JUDGMENT 1. THIS appeal is directed against an appellate decree reversing the decree passed by a learned Subordinate Judge. There is no dispute as to the facts hereinafter stated. One Aswini Kumar Chatterjee, since deceased, (hereinafter referred to as the Settler) created a trust, for the purpose of making provision for the maintenance of himself, his third wife Santimoyee, his sons Sachindra, Sudhir and Panchugopal and also such other sons as might be born to him, by a registered deed, bearing the date December 6, 1930. The trust property consisted of certain securities and stocks and shares, valued in the deed of trust at Rs. 1,98,764/ -. The main provisions in the aforementioned deed were as follows:- "the settler doth hereby as settler transfer and assign unto himself as trustee the said stocks, shares and securities to the succession uses and trust following, viz: (a) to the use and for the benefit of the settler during his life time the whole of the income and profits of the said trust estate, (b) from and after the death of the said settler his widow the said Santimoyee Debi and/or his sons as soon as they or any of them attain the age of majority shall be and act as the sole trustee or joint trustees (c) from after the death of the settler the said trust estate shall be held to the use and for the benefit of the said Santimoyee Debi and the said sons, namely, to pay to the said Santimoyee Debi from the income and profits of the said trust estate Rs. 50/- monthly and every month and hold the balance of the income and profits of the said trust estate for the use and benefit of each of the sons in equal shares and after the death of the said Santimoyee Debi to make over the whole of the said trust estate to each of my sons in equal shares if he has attained majority Provided nevertheless and it is hereby expressly declared that the settler reserves to himself the right to vary the terms and conditions hereof so far as relate to the quantum of interest given to each of the beneficiaries after the death of the settler by his instrument of will alone and in no other way or act. " 2. " 2. THE settler administered the trust property for some time and thereafter conceived the idea of effecting, by a deed intervivos, certain changes in the trust, contrary to the express provisions of the trust deed. With the object of enabling him so to do, the settler took cut an originating summons, under Chapter XIII of the Original Side Rules of this Court, interalia, asking for reliefs of the nature or kind hereinafter indicated. He asked for revocation of the provisions contained in the deed of trust whereby the persons therein named were appointed trustees of the trust properties and whereby power was reserved in himself, as the settler, to alter the quantum of interest of the beneficiaries by will and in no other way; further he asked for liberty to alter the said quantum of interest in such manner as he may think proper by deed intervivos and not by will; also he asked for his own discharge and for appointment of the Official Trustee of Bengal as the sole trustee of the said trust. The originating summons was entitled as "in the matter of the Indian Trusts Act (II of 1882) and in the matter of the Official Trustees Act (II of 1913) and In the matter of the Trust created by the Deed of Trust dated the 6th December, 1930 by Aswini Kumar Chatterjee. 3. AFTER the service of usual summons, the matter came up for hearing before Remfry, J: (sitting in Chambers). 3. AFTER the service of usual summons, the matter came up for hearing before Remfry, J: (sitting in Chambers). The order passed by his Lordship, in so far as is material for the purpose of this appeal, is set out below:- "it is ordered that the provisions contained in the said Deed of Trust whereby the persons therein named were appointed Trustees of the said Trust Estate and whereby power was reserved to the said applicant to after the quantum of interest of the beneficiaries by will and in no other way be and they are hereby revoked; And it is further ordered that the said applicant as such settler as aforesaid be at liberty to alter the said quantum of interest in such manner as he may think proper by deed intervivos and not by will; And it is further ordered that the said applicant the present sole trustee under the said Deed of Trust be and he is hereby discharged from further acting as such Trustee and the Official Trustee of Bengal be said he is hereby appointed the sole trustee of the said Deed of Trust; And it is further ordered that the stocks and shares and securities (both moveable and immovable) now comprised in the Trust Estate do vest in the said Official Trustee of Bengal as such Trustee as aforesaid the order bears the date the 25th August, 1937. " 4. ACTING under the liberties given by the order quoted above, the settler made and executed a second Trust Deed on March 22, 1938. Under the Second Trust Deed, in place of the trustees named in the original deed, the Official Trustee alone was made the sole trustee; Sachindra, the plaintiff, was deprived of all his interest, as a beneficiary, in the corpus of the trust properties, as in the original deed, and he was given a fixed allowance of Rs. 20/- per month