TMI Blog1949 (2) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 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 case of 'Wood v. Hitching' (1840) 2 Beav 289, in which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 trussed, because he had been convicted of an offence against the custom laws , Sir C. Cress-well refused the application with costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 not think I would be doing any injustice to the parties or would be using my discretion in a wrong way, if I use my discretion in the light of these principles. 13. The question, therefore, is what is nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 alleged testator, his nephews propounded a Will alleged to have been executed by the testator, the effect of which in substance was to leave the estate to the daughter of the testator practically to disinherit the widow. Probate was granted in common form. Subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the grant. 24. The estate is considerable. It is admitted on behalf of the executor that the monthly rent realised is Rs. 3,500/-; that a sum of about Rs. 1,16000/- is due from the Govt; on this basis the value of the estate would be about Rupees ten lacs; that there are decrees outstanding in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntertain 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 testamentary or administration suit . Williams on Executor, 12th Edn., p. 353-4. 35. It was next contended that the Court will not appoint an administrator 'pendente lite' where there is a person named in the Will as. executor. But that principle applies where the appointment is not questioned. 'Mortimer v. Paull' 2 P D 85 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 should be exercising my discretion properly if in the face of the charges made against the executor named in the Will, I appoint him administrator 'pendente lite. The administrator 'pendente lite' should be like a receiver, an impartial person, I. venture to think that an executor, who is so mixed up in the case as this executor is, should not be appointed the administrator ..... X X X X Extracts X X X X X X X X Extracts X X X X
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