PANDURANG SHAMRAO LAUD Vs. DWARKADAS KALLIANDAS

JUDGEMENT

(1.) This is a notice of motion taken out by the defendants for the appointment of the Court Receiver as the administrator pendente lite and receiver of all the moveable and immoveable properties belonging to the estate left at the death of Pultibai, widow of Runchhoddas Tribhowandas Mody, and of the claims and documents referred to in prayer (1) of the notice of motion, and also for an injunction against the plaintiffs in terms of prayer (2) thereof. Putlibai died in Bombay on April 25, 1932, leaving a will dated August 30, 1931, of which the plaintiffs are the executors. Plaintiffs have filed their petition for probate of the said will. Putlibai died childless, and the defendants would be some of her heirs as on an intestacy, and are also the reversionary heirs of her deceased husband. They filed a caveat and have made an affidavit in support thereof with the result that the petition has been turned into a testamentary suit. Defendants allege that the will was obtained by the plaintiffs by means of a fraudulent conspiracy between themselves and by the exercise of undue influence, coercion and importunity on the testatrix, and that, therefore, it is void and of no effect. Under the will plaintiff No. 4, who is the son of plaintiff No. 3, gets a specific bequest of ten lakhs of rupees together with the house of the deceased situate at Ridge Road, Bombay, and a bungalow at Mahabaleshwar and also ornaments and jewellery which have been estimated somewhere between two and five lakhs of rupees. There is a bequest of a large amount to charity, and the residue is also given for charitable purposes. Defendants allege that the bequest to charity is illusory, for there will not be much left after paying off the legacies and defraying all the costs of administration. The plaintiffs deny that the bequest is illusory as alleged. Defendants allege that in the latter half of July 1931 the testatrix was taken to Nasik by plaintiffs Nos. 2 and 4, and" plaintiff No. 1 and his wife came there later, that she was in bad health, that she was kept in duress, and on her return she was made to execute a will on July 29 which was replaced by the will now propounded. Plaintiffs on their side deny each and every one of these allegations, and they contend that the testatrix was a free agent, knew what she was about, and that she was also anxious that defendants should have no benefit under the dispositions contained in her will. All these allegations and counter-allegations will have to be gone into at the hearing of the suit, and I do not wish at this stage to say anything one way or the other which may prejudice the plaintiffs or the defendants in respect of their contentions at the hearing. All that I can say at present is, judging by the number of affidavits put in and their length and the number of statements therein contained, that it will take some appreciable time before the suit is heard and finally disposed of.