only, for life after the death of the settler, thus depriving him of his proportionate share in the income and profits of the Trust Estate, as in the original deed. With the other provisions in the second deed we are not concerned in this appeal. The settler enjoyed the income of the Trust Estate during his life and died on December 21, 1946, leaving him surviving his widow Santimoyee and his sons Sachindra, Sudhir, Panchugopal and Amiya Kumar. With the other provisions in the second deed we are not concerned in this appeal. The settler enjoyed the income of the Trust Estate during his life and died on December 21, 1946, leaving him surviving his widow Santimoyee and his sons Sachindra, Sudhir, Panchugopal and Amiya Kumar. The Trust Estate is being administered, by the Official Trustee in terms of the Second Deed of Trust aforementioned. Before his death, Aswini, the settler, executed his will and last testament concerning other properties owned and possessed by him and appointed the Official Trustee as the executor in the said will there was no mention of or reference to the trust or the trust properties. The Official Trustee duly took out probate of the said will. On December 18, 1950, Sachindra, as plaintiff, filed the suit, out of which this appeal arises, alleging: (a) that the power reserved by the settler of altering the quantum of interest of the beneficiaries by will alone and by no other means, as in the original trust deed, was irrevocable, (b) that the order, dated August 25, 1937, passed by the High Court, in its original jurisdiction, was null and void and without jurisdiction-the effect of it was making a new trust deed for the settler, for which there was no warrant in law,- (c) that the original trust deed, therefore, stood unaffected by the second deed of trust and the plaintiff was entitled to the benefits under the said original deed inspite of the changes sought to be effected by the second deed of trust, (d) that the Official Trustee, as the sole trustee of the trust, was bound to pay one fourth of the income of Trust Estate, so long as Santimoyee Debi was alive and on her death to make over one-fourth of the corpus of the Trust Estate to him, (e) that the Official Trustee was liable to lender accounts to the plaintiff of the profits of the Trust Estate since the time of the death of the settler. 5. ON the aforesaid allegations the plaintiff, interalia, prayed for declaration of his right to one-fourth of the corpus of the Trust Estate created by the deed dated December 6, 1930, for accounts and for a decree for the amount found due to him on taking of accounts. 5. ON the aforesaid allegations the plaintiff, interalia, prayed for declaration of his right to one-fourth of the corpus of the Trust Estate created by the deed dated December 6, 1930, for accounts and for a decree for the amount found due to him on taking of accounts. The main contest to the claim made by the plaintiff was by the Official Trustee, the defendant No. 1. Sudhir (defendant No. 5) did not contest. The other defendants, the widow and the other sons of the settler (defendants No. 2 to 4), filed a joint Written Statement, supporting the Official Trustee. 6. THE stand taken by the Official Trustee in his Written Statement, interalia, was (a) that the restrictive clause in the trust deed of 1930 regarding the manner of altering the quantum of interest of the beneficiaries was sufficiently and effectively revoked by the order of the High Court, dated August 1937 and the subsequent trust deed, dated March 3, 1938 executed by the settler in pursuance of the said order. The trust deed, dated December 6, 1930, was, therefore, no longer operative, (b) that the order by the High Court, so long as it stood as also the subsequent trust deed of 1938, until rescinded, were binding upon the all concerned. The plaintiff's claim for a declaration that the rights given to him under the trust deed of the 6th December, 1930 were still available to him and that the Official Trustee was liable to accounts to him, on the said basis was unfounded and unsustainable. The trial court decreed the plaintiff's claim for declaration in terms of the original deed of trust and passed a preliminary decree for accounts in his favour. On appeal the decree was reversed and the plaintiff's claim was wholly dismissed. The plaintiff Sachindra now appeals against the decree passed by the lower appellate court. The reasons which weighed with the court of appeal below, in reversing the decree of the trial court, need be referred at this stage. 