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TMI Blog1949 (2) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... sound discretion under this section. 4. But before I consider the decisions under the statute, I turn to the earlier English decisions, for the principle on which that discretion was exercised before the Statute. I read only the leading cases. 5. In 'King v. King' (1801) 6 Ves 172. opposite claims were set up under different Wills, & a decision had been made that one Will had not been sufficiently proved. It was objected, in opposition to the Motion, that the property did not appear to be in danger, & that Ecclesiastical Court (Court which used to grant probate of a Will) would appoint a, receiver 'pendente-lite', that is, an administrator 'pendente-lite'. Lord Eldon said, "This is almost a motion of course.........The Court goes upon this, that it will do its best to collect the effects. The property is in danger,. in this sense, that it may get into the hands of persons who have nothing to do with it." 6. In 'Rendall v. Rendall' (1841) 1 Hare 152, Sir James Wigram, V.C. after referring, to 'King v. King' (1801) 6 Ves 172, said, "From this case, in which the rule of the Ct. is so clearly laid down, I pass to the late c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt person, to obtain a grant of administration 'pendente-lite, without the consent of- the other side. Not only the text books, but the cases cited against that argument, unquestionably established the proposition that in the Ecclesiastical Courts administration was never granted, unless with the consent of all parties, or unless a case of necessity was made out. Has the practice of this Court been different from that of the Ecclesiastical Courts? In one case since I had the honour to presiding here, I refused to grant administration "pendente-lite, on the ground that no necessity was made out for it. I have taken some pains to ascertain whether the same course was followed by my learned predecessor. A case has been found in the Registry where the property was more within the category of property in danger, than the property in this case, being money due in respect of freight, shares in railways & other companies household furniture & cash. Although in that case there was quite as much or more than there is in this case to call for such a grant, & although an attempt was made with some success to show that the person who then had possession of the estate could not be truss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make demands for the payment of money due to his estate, it is often necessary that an administrator 'pendente lite' should be appointed; but where the deceased at the time of his death was in partnership with another person, the case is very different. The deceased & the plff. were joint tenants of this property; it belonged to them in partnership, & if an administrator were to be appointed, there would be nothing for him to lay his hands upon until an account of the estate has been taken in Chancery." 11. These principles are firmly established in England. There cannot even be a suggestion of doubt as to their correctness. In our Court they have been followed & adopted by Sir Ashutosh Mukherjee, J., in 'Brindaban v. Sureswar' 10 CLJ 263, in 'Bhuban Mohini v. Kiran Bala' 13 C L J 47, in 'Promila Bala v. Jyotindra' MANU/WB/0157/1923MANU/WB/0157/1923 : 28 CWN 576. In 'Brindaban v. Sureswar', the learned Judge after referring to 'Bellew v. Bellew' (1865 4 Sw & Tr 58) observed: "The Court of probate would grant administration 'pendente-lite' in all cases where the necessity for the grant is made out." 12. I do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er there is a suit pending, touching the validity of a Will, it is obligatory upon the Court to appoint an administrator 'pendente lite'. We may take the following illustrations. A man makes a Will, & appoints an executor. He dies leaving rupees ten lakhs in the Imperial Bank of India & a dwelling house in Calcutta, say of the value of rupees ten lakhs. The executor named in the Will applies for probate. The Will is contested as a forgery. Assuming the contest to be 'bona fide' should the Court appoint an administrator 'pendente lite ? The answer must be in the negative, because here it is not necessary to collect anything pending grant of administration to the executor, or to give discharge to anybody. But suppose in that case, the. man, instead of leaving a dwelling house, left a house yielding a monthly income of Rs. 3,000/-, is there a necessity? The answer must be in the affirmative, for it is the duty of the Court to do its best to collect the assets & see that the persons who pay the money get the proper discharge. It is no longer necessary to show peril or danger to the estate. 20. In '13 C L J 47', the case was this: After the death of the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other necessary expenses...............". 21. On these observations no grant was made. It is clear that the Court did not think fit to appoint an administrator 'pendente-lite' because the widow could legally give discharges for rent she would realise, which she was entitled to do under the provisions of the Land Registration Act, read with Section 60 Bengal Tenancy Act. As to the rest of the properties belonging to the estate, sufficient undertaking had been given for their safeguard. 22. In this case the learned Advocate General on behalf of the executor named in the Will says that the executor is willing to give undertaking for protection of the deceased's property & asks to be allowed to collect the rent of the estate. This submission, I think, is a recognition of the principle that there must be somebody, clothed with the necessary authority to collect the assets & give proper discharge; without the representation there is nobody who can give the discharge. 23. Turning to the facts of this case, I find the testator was an old man who died leaving a widow, a son (who is the executor named in the Will), & two grandsons by a predeceased son who are opposing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear, did not appoint a receiver, & therefore this Court should not appoint an administrator 'pendente lite'. 33. The answer is two-fold: The question in England arose whether an application for a receiver will lie pending a suit touching probate or administration. In several suits the Chancery Division refused to entertain an application for a receiver: 'Re. Ivory' 1879 10 Ch. D. 372; 'Hitchen v. Birks' (1871) 10 Eq. 471. Recently however the' Chancery Division, though appointed a receiver pending a suit in the Probate Division, expressed its opinion that it would be better to apply, where possible, to the Probate Division : Re. Oakes (1917) 1 Ch. 230. Perhaps that may be the reason why Sinha J. did not appoint a receiver in the partition suit. 34. Further, even if in the partition suit a receiver was appointed, that would not be a bar to the appointment of an administrator 'pen-dente lite'. "The Court will appoint an administrator 'pendente lite', if it is just & proper so to do, though a receiver may have been appointed by the Chancery Division in a suit pending between the same parties & affecting the same properties as the test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of their just rights in the estate. It is further alleged that the executor is acting adversely to the interest of the applicants, & when they sought to get an order for an inventory of the assets of the estate, the executor strenuously opposed the application. It is also alleged that the executor is doing away with the Govt. Promissory Notes belonging to the estate. 44. The executor has given explanation as to the conversion of the testator's account into the joint account; he has given explanation for the Govt Promissory Notes. I have nothing to do with those explanations at this stage. I do not for a moment say or suggest that the charges made against the executor are true. They may be true or may not be true. 45. I also note that the widow of the testator supports the executor in his opposition & says that if at all an appointment is made, the executor named in the Will should be appointed that is to say, persons representing two-third share of the estate oppose the application for a grant of administration pendente lite & say that if an administration pending litigation is at all granted, the executor named in the Will should be appointed. 46. I do not think, I shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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