ADAPALA SUBBA REDDY Vs. ADAPALA ANDEMMA

JUDGEMENT

(1.) THIS is an appeal against the order of the District Judge of Nellore on an application filed in O. P. No. 4 of 1919, a petition for the grant of probate of a will dated 22 -7 -1918 of one Venkatanarasa Reddi who died leaving behind him three widows, three daughters and two divided brothers. The first widow is the applicant for probate of the will which was registered during the lifetime of her deceased husband. To the petition, her co -widows, the daughters of the deceased and his brothers were made parties. An application was made pending the petition purporting to be under Sections 247 and 268, Succession Act and Sections 94 and 151 and Order 40, Rule 1, Civil P. C., for the appointment of an interim administrator or receiver to take possession of the entire estate and manage the same during the pendency of the probate proceedings.

(2.) THE estate comprises admittedly considerable extent of immovable property. The deceased was entitled to a third share. The properties had not been divided by metes and bounds and it is common ground that on the date of the petition the properties were in the possession of the two divided brothers who were respondents 6 and 7 in the petition. The application was made on the ground that it was necessary to secure and preserve the properties pending the disposal of the proceedings, having regard to the magnitude of the estate and the hostile attitude taken up by respondents 6 and 7, the brothers. Their attitude was based on a will which they set up alleged to have been executed by the deceased on 15.8.1948, a day before he died. This will has not been registered. It was alleged in the affi -davit filed in support of the application that respondents 6 and 7 had conceded movable properties of large value and realised large amounts by way of income and sale of movables and had manipulated the accounts to suppress the true extent of the estate and to minimise the income accruing therefrom. The petitioner's co -widows did not have any objection to the appointment of a receiver and the opposition was entirely from the brothers, respondents 6 and 7. The learned District Judge found that the applicant had a prima facie case in view of the registered will on which she was relying as against the unregistered will relied on by the contesting respondents. The learned Judge thought that as the two brothers were admittedly entitled to two -thirds of the estate, it would be unfair and improper to oust them from possession and management and to vest the entire estate in the hands of a third party. He, however, was convinced that it was necessary to safeguard the interests of the petitioner by appointing a local advocate as receiver but with limited functions, namely, to have general supervision over the management of the estate, to take an inventory of the movables and out -standings and to receive a third share of the net income from the two brothers (respondents 6 and 7) and deposit the same immediately into Court. Respondents 6 and 7 were directed to give adequate facilities to the receiver for supervising their management and to make the accounts available to him for scrutiny. Respondents 6 and 7 have appealed against this order.

(3.) WE may also add that we do not see much substance in this objection. In Namagiri v. Subbarao, I. L. R. (1948) Mad. 494 : A. I. R. 1949 Mad. 45 the probate proceedings in the first Court had come to a close. The Court granted a probate and there was a person clothed with due authority to administer the estate. It was clear, therefore, that the estate was not in need of any adequate representation. In that case the application was for an injunction restraining the person who had been granted probate from taking possession of the properties of the deceased and administering his estate. Having regard to these facts, it was held that there was no scope for the application being granted either under Order 39, Rule 1, Civil P. C., or under any inherent jurisdiction of the Court. It was pointed out intar alia that under Section 247, Succession Act, 1925, pending any suit touching the validity of the will of a deceased person the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate. It has also been held that the position of euch an administrator would be analogous to that of a receiver appointed under Order 40, Rule 1, Civil P. C. In the case before us the probate has not yet been granted to any one and therefore it can be said that there is no adequate representation of the estate of the deceased. To safeguard such an estate, it cannot be said that it is not just and proper that a person should be appointed receiver or administrator pendente lite.