7. THE lower appellate court held that the intention of the settler was that he had reserved to himself the light to alter the quantum of the interests of the beneficiaries. In the trust deed of 1930, the settler expressed his desire that he would do it by a will only. 7. THE lower appellate court held that the intention of the settler was that he had reserved to himself the light to alter the quantum of the interests of the beneficiaries. In the trust deed of 1930, the settler expressed his desire that he would do it by a will only. The right to alter being reserved - the settler indulged only in some: variation in the mode of exercising that right. The court of appeal below further held that it was in "the general power of the trustee to dispense with the matter of form in order to stick to the principal reservation made regarding the alteration of the quantum of benefit Some contingencies had occurred since the creation of the first trust dated 6-12-30 (Ext. 1), namely, birth of one son Amiya Kumar and one daughter by his third wife Santimoyee and circumstances had arisen which made it desirable for him to vary the quantum of interest of his said sons in the trust properties and for this reason he wanted to make another trust by making the Official Trustee, the trustee in respect of the trust properties. These changed circumstances and premises have all been elaborately recited in the second trust deed of Aswini. It was only a matter of form and not of substance by which he exercised his right to make alterations in the quantum of interests of the beneficiaries In the above view of the matter, Aswini Kumar's exercise of the right to alter the quantum of interests of the beneficiaries by deed intervivos was properly done and was within his power, the mode of exercise of that right being quite immaterial. There is also no validity in the contention that Aswini Kumar did it under the direction of the Court and did not exercise his free will in the matter. Aswini Kumar obtained an order of the Court, but that may be treated as surplusage. " 8. There is also no validity in the contention that Aswini Kumar did it under the direction of the Court and did not exercise his free will in the matter. Aswini Kumar obtained an order of the Court, but that may be treated as surplusage. " 8. THE lower appellate court also held that under section 71 read with section 73 of the Indian Trusts Act and under section 10 of the Official Trustees Act, reliefs as were claimed in the Originating Summons could only be had in the Ordinary Original Civil Jurisdiction of the High Court and the said Court was competent to discharge the settler trustee, to appoint the Official Trustee in his place and to give further direction or opinion that the settler was at liberty to alter the quantum of interest of the beneficiaries by a deed intervivos. The lower appellate court lastly held that independently of the order of the High Court, the settler could revoke the trust in the exercise of his power under section 78 (b) of the indian Trusts Act, because such power was reserved in the deed. The deviation in the mode of exercise of that power was immaterial and did not affect his right. 9. MR. Prafulla Kumar Roy, learned Advocate for the plaintiff appellant, placed strong reliance on the language of section 78 (b) of the Indian Trusts Act, which is as follows: - "a trust created by will may be revoked at the pleasure of the testator. A trust otherwise created can be revoked only- (a) (b) Where the trust has been declared by a non-testamentary instrument or by word of mouth-in exercise of a power of revocation expressly reserved to the author of the trust. " 10. MR. Roy contended that in the original trust deed, dated December 6, 1930, (Ext. 1), the language used was- "the settler reserves to himself the right to vary the terms and conditions hereof so far as they relate to the quantum of interest given to each of the beneficiaries after the death of the settler by his instrument of will alone and in no other way or act. 1), the language used was- "the settler reserves to himself the right to vary the terms and conditions hereof so far as they relate to the quantum of interest given to each of the beneficiaries after the death of the settler by his instrument of will alone and in no other way or act. " The language indicated that in the matter of revocation the settler had a two-fold limitation on his power, namely, (i) a procedural limitation in that he could revoke only by his will and by no other manner and (ii) a limitation as to substance, in that he could only vary the quantum of interest given to each of the beneficiaries after his own death but could effect no other alteration in the original deed of trust. Mr. Roy argued that the two-fold limitation went to the root of the Settlers power to revoke, alter or vary the terms of the original deed of trust and must not be minimized as formalities for the exercise of the power as sought to be done by the Court below. In Halsburrys Laws of England, (Simond's Edition) Volume 30, page 72, Article 518, the law as to defective execution of deeds in respect of matters like the present one is stated in the following language:- "equity relieves only against defects which are not of the essence of the power, relief will not be granted so as to defeat anything material to the intention of the donor of the power. Thus mere defects in the mode of execution will be aided, and so will an appointment by will made under a power to appoint only by deed. But no aid will be given to an appointment by irrevocable deed made under a power to appoint only by will or an appointment which would result in a fraud on the power or aid a breach of trust. Moreover, no aid will be given to the exercise by will of a power of revocation by a deed if it is clear that a deed is of the essence, as where the original power of appointment was by will or