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TMI Blog1932 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. Plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 lis 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. 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. Bellew (1865) 34 L.J.P.M. A. 125 s. c. 4 Sw. Tr. 58 Sir J.P. Wilde intimated that he would not in future follow the established practice of requirin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estate of Ranchhoddas Tribhowandas Mody, the deceased husband of the testatrix, the estate is valued at about rupees twenty-three lakhs. The estate mainly consists of Government Securities the value of which with interest is estimated at rupees two lakhs, of shares of various companies which together with dividends are valued at about rupees two and a half lakhs, Immovable properties worth about rupees four lakhs, and a large number of claims under mortgages, four of which were taken in the name of Ranchhoddas Mody and about thirteen in the joint names of Ranchhoddas Mody and his wife the testatrix. In respect of the mortgages standing in these joint names about eleven suits were filed by the Receiver appointed in that suit, and in place of the Court Receiver who filed them the name of the testatrix was subsequently substituted, and the testatrix and plaintiff No. 3 were appointed joint receivers without security and without remuneration. Amongst these mortgages are mortgages executed by plaintiff No. 1. It appears that he had equitably mortgaged his properties at Queen's Road and Haines Road to Ranchhoddas Mody for KB. 2,11,980 and ₹ 71,815 respectively with interest. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administrator pendente lite where there is a person named in the will as executor whose appointment is not questioned and who can discharge the functions of an administrator: see Mortimer v. Paull (1870) 2 P. D. 85. In this case, however, the appointment of the executors is questioned, and their title is in dispute because the will itself is challenged on various grounds. Under the circumstances there should be, in my opinion, a grant of administration pendente lite. 6. The last question is, who should be the administrator or administrators pendente lite ? I have to be satisfied as to the fitness of such an administrator or such administrators. Plaintiff No. 1 is a solicitor of this Court and has prepared the will, and if he was the sole executor, the Court would appoint a receiver of the estate as was done in Hamilton v. Girdleston [1876] W.N. 202 There are, however, co-executors along with plaintiff' No. 1, But nevertheless plaintiff No. 1 is a debtor to the estate of the deceased. He claims a large sum of costs against the estate, and says in his affidavit that he informed the testatrix that he would claim his professional costs even if he acted as executor which he wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion, this is not a case in which I should make an appointment out of the plaintiffs. In saying this I wish to make it clear that the Court is making no imputation whatsoever against the plaintiffs or any of them. An instance was cited to me in which the late Mr. Justice Russell in T. I.J. 8 of 1903 appointed one of the executors of a disputed will along with another administrators pendente lite, but, as I have said before, each case must stand on its own facts and circumstances, and the facts and circumstances in that case are not before me. It is, in my opinion, in the interests of all parties to appoint an impartial person as an administrator pendente lite, and the Court Receiver is an officer of the Court who is independent of and is bound to be indifferent between the contesting parties. Moreover, under Section 247 all the powers that he exercises are subject to the immediate control of the Court and he acts under its direction. 7. Under the circumstances I will make an order in terms of prayers (1) and (2) of the notice of motion. Costs of all parties to come out of the estate of the deceased Putlibai, those of the executors as between attorney and client. 8. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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