(2.) Defendants have made their present application under Section 247 of the Indian Succession Act which is the same as Section 70 of the old Court of Probate Act of 1857 in England, 20 & 21 Vic. c. 77. Section 70 applied only to personal estate. Section 71 of that Act gave the Court of Probate power to appoint a receiver even of the real estate of the deceased pending the suit, so far as the validity or otherwise of the will might affect the real estate. Both these sections are now, with regard to deaths, occurring after the year 1925, repealed by Section 163 (1) of the Supreme Court of Judicature (Consolidation) Act of 1925, 15 & 16 Geo. V. c. 49, and Section 247 of the Indian Succession Act corresponds to Section 163 (1) of the Judicature Act of 1925. Section 247 provides that pending a suit touching the validity of the will of a deceased person the Court may appoint an administrator of his estate, and such administrator shall have all the rights and powers of a general administrator other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction. In other words, the position of an administrator pendente lite is similar to that of a receiver, with this distinction that the administrator pendente lite represents the estate of the deceased for all purposes except distribution. Before granting administration pendente lite the Court has to be satisfied in the first place that there is a bona fide suit pending, touching the validity of the will of the deceased. In England proceedings on a caveat do not constitute an action, but here we are governed by Rule 632 of the High Court Rules which provides that upon the affidavit in support of the caveat being filed, the petitioner for probate shall be called upon by notice to take out a summons, and the proceedings shall be turned into a suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant. The caveat having been filed in this case and also an affidavit in support thereof, there can be no doubt that there is a Us pendens in this Court. Secondly, the Court, before exercising its jurisdiction to grant administration pendente lite, has also to be satisfied whether there is a necessity for such a grant. In Rendall V/s. Rendall (1841) 1 Hare 152 it was held by the Vice Chancellor that where no probate or administration had been granted, a receiver was appointed as a matter of course pending a bona fide litigation in the Ecclessiastial Courts to determine the right to probate or administration unless a special case for not doing so had been made out. In Bellew V/s. Bellew, s. c. 4 Sw. & Tr. 58 Sir J.P. Wilde intimated that he would not in future follow the established practice of requiring a case of necessity before making a grant of administration pendente lite, but would make it whenever the Chancery Court would have appointed a receiver, and that he would in future appoint an administrator pendente lite where a bona fide suit was pending irrespective of the property of the deceased being in any particular danger. We are, however, governed by Section 247 of the Indian Succession Act, and the appointment is purely discretionary, as the word "may" in the section clearly indicates, but that discretion has to be exercised judicially and not arbitrarily. In my opinion the Court has to be satisfied as to the necessity of such an administration and as to the fitness of the proposed administration, and it must also be satisfied that it is just and proper under the circumstances of the case to appoint an administrator before subjecting the estate to the cost of such administration. The Court has, apart from the Indian Succession Act, general jurisdiction to appoint a receiver in any case in which it may appear just and convenient to do so. Such an appointment cannot be claimed as of right merely because the proceedings are contested, but whenever there is a bona fide dispute and a case of necessity has been made out, the Court in its discretion generally makes the grant, Counsel for the plaintiffs relied on a Calcutta decision in Jogendra Lal Chowdhury V/s. Atindra Lal Chowdhury (1909) 13 C.L.J. 34. In that case the District Judge appointed an administrator pendente lite, but his order was set aside by the High Court of Calcutta. According to the facts of that case the caveator, who was the grandson of the testator, had raised no objection in the probate proceedings to the appointment of the appellant who was the son of the testator as an executor, nor did he raise any objection to the son acting in his capacity as executor, nor did he for more than one year between the death of the testator and the application for probate take any objection to the estate of the deceased remaining in the hands of the executor, nor did he object for four months even after the application for probate had been made. Various charges were made against the executor. The District Judge dealt with all of them, and held that none of them was proved. Nevertheless, the District Judge made an order appointing an administrator pendente lite on the ground that the accounts of the estate did not seem to him to have been properly kept by the executor, which ground was not even taken by the caveator. Each case must depend upon its own facts, and upon the facts of that case the Appeal Court came to the conclusion that no necessity for the appointment of an administrator pendente lite had been made out.

(3.) Under Section 211 of the Indian Succession Act an executor is the legal representative of the deceased for all purposes, and all the property of the deceased vests in him even before probate is granted. The probate of a will is operative only as the authenticated evidence of the executor's title and not as the foundation thereof, for he derives his title from the will itself, and the property of the deceased vests in him from the moment the testator dies. Under Section 213, however, no right as executor can be established in any Court of justice without inter alia a grant of probate, and under Section 214 no Court can pass a decree against an heir of a deceased person for payment of his debt to any person who does not hold either probate or letters of administration or a succession certificate. It follows, therefore, that an executor before he proves the will may do almost all acts which are incidental to his office except those relating to suits in connection with the estate ; and when he has filed his petition for probate and the petition is turned into a suit as in this case, and while that suit is pending, there is no one legally entitled to receive or hold the assets or give valid discharges. As was pointed out in Watkins V/s. Brent (1835) 1 Mylne & Craig 97, there is no doubt that if the representation to the estate is in contest, and no person has been constituted executor, the Court interferes not because of the contest,, but because there is no proper person entitled to receive the assets. In this case the representation to the estate of the deceased Putlibai is in contest, and without saying anything with regard to the merits of the allegations and counter- allegations made in the suit, there can be no doubt that a bona fide litigation is pending between the parties.