deed and on its exercise a power to revoke by deed only was reserved. " 11. Moreover, no aid will be given to the exercise by will of a power of revocation by a deed if it is clear that a deed is of the essence, as where the original power of appointment was by will or deed and on its exercise a power to revoke by deed only was reserved. " 11. AND in Halsbury's book on Modern Equity (7th Edition) there is the following useful of restatement of the Jaw (at pages 55-56) : "if the done of a power has shown his willingness to execute it, but has adopted an ineffective method of doing so, equity will 'take the will for the deed', and render his attempt effective, by treating it as an execution. But it will do this only for certain favored objects. In Tollet v. Toilet, (1728) 2 P. Wms. 489, creditors, wives and children were expressly mentioned; we must add purchasers and charities. In all these cases the donor of the power intended the fulfillment of a moral obligation, and the action of equity is really based on the maxim 'equity imputes an intention to fulfill an obligation'. Where the element of moral obligation is absent equity will do nothing. Thus volunteers can claim no assistance. The case brings out another important point. The power was exercised by will, whereas it should have been exercised by deed. Now a will is revocable at any time during the testator's lifetime, as so the defect is treated as one of form only, and relief will be granted. But the defect constituted by the converse process, the attempted exercise by irrevocable deed of a power which should have been exercised by will, is treated as a matter of substance, and, in Reid v Shergold, (1805) 10 Ves. 370 as fatal to the objects of the power. " 12. A fuller summarisation of the English law on the point is to be found in "law of Real Property" (2nd Edition) by Megarry and Wade (at pages 460-461): "the general rule is that any condition prescribed for the execution of a power must be observed, otherwise the appointment will be void. It is immaterial how absurd or unreasonable the conditions are. But this position has been modified by statute. (a) Wills. It is immaterial how absurd or unreasonable the conditions are. But this position has been modified by statute. (a) Wills. By the Wills Act 1837, an appointment by will is valid so far as concerns execution and attestation, if it is executed with the formalities required for wills (i. e., signed by the testator in the presence of two witnesses who then sign their names), even if the instrument creating the power requires other formalities, such as ten witnesses. (b) Deeds. By the Law of Property Act, 1925, an appointment by a deed is valid as regards execution and attestation if it is signed in the presence of and attested by, two witnesses, even if the instrument creating the power requires other formalities. " Deeds and Wills are thus on a similar footing in this respect. But it must be noticed that these provisions apply only to formalities concerning execution and attestation, such as a requirement that the document should, be executed in a certain place in the presence of three witnesses. There is nothing in these provisions to make it unnecessary to comply with other requirements (e. g., as to the obtaining the consent of specified persons), and an appointment made not in accordance with such requirements is void. But in one limited class of cases equity will intervene and treat the defective appointment as valid. This will be done only if both the following conditions are satisfied: "(i) the defect is merely formal and not one of substance. Thus if under a power to appoint by deed the donee appoints by will, equity will grant relief. But if there is a power exercisable only by will, equity will not aid an appointment by deed, for the power was not intended to be exercised, until the donee's death, and the donee was meant to be free to modify the appointment until then. (ii) the relief sought by a purchaser, creditor or charity, or the wife or the legitimate child of the donee of the power. " 13. (ii) the relief sought by a purchaser, creditor or charity, or the wife or the legitimate child of the donee of the power. " 13. CHESHIRE in his book "the Modern Law of Real Property" (8th Edition) gives, in his characteristic style, a pithy summary of the law (at pages 212-13) : "thus relief will be given, if a power exercisable by deed or will is in fact exercised by a signed but unattested paper, or if a power exercisable by deed is exercised by will, unless the formality of a deed was regarded as essential by the donor, or if a power exercisable by will is exercised by an irrevocable deed, for the donor intended that the donee should be free throughout his life to revoke an appointment should he so desire. " 14. WE have not the least doubt, in the instant case, that the power reserved by the settler to vary the terms and conditions of the original Trust Deed (Ext. 1) by a Will and not by a Deed and the manner of exercise of that power must be regarded as essential because the language used was "by his instrument of will alone end in no other way or act. " The general law is that essential condition for the exercise of a power, under a deed, must