1949 (2) TMI 12 - HC - Indian Laws

Summary

Issues Involved:
1. Application for administration pendente lite concerning a Will.
2. Judicial discretion under Section 247, Succession Act.
3. Necessity for appointing an administrator pendente lite.
4. Precedents and principles guiding the appointment.
5. Allegations against the executor named in the Will.
6. Appointment of an impartial administrator.

Issue-wise Detailed Analysis:

1. Application for Administration Pendente Lite Concerning a Will:
The application was for an administration pendente lite touching a Will, with the power to grant such administration conferred on the Court by Section 247, Succession Act. The court noted that the words "may appoint" indicate judicial discretion, which must be exercised on established legal principles.

2. Judicial Discretion Under Section 247, Succession Act:
The court emphasized that discretion under Section 247 is judicial, not arbitrary, and should be exercised based on established legal principles. The section replaces Section 34 of the Probate & Administration Act of 1881 and is based on the Court of Probate Act, 1857. English decisions are authoritative and can be relied on for exercising sound discretion under this section.

3. Necessity for Appointing an Administrator Pendente Lite:
The court examined the necessity for appointing an administrator pendente lite, stating that necessity arises when there are assets to be collected, no representative to collect them, and bona fide litigation regarding the title to representation. The principle is that during litigation over executorship, the estate is in a state of intestacy, necessitating the appointment of an administrator to collect and manage the assets.

4. Precedents and Principles Guiding the Appointment:
The court reviewed several English cases, such as 'King v. King' (1801), 'Rendall v. Rendall' (1841), and 'Bellew v. Bellew' (1865), to establish principles for appointing an administrator pendente lite. The court noted that the practice of granting administration pendente lite requires showing necessity, aligning with the Court of Chancery's practice of appointing receivers during bona fide litigation.

5. Allegations Against the Executor Named in the Will:
Serious allegations were made against the executor named in the Will, including conspiracy, fabrication of the Will, and mismanagement of the estate. The court emphasized that these allegations, whether true or not, indicated a bona fide litigation concerning the validity of the Will. The executor's involvement and the allegations against him necessitated the appointment of an impartial administrator.

6. Appointment of an Impartial Administrator:
The court concluded that an impartial administrator should be appointed to ensure the proper management of the estate. The general rule is that a party unconnected with the suit is the most proper person to be appointed administrator pendente lite. Given the allegations against the executor and the need for impartiality, the court appointed the Administrator General of Bengal as the administrator pendente lite. However, the court allowed for the possibility of appointing a mutually agreed-upon individual before the order was finalized, provided it did not prejudice any party's right to appeal.

Conclusion:
The court exercised its discretion to appoint an administrator pendente lite, considering the necessity to manage and collect the estate's assets during the litigation. The appointment aimed to ensure impartiality and prevent unnecessary costs and disputes, ultimately appointing the Administrator General of Bengal with an option for a consensual appointment before finalizing the order.