indian Trustees And … vs Unknown on 14 July, 1883

Bombay High Court
In Re: The Indian Trustees And … vs Unknown on 14 July, 1883
Equivalent citations: (1883) ILR 7 Bom 381
Author: Latham
Bench: Latham


Latham, J.

1. The point is one of considerable importance’, and I will take time to consider it

2. I have considered the petition; and, looking to the nature of the point at issue, I think that it would not be right or proper for me, on a proceeding of this character, to give any opinion on it. I think 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; more especially as, if the opinion were given, there is nothing in that section, or elsewhere in the Act, making it obligatory on, the Administrator General to act in accordance with it, or on the administrator of the domicile to accept it. The questions arising in the administration contemplated by Section 43 are not questions of the character of the one on which I am asked to express my opinion here. That is clear from the English authorities on the almost identical provisions contained in Section 30 of the English Act 22 and 23 Vict., c. 35–an Act to further amend the Law of Real Property and Relieve Trustees Kindersley, V.C., in In re Lorenz’s Settlement I Dr. & Sm., at p. 404 says in regard to that section: “My understanding of that section of the Act is, that it was intended by the Legislature that the Court should have the power to advise a trustee or executor as to the management and administration of the trust property in the manner, which will be most for the advantage of the parties ‘beneficially interested, but not to decide any question affecting the rights of those parties inter se; otherwise the effect would be that a deed or will involving the difficult questions, and relating to property to an amount however large, might be construed, and most important rights of parties decided, by a single Judge, without any power of appeal whatever. This, I am satisfied; the Legislature never intended.”

3. In In re Mary Hooper 29 Beav. at p. 657 Sir J. Romilly speaking of the same section, remarked “that the object of this clause was to assist trustees in the execution of the trusts as to little matters of discretion” and “that, when a question arose as to the effect of a limitation in an instrument, it ought, for the assistance of the Court, to be argued by the opposite parties.” 1 may refer also to In re Mockett’s Will Johnson, 629.

4. From the above authorities it is clear that the Court should not deal, under the power here given, with a point of law, like the present one, on which So much may depend, and which is in itself so full of difficulty.

5. The point itself, it is plain, is one of considerable difficulty; Preston v. Melville 8 C1. & Fin. 1 did not decide the point, but left it open; In Eames v. Hacon L.R.16 ch. D. 407 in the Court below Fry J., would have decided it authoritatively; the Court of Appeal, however, affirmed his judgment on totally different grounds, and so left open the point that now arises. Story’s Conflict of Laws, 513, shows that some of the American Courts have taken the view that the net balance of the estate should be remitted to the administrator of the domicile, but that there is much to be said on the opposite side. Dicey on Domicile) p. 315, seems, to leave; the point, quite unsettled, and does not refer to any Cases. I must refuse, therefore, to give any opinion on the question proposed. The point might well be brought before the; Court by a special case; it is a pure point of law.

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