PROMILA BALA DEBI Vs. JYOTINDRA NATH BANERJI

JUDGEMENT

(1.) This is a Rule for the appointment of an administrator pendente lite under Section 34 of the Probate and Administration Act during the pendency of an appeal lodged in this Court against the decree for grant of probate in respect of the estate of one Haricharan Mukherjee who died on the 25 February, 1921.

(2.) On the 29 June, 1921, the executors applied for probate of the alleged will. On the 20th July, 1921, the objectors prayed for the appointment of an administrator pendente lite and five days later their application was granted, as the District Judge recorded the opinion that the grounds urge for the appointment of an administrator pendente lite were very strong. On the 27 July, 1921, upon the joint application of all the parties concerned, Babu Bibhuti Bhushan Banerjee was appointed administrator pendente lite on a fixed remuneration of Rs. 60 a month. The application for probate was strenuously contested; but ultimately judgment was pronounced on the 25 May, 1923, in favour of the will. On the 28 May, 1923, an order made for the issue of probate and probate was actually issued on the day following. On that day, an application was made to the District Judge by the unsuccessful caveators in order that proceedings might be stayed, so as to enable them to lodge an appeal in this Court and obtain an order for stay. The District Judge stated, however, that possession had already been delivered by the admininstrator pendente lite to the executors. The appeal was lodged in this Court on the 29 May, 1923 and two days later the Rule now under consideration was issued. In answer to the Rule, the executors have contended that as possession has been obtained by thorn from the administrator pendente lite further action should be taken by this Court.

(3.) We are of opinion that the circumstance that the executors have managed to obtain possession from the administrator pendente lite with what has been described as unusual speed should not affect the decision of the question whether the estate in litigation should or should not be secured during the pendency of the appeal in this Court. We may add that the parties are not agreed as to whether entire estate has boon delivered by the administrator pendente lite to the executors and there sooms good ground for the assertion made by the appellants that the executors managed to obtain possession from the administrator pendente lite even before the probate had been actually issued; these matters, however, are not material for our present purpose. The judgment of this Court in Hukum Chand Boid v. Kamalanand Singh (1906) 33 Cal. 927 which was applied in Sati Nath V/s. Tatanmani (1912) 15 C.L.J. 335, makes it abundantly clear that the Court of Appeal will not allow itself to be paralysed by a successful endeavour on the part of the litigant to obtain possession in view of an apprehended appeal to be followed by a stay order.