Lancelot Sanderson, C.J.
1. In this case, in my judgment, we must entertain the appeal. It has been argued by the learned Counsel for the respondent that there was no appeal from the decision of the learned Judge, Mr. Justice Fletcher, upon the question of costs. The reason why we entertain this appeal is that we think that a question of principle is involved. In my judgment, the learned Judge has not applied the correct principle in this case.
2. It is urged by the learned Counsel for the respondent that the mutawallis were not trustees in the ordinary sense of the word. One may be inclined to agree with him to that extent, but I think that the mutawallis, having regard to the terms of the consent decree which included the scheme on which they were acting, were in the nature of trustees. I do not want to decide and do not decide anything about the position of Mutawallis generally, and my remarks are confined to the position of the mutawallis in this case, having regard to their position which was created by the terms of the scheme and the consent decree, I think they were in the nature of trustees. That being so, the learned Judge did not apply the correct principle, when he was considering the question of costs. He does not seem to have dissented from the proposition that the mulwallis were really trustees, but he came to the conclusion that two sets of costs ought not to be allowed out of the estate. He then proceeded to enquire which of the parties had rendered the greatest assistance to the estate in these proceedings, and he came to the conclusion that the trustees rendered the greatest assistance to the estate He allowed them their costs out of the estate and did not allow the mutawallis their costs.
3. In my judgment, having come to the conclusion that the mutawallis were in the nature of trustees, the real principle which ought to have been applied is that upon which the Courts in England act, and on which I am informed this Court is in the habit of acting, namely, that the persons who are in the position of trustees ought to have their costs out of the trust estate in a matter of this kind, where a question of legal proceedings is concerned, unless they have unreasonably carried on or resisted such proceedings. That principle not having been applied by the learned Judge, I think we are bound to entertain the appeal. Then arises the question, applying that principle which I have just enunciated, whether we ought to interfere with the decision at which the learned Judge arrived. Can we say that the mutawallis in the case have unreasonably carried on or resisted the proceedings or any part of the proceedings? In my judgment I do not think that sufficient cause has been shown to deprive the mutawallis of the right to have their costs out of the estate in respect of the proceedings up to the time when the reference was ordered. I, therefore, think that the mutawallis ought to get the costs, as between solicitor and client out of the trust estate, as far as the proceedings are concerned up to the time when the order for reference was made. Now, that was an order made by consent. This appears from what Mr. Das has told the Court and also from the minutes which he read. That reference took, we are told, some ten or eleven days. I am convinced that it was unduly prolonged, and unduly prolonged in consequence of the attitude that was taken by the mutawallis. It is almost impossible for us sitting here, upon the materials before us, to say to what extent that reference was unduly prolonged. Therefore, in my judgment, it is necessary for us to take some rough and ready method in exercising our discretion upon this point. In my judgment the only way we can deal with it is to say that the mutawallis shall get their costs as between solicitor and client out of the estate, to the extent of half of the costs of that reference, which will be taxed.
4. With regard to the remaining proceedings, namely, the proceedings before Mr. Justice Fletcher, when the mutawallis took exceptions and those exceptions came to be argued; I have already said that the order of reference was a consent order, and, in my judgment, the parties having consented to that order and having consented to the matter being decided by the referee they ought to have abided by the report; instead of that the mutawallis brought in exceptions to that report on the reference and raised objections which have been overruled not only by Mr. Justice Fletcher in the Court of first instance but also by my learned brother and myself in this appeal, objections which in my judgment were unreasonable. In my judgment, the mutawallis ought not to get out of the estate any part of the costs of the proceedings before Mr. Justice Fletcher.
5. As regards the costs of this appeal the appellants have succeeded to a material extent in getting the learned Judge's judgment over-ruled; and we are of opinion that as regards these costs the appellants must get their costs out of the trust estate as between solicitor and client. The respondents will also get their costs of this appeal as between solicitor and client out of the trust estate.
Mookerjee, J.
6. I agree.