be observed, otherwise the exercise of such power shall be void. This general law, however, admits of an equitable exception, namely, where the defective exercise of such power is for the fulfillment of some moral obligation. The exercise of this power by a second deed of trust, in the instant case, will not be saved by any equitable consideration because there is no question of fulfillment of any moral obligation by such changes, effected in a defective manner. This is so because in the matter of defective execution, where the prescribed manner of execution is of the essence of the transaction, equity will not aid volunteers. This is also so because it is settled law, as will appear from the quotations above that the attempted exercise by irrevocable deed of a power which is to be exercised by will is treated as a matter if substance and, as held in Reid v. Shergold (1) (1805) 10 Ves 370, as fatal to the objects of the power. We, therefore, uphold the first contention of Mr. We, therefore, uphold the first contention of Mr. Roy, that the court of appeal below was wrong in minimizing the defects in making changes and alterations in the original deed of trust as formal defects. The court of appeal below should have held that the defect was a substantial defect and made the second deed of trust a void document. The next question that arises for our consideration is whether the defects notwithstanding, the second deed of trust will be saved by virtue of the order' passed by Remfry, J., in the proceeding started by an originating summons. Mr. Roy contended that the said order was made without jurisdiction and must be treated as a nullity. Elaborating his contention, Mr. Roy argued that in the aforesaid proceeding, the provisions of the Indian Trusts Act were invoked and that was to all intents and purposes section 34 of the Act. Under that section: "any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal. The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee in the subject matter of the application. " 15. PROCEEDING under that section, Mr. Roy argued, no trustee was entitled to ask for an alteration of the provisions in the trust deed or for permission to revoke the original deed and execute another, in a manner not permissible under the original deed and no court had power to allow such a trustee, although he may be the settler-trustee, to make such changes in the deed or to permit him to revoke the first and execute a second deed of his choice, because the section did not provide for such an order. Such an order, if made under section 34 of the Trusts Act, would be without jurisdiction and must be treated as a nullity. In support of this part of his contention Mr. Such an order, if made under section 34 of the Trusts Act, would be without jurisdiction and must be treated as a nullity. In support of this part of his contention Mr. Roy relied on the following observation by Sir Dinshah Fardunji Mulla in Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarti (2) (L. R. 60 I. A. 71) : "the Act does not contain any provision for making a decree on an award such as is contained in Schedule II, paragraph 21 of the Code of Civil Procedure. Such a decree, if made, is one without jurisdiction and therefore a nullity. " 16. MR. R. C. Deb, learned advocate for the respondent Official Trustee, tried to repel this branch of the argument of Mr. Roy by contending that the order made by Remfry, J. may have been a wrong order but not an order without jurisdiction. The High Court had all the jurisdictions in the matter, namely, pecuniary jurisdiction, territorial jurisdiction and jurisdiction over the subject matter and any order passed by it, though a wrong order would not be an order without jurisdiction. In support of his contention Mr. Deb referred to Rule 1 of Chapter V of the Original Side Rules, which is as follows:- "any Judge of the High Court may, subject to any rules of Court, exercise, in Court or in Chambers, all or any part of the jurisdiction vested in the High Court on its Original Side. " He also relied on two decisions of this Court one reported in (3) I. L. R. 48 Calcutta 138 F. B. (Hriday Nath Roy V. Ram Chandra Barua Sarma) and the other reported in (4) 63 C. W. N. 467 [calcutta National Bank (In Liquidation) v. Abhoy Sing]. 17. IN I.L.R. 48 Calcutta 138 F. B. (Supra) Mookerjee, A.C.J., re-stated the legal position as to court's jurisdiction in the following language:- (a) "thus, the jurisdiction may have to be considered with reference to place, value, and nature of the subject-matter. The power of a tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, record of rights as between landlords and tenants. The power of a tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, record of rights as between landlords and tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject-matter is obviously of a fundamental character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction; for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and subject-matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. " (b) "the distinction between existence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has sometimes led to confusion. [see Mabulla v. Hemangini [ (1910) 11 C. L. J. 512] and Moser v. Marsden [ (1892) 1 Ch. 487], where the term jurisdiction is used to denote the authority of the court to make an order of a particular description]. We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing as well as a determination. A judgment pronounced by a Court without jurisdiction is void, subject to the well-known reservation that when the jurisdiction of a Court is challenged, the Court is competent to determine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it:" (c) "since jurisdiction is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide' wrongly as well as rightly. " (d) "there is a clear distinction between the jurisdiction of the Court to try and determine a matter, and the erroneous action of such Court in the exercise of that jurisdiction. " (d) "there is a clear distinction between the jurisdiction of the Court to try and determine a matter, and the erroneous action of such Court in the exercise of that jurisdiction. The former involves the power to act at all, while the latter involves the authority to act in the particular way in which the Court does act. The boundary between an error of judgment and the usurpation of power is this: the former is reversible by an Appellate Court within a certain fixed time and is therefore only avoidable, the latter is an absolute nullity. " (e) "reference may particularly be made to the judgment of Srinivas Aiyangar, J., in Tuljaram v. Gopala [ (1916) 32 Mad. L. J. 434] where the true rule was stated to be that if a Court has jurisdiction to try a suit and has authority to pass orders of a particular kind, the fact that it has passed an order which it should not have made in the circumstances of that litigation, does not indicate total want or loss of jurisdiction so as to render the order a nullity. " 18. THE aforesaid Full Bench decision is binding upon us and we respectfully accept the law as enunciated therein and proceed on the same. The result that will follow, proceeding on the aforementioned enunciation of law, we shall indicate hereinafter, after examination of the other decision relied upon by Mr. Deb. In (4) 63 C. W. N. 467 (Supra) the questions that arose were: (i) Whether an unsecured creditor of a limited company had any locus stand in a proceeding for extension of time for registration of a mortgage or charge under section 120 of the Indian Companies Act, 1913 (corresponding to sec. Deb. In (4) 63 C. W. N. 467 (Supra) the questions that arose were: (i) Whether an unsecured creditor of a limited company had any locus stand in a proceeding for extension of time for registration of a mortgage or charge under section 120 of the Indian Companies Act, 1913 (corresponding to sec. 141 of the Companies Act, 1956), the proviso to section 120 (2) being Limited to protecting the rights of creditors acquired in respect of the property concerned prior to the time when the mortgage or charge was actually registered, (ii) Whether the Court was competent to extend the time under that section in a case which came under section 10sa of the Companies Act, 1913 as was done in that case, (iii) if the answer to the second question was in the negative whether an order of extension of time actually made by the Court under section 120 was a nullity or an illegal order made by irregular assumption of jurisdiction. Lahiri, J. (as the Chief Justice then was), sitting with Ray, J, answered the first two questions in the negative. But although holding that the High Court was not competent to make that order, still then relying on the decision in (3) I. L. R. 48 Calcutta 138 (F. B.) his Lordship held as follows :- "in the present case S. B. Sinha, J. being the Company Judge had jurisdiction under section 3 of the Indian Companies Act over the subject matter of the dispute and there is no dispute that he had territorial as well as pecuniary jurisdiction in respect of the subject matter of the dispute. Consequently the conclusion is irresistible that the decision which he actually gave is a decision given in irregular exercise of that jurisdiction. For the foregoing reasons I hold that the order made by S. B. Sinha, J. is not a void but avoidable order and it can be revoked only at the instance of a litigant who has an interest in the subject matter of that proceeding. " 19. IN the above case, the High Court had jurisdiction to pass an order for extension of time for registration of mortgages and charges, of the nature it did, in cases coming under section 109 of the Companies Act, 1913. " 19. IN the above case, the High Court had jurisdiction to pass an order for extension of time for registration of mortgages and charges, of the nature it did, in cases coming under section 109 of the Companies Act, 1913. In irregular exercise of that power, that Court passed an order for extension of time in a case coming under section 109a of the Act. It was, therefore, held that the order was not without jurisdiction but merely an avoidable order, liable to be set aside by appeal or review. 