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. 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 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. 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 anexecutor, nor did he raise any objection to the son acting in his capacity as executor, nor did he for more than one year between thedeath 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. 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.
4. The question which then arises is whether the necessity for a grant of administration pendente lite has been made out, and if it is, who should be appointed administrator pendente lite It appears that within a week after the death of the deceased, plaintiffs themselves filed a petition in this Court stating that it was necessary for the preservation of the estate that letters of administration may be granted to them under Section 253 limited to the collection and preservation of the estate and the giving of discharges for debts and claims due to the estate, but the petition was dropped. Plaintiff's say in one of the affidavits that the reason for dropping the petition was that the application was thought unnecessary as there was no real difficulty in recovering the debts and outstandings, and that as a matter of fact that had been done. Defendants on the other hand allege that the reason was that they objected and wanted letters of administration to be granted to the Court Receiver instead of to the plaintiffs, to which the plaintiffs objected. This allegation made by the defendants in para. 28 of their affidavit in support has not been specifically denied. The gross value of the estate, according to the schedule to the petition for probate, is about thirty two lakhs of rupees, and deducting the amounts and liabilities payable under the consent decree in suit No. 1869 of 1930 which was filed by defendant No. 2 in respect of the 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, immoveable 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 Rs. 71,815 respectively with interest. The due date having expired, the time for payment was extended. Thereafter, plaintiff No. 1 took reconveyances of the property from the testatrix about the end of December 1931 when the mortgage debt with interest stood at over three lakhs of rupees, and on the same day plaintiff No. 1 executed fresh equitable mortgages for the said amounts in favour of the testatrix. It was alleged, when the notice of motion was argued, that interest on those mortgages for seven months had been in arrears, but I have now been informed that since the argument commenced plaintiff' No. 1 has paid up all the arrears of interest. Interest is also due by other mortgagors. Rents have also to be recovered, and the testatrix and plaintiff No. 3 having been appointed joint receivers, plaintiff No. 3 in the absence of a fresh order appointing him sole receiver is not in law entitled to recover the rents which, according to the affidavits, amount to about Rs. 6,000 per month. It is also alleged that dividends have not been recovered. It is further alleged that books of account are in the plaintiffs' possession. It was also contended that if suits were filed by the executors no decrees could be passed pending the grant of probate. There is no dispute that various suits are pending, and that suits may have to be filed and interest and rents and dividends recovered, and there is also a large residue in favour of charity. The estate is of considerable value and extent, and for the safeguarding and preservation of it proper arrangements ought, in my opinion, to be made, especially when very wide discretionary powers have been given to the executors under a will which is challenged by parties who are interested in the estate.
5. The next question is what arrangement should be made. The general principle is that the Court does not as a rule appoint a receiver as against executors whenever they have obtained probate, unless there is gross misconduct or mismanagement and waste on their part. If they are rightly in possession and there is no dispute as to their title they will not be replaced by the Court Receiver except on very strong grounds. Their appointment itself shows that the testator had confidence in them, and the Court gives effect to the expression of the confidence reposed in parties by one who knew them best. It has also been held that the Court refuses to appoint an 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  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 would be entitled to. It has, however, been held by the Privy Council in Bai Gungabai v. Bhugwandas Valji that the insertion of a clause that the solicitor executor should charge for his professional work hardly raises any suspicion about the genuineness of the will. In view, however, of the position in which plaintiff No. 1 stands to the estate, his interests are to a large extent in conflict with his duties. Plaintiff No. 2, it is alleged, was a share-broker and an estate broker, and though at present he is in affluent circumstances, the allegation against him is that he is a friend of the other plaintiffs and has helped them in getting the testatrix to execute the will. This of course is an allegation which will have to be substantiated at the time of the hearing. Plaintiff No. 4 is a young man of about twenty to twenty-five years and is the son of plaintiff No. 3 and lives with his father, and plaintiff' No. 4 gets a legacy of between twelve to fifteen lakhs of rupees under the will. It is a well known principle that when executors propounding a will take a large and appreciable benefit thereunder, the Court treats the will with suspicion of more or less weight according to the facts of each case, and the onus lies on such an executor to prove to the satisfaction of the Court that the testator understood what he did and that it was his will, and no probate can issue unless the conscience of the Court is satisfied that the person propounding the will has led sufficient evidence which on a close and careful examination entirely removes that suspicion. This has been laid down in a series of cases such as Barry v. Butlin (1838) 2 M.P.C. 48 Vellasawmy Servai v. Sivaraman Servai (1929) L.R. 57 IndAp 96 32 Bom. L.R. 511 Rangavva v. Sheskappa (1926) 29 Bom. L.R. 327 and Mallappa v. Tipava : AIR1930Bom539 . The same principle has also been laid down in the case cited to me in Bai Gungabai v. Bhugwandas Valji. I have carefully considered whether the plaintiffs or any one or two or more of them should be appointed administrator or administrators pendente lite, and there is also the offer made to me through their counsel that they are willing to give security. It is, however, a general principle, though not an absolute rule of law, not to put a litigating party in position by granting administration pending the suit unless by consent of all parties, and, in my opinion, 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 agreed between the parties that plaintiffs Nos. 3 and 4 should remain undisturbed in occupation of the Ridge Road house and the contents thereof including the motor car subject to the rights and contentions of the parties. 1 further direct the receiver not to take possession of the family idol or idols at present until the further orders of the Court.
9. Receiver to act on the Prothonotary's certificate.