SHOILESH CHANDRA MUSTAFI Vs. AMAL CHANDRA MUSTAFI

JUDGEMENT

(1.) The present dispute is an offshoot of an application for probate originally filed by one Amal Chandra Mustafi in the Court of the District Judge of 24-Per-gannas. Subsequently one Guruprosad Mustafi also joined as a co-applicant for the probate. The will in question purports to have been executed by one Hem Nalini Devi in October, 1950. Hemnalini had three sons, Profulla, Nirmal and Shoilesh of whom the first two are dead. Amal is son of Nirmal and Guruprosad is son of Profulla. As the application for grant of probate had become contentious, the application was subsequently registered as a plaint. Summons was duly served on Shoilesh and he appeared and contested the proceedings.

(2.) During the pendency of the suit in the Court of the District Judge an application for appointment of an administrator pendente lite in respect of the properties covered by the will was filed by the plaintiffs on the allegation that defendant Shoilesh had taken possession of the ground floor portion cf one of the properties, viz., the house at 279/3, Upper Circular Road, and after having inducted tenants in that portion he was not paying anything towards the seba puja of the Deity or towards Corporation taxes and rates. This application was opposed by Shoilesh who contended that the house property in question was a debottar property, having been dedicated to Deity Sri Sri Iswari Raj Lakshmi Thakurani by the alleged testatrix as early as in 1939. The contention of the objector, therefore, was that no administrator could be appointed so far as this property was concerned, because the testatrix could not make any valid disposition in respect of it, having already dedicated it in favour of the Deity. The contention of the objector further was that it was not expedient to take this property out of the possession of the objector and to make it over to the possession of the administrator. The learned District Judge by his order, dated 28-11-1955 repelled these contentions of the objector and directed that an administrator pendente lite should be appointed in respect of all the properties covered by the will including the disputed liouse. Some subsequent orders recorded by the District Judge would show that a lawyer of Alipur, Sri Amulya Charan Ganguli, was appointed administrator in respect of the properties covered by the will including the disputed house after he had furnished the requisite security. This appeal has been preferred by defendant No. 1 in the Court below challenging the validity and propriety of this appointment.

(3.) Mr. Manindra Nath Ghosh appearing on behalf of the appellant has submitted two principal contentions before us. In the first place, he has argued that the learned District Judge was wrong in holding that the question of the disposing power of the testatrix could not be raised by the objector in any way. Secondly, he has argued that upon the facts of the case as made out before the District Judge he should have held that it was not necessary to appoint an administrator pendente lite in respect of the disputed house. We shall take up these two contentions one after another.