20. MR. Deb contended that the High Court possessed the power to make an order, of type made by Remfry, J. and hereinbefore referred to in a suit of the nature of an administration suit. If that power had been exercised in a proceeding started on an originating summons, that would be merely irregular exercise of the jurisdiction but the order passed by such irregular exercise of jurisdiction would not be a nullity. He contended in the above view that older made by Remfry, J. must remain free from challenge, in the instant case on the authority of the decision in (4) 63 C. W. N. 467 (Supra ). We are unable to accept this contention of Mr. Deb as legally correct. The object of an administration suit, as held by Mukherji and S. K. Ghosh, JJ. in Sovaprasad Singh v. Prayag Kumari Debee (5) (A. I. R. 1935 Cal. 39), of the estate of a deceased person who left no executor, "is to have the estate administered under a decree of the Court; in such a suit the whole administration and settlers it of the estate are assumed by the Court; the suit in its essence is one for an account and for application of the estate of the deceased for the satisfaction of the dues of all the creditors and for the benefit of all others who are entitled, and the Court marshals the assets and makes such a decree (See 1918 Cal. 883, 1931 Mad. 683 ). Forms of plaints in such suits are given in Schedule I, Appendix A, Forms Nos. 41 to 43. Order 20, rule 13, Civil Procedure Code, provides that, in an administration suit, the Court shall pass a preliminary decree, before passing the final decree, directing accounts to be taken and enquiries to be made. 883, 1931 Mad. 683 ). Forms of plaints in such suits are given in Schedule I, Appendix A, Forms Nos. 41 to 43. Order 20, rule 13, Civil Procedure Code, provides that, in an administration suit, the Court shall pass a preliminary decree, before passing the final decree, directing accounts to be taken and enquiries to be made. Forms for preliminary decrees are given in Appendix D. Forms 17 and 19 and forms for final decrees are given in Appendix D, Forms 18 and 20. " If the suit is for administration of a trust, the nature of the suit is the same, with the only difference that instead of the estate of the deceased, a trust estate has to be administered for the purposes of the trust. Even in such a suit, the Court hap no power to make a new trust, by directing certain alteration to be made in the old trust deed by a new deed. Far less does it possess such power and jurisdiction in a proceeding started under Chapter XIII of the Original Side Rules of this Court, read with section 34 of the Indian Trusts Act. 21. LACKING in power, as it was, to direct alteration of the Trust by a deed, this Court, although possessing all the jurisdictions over the subject matter of the dispute, was not competent to recite itself to power and pass the order that Remfry, J. did. The order was, therefore, a nullity. 22. IT is not enough for a Court merely to possess jurisdiction-it must, in addition, have the power to pass an order of a particular kind. Possessing both jurisdiction and power to make a particular order, if it passes the order in a case, where it should not have been done, the order does not become a nullity. This was what was pointed out in (3) I. L. R. 48 Calcutta 138 F. B. as the true rule. In the case reported in (4) 63 C. W. N. 467 (supra) the Court had both jurisdiction and power to make the order of that particular type but it made the order in a case where if should not have so done. In the instant case, although possessing the jurisdiction, Remfry, J. had no power to make the order that he did. In the instant case, although possessing the jurisdiction, Remfry, J. had no power to make the order that he did. This is how the present case is distinguishable from the case in (4) 63 C. W. N. 467 (supra). In the view that we take, we reject the contention made by Mr. Deb and hold that the order made by Remfry, J. did not save the second trust deed, being itself an order passed without authority and power and therefore, a nullity. 23. THE Official Trustee respondent was appointed the trustee under the order of Remfry, J. At that time the second trust deed had not been made. When it was made there was no fresh appointment of the Official Trustee as the sole trustee of the second Trust. Nevertheless, he has administered the trust according to the terms of the second trust deed. Since we hold that the second trust deed is a void document, the position of the Official Trustee, who administered a void trust, becomes that of a trustee de son tort. In that capacity he is liable to accounts to the plaintiff. 24. WE have no doubt in our mind that the Official Trustee acted bona fide under the cover of the order made by Remfry, J., hereinbefore referred to. In taking accounts and in passing a decree for the sum found due on accounts against the Official Trustee, the trial court shall consider whether or not to direct that the money due under the decree is to come out of the trust estate and whether or not to direct the persons who have received more than their shares under the trust deed, to disgorge the excess amount so received by them. In the result, we allow this appeal, set aside the judgment and decree of the lower appellate court and restore the decree passed by the trial court, with the directions hereinbefore indicated. The parties shall bear their own costs throughout.