BHIKHARI MAHTON Vs. MTBUDHO KUER

JUDGEMENT

(1.) Petitioner Bhikhari Mahton filed an application for probate in the Court of the District Judge of Patna on 29 February 1944. The will of which probate was asked for was alleged to have been executed by one Girdhari Mahton who according to the petitioner died on 7 February 1944. Some of the near relations of the deceased appeared in response to citations issued by the Court and they filed objections. The probate case was accordingly converted into a title suit and necessary issues were settled. On 27 June 1945, at the instance of the objectors, the learned District Judge appointed the petitioner administrator pendente lite under Section 247, Succession Act. The appointment was in the following terms as will appear from order No. 29 dated 27 June 1945: The advocate for the objector agrees to the appointment of the applicant as an administrator. The applicant is therefore appointed administrator pendente lite under Section 247, Succession Act. He is directed to furnish security to the extent of Rs 500 with one surety of the like amount. He shall render accounts to this Court whenever called upon to do so. A draft security bond was filed and it was accepted after the Nazir of the Court who checked it had submitted his report. The probate proceedings went on and the case was transferred to the file of the Additional District Judge of Patna on 3 April 1946. The learned Additional District Judge passed final orders on 24 March 1947. The application for the grant of probate was rejected by him. After the disposal of the probate case the objectors filed a petition praying for delivery of possession by the administrator pendente lite. The petitioner who was the administrator pendente lite opposed this application. The learned Additional District Judge heard the parties and by his order dated 2 June, 1947 directed issue of writ of delivery of possession in favour of the objectors who admittedly are the natural heirs of deceased Girdhari Mahton. The learned lower Court further heard the parties when an objection was filed on behalf of the petitioner against the order directing delivery of possession to the legal heirs of Girdnari Muhton. The matter was disposed of by the learned Additional District Julge on 4 July 1947. The order already passed was confirmed. This has given rise to the present civil revision.

(2.) It has been contended on behalf of the petitioner that the only issue before a Probate Court is whether the will his been proved to be genuine and duly executed and that the Court has no concern with the devolution of property. This is the principle which has been laid down in the case of Sarda Prasad Tej v Triguna Charan Roy . We are, however, not concerned with this principle in the present case. The learned Additional District Judge against whose order the present revision has been filed has n it decided as to who should be the legal heirs of the deceased. As a matter of fact, it would appear that the objectors in whose favour the probate case has been decided are admittedly the heirs of the deceased. In the present case an administrator pendente lite was appointed by the Court and the Court had ample authority to do so. Section 247, Succession Act, is quite clear on the point. I may reproduce the section here. It is worded as follows: Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, 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, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction.

(3.) The position of an administrator pendente lite was examined in the case of Gour Moni Dassi and Ors. V/s. Baroda Kanta Jana reported in A.I.R. 1919 Cal. 980. Their Lordships of the Calcutta High Court observed in this case that the position of an administrator pendente lite in probate proceedings is closely analogous to that of a receiver in a partition suit. In the present case, we are not at all concerned with the question as to whether the appointment was properly made or not. In fact, from what has been stated above it will be seen that really speaking both the parties agreed and the learned District Judge made the appointment in pursuance of such agreement. The claim of the petitioner is that he was in possession of the disputed property and that no possession was delivered to him by the Court when the latter appointed him under Section 247, Succession Act. According to the learned advocate for him when the probate proceedings terminated the appointment of administrator pendente lite automatically came to an end, and the Court had no power to direct the petitioner to deliver possession to the successful party. In the alternative, it has been argued that the petitioner may be allowed to continue as administrator pendente lite until the disposal of the appeal which he has filed against the order of the learned Additional District Judge refusing to grant a probate of the will. In the case of Sm. Pramila Bala Devi v. Jyotindra Nath Banerjee and Ors. reported in it has been held by a Division Bench of the Calcutta High Court that the duties of an administrator and receiver pendente fete commence from the order of appointment and, if the decree in the action is appealed from, do not cease until the appeal has been disposed of. Their Lordships further held that in the absence of any appeal the functions of an administrator pendente lite terminate with a decree pronounced in favour of a will and do not continue until the executors obtain probate. Under the express provisions of Section 247, Succession Act, under which the appointment in the present case was made every administrator pendente lite "shall be subject to the immediate control of the Court and shall act under its direction." In the present case, the petitioner was in possession of the property as an administrator pendente lite and the Court has ordered him to divest himself of that possession and make over the possession to the legal heirs of the deceased. Whether the petitioner held the property prior to his appointment under Section 247, Succession Act, and if he held the same, in what capacity he held it are questions which do not fall to be considered here. It is not that he is treated as a trespasser and is asked to deliver possession to the legal heirs. In directing him to deliver up the possession of the property the Court was dealing with him as an administrator pendente lite. In my opinion, it is clear that be cannot be heard to say that he was already in possession of the property though in a different capacity. As soon as he agreed to become an administrator pendente lite, he submitted to the jurisdiction of the Court, and it was quite proper on the part of the Court to pass the order which has actually been passed in the case If the petitioner refuses to comply with the order directing him to deliver possession to the objectors opposite party, he is liable to be sued as a quasi executor de son tort.