1. This is an appeal against the order of the District Judge of Nellore on an application filed in O. P. No. 4 of 1919, a petition for the grant of probate of a will dated 22-7-1918 of one Venkatanarasa Reddi who died leaving behind him three widows, three daughters and two divided brothers. The first widow is the applicant for probate of the will which was registered during the lifetime of her deceased husband. To the petition, her co-widows, the daughters of the deceased and his brothers were made parties. An application was made pending the petition purporting to be under Sections 247 and 268, Succession Act and Sections 94 and 151 and Order 40, Rule 1, Civil P. C., for the appointment of an interim administrator or receiver to take possession of the entire estate and manage the same during the pendency of the probate proceedings.
2. The estate comprises admittedly considerable extent of immovable property. The deceased was entitled to a third share. The properties had not been divided by metes and bounds and it is common ground that on the date of the petition the properties were in the possession of the two divided brothers who were respondents 6 and 7 in the petition. The application was made on the ground that it was necessary to secure and preserve the properties pending the disposal of the proceedings, having regard to the magnitude of the estate and the hostile attitude taken up by respondents 6 and 7, the brothers. Their attitude was based on a will which they set up alleged to have been executed by the deceased on 15.8.1948, a day before he died. This will has not been registered. It was alleged in the affi-davit filed in support of the application that respondents 6 and 7 had conceded movable properties of large value and realised large amounts by way of income and sale of movables and had manipulated the accounts to suppress the true extent of the estate and to minimise the income accruing therefrom. The petitioner's co-widows did not have any objection to the appointment of a receiver and the opposition was entirely from the brothers, respondents 6 and 7. The learned District Judge found that the applicant had a prima facie case in view of the registered will on which she was relying as against the unregistered will relied on by the contesting respondents. The learned Judge thought that as the two brothers were admittedly entitled to two-thirds of the estate, it would be unfair and improper to oust them from possession and management and to vest the entire estate in the hands of a third party. He, however, was convinced that it was necessary to safeguard the interests of the petitioner by appointing a local advocate as receiver but with limited functions, namely, to have general supervision over the management of the estate, to take an inventory of the movables and out-standings and to receive a third share of the net income from the two brothers (respondents 6 and 7) and deposit the same immediately into Court. Respondents 6 and 7 were directed to give adequate facilities to the receiver for supervising their management and to make the accounts available to him for scrutiny. Respondents 6 and 7 have appealed against this order.
3. On their behalf Mr. Kuttikrishna Menon first raised a preliminary objection to the maintainability of the application in the lower Court on the ground that in probate proceedings no receiver could be appointed, because it could not be said that any right to property was in dispute in such proceedings. Reliance: was placed on the decision in Namagiri Am-mal v. Subbarao : AIR1949Mad46 . At the outset wemay mention that this objection does not appear to have been raised in the lower Court; nor in the memorandum of appeal to this Court in the first instance. It was clearly an afterthought. There was another suit which had been filed by the other widows for a partition of the properties to which the widow who had applied for probate and the daughters and the brothers were all parties. If the technical objection to the sustainability of the application had been taken in the Court below, a similar application would have been filed in the suit for partition. In these circumstances, we do not think it fair or proper to permit the appellants to raise this technical objection.
4. We may also add that we do not see much substance in this objection. In Namagiri v. Subbarao, I. L. R. (1948) Mad. 494 : A. I. R. 1949 Mad. 45 the probate proceedings in the first Court had come to a close. The Court granted a probate and there was a person clothed with due authority to administer the estate. It was clear, therefore, that the estate was not in need of any adequate representation. In that case the application was for an injunction restraining the person who had been granted probate from taking possession of the properties of the deceased and administering his estate. Having regard to these facts, it was held that there was no scope for the application being granted either under Order 39, Rule 1, Civil P. C., or under any inherent jurisdiction of the Court. It was pointed out intar alia that under Section 247, Succession Act, 1925, pending any suit touching the validity of the will of a deceased person 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. It has also been held that the position of euch an administrator would be analogous to that of a receiver appointed under Order 40, Rule 1, Civil P. C. In the case before us the probate has not yet been granted to any one and therefore it can be said that there is no adequate representation of the estate of the deceased. To safeguard such an estate, it cannot be said that it is not just and proper that a person should be appointed receiver or administrator pendente lite.
5. It was next urged by Mr. Kuttikrishna Menon that no case had been made out for the appointment of either a receiver or an administrator pendents lite. We do not agree. We have already mentioned that the estate is of considerable magnitude and the income from the lands most of which, it was represented, was under the Pannai cultivation of the appellants,must be considerable. In view of the hostile claim being set up by the appellanta there is every probability of attempts to secret the income and otherwise to defeat the claims of the petitioner in the probate proceedings. We agree with the learned District Judge that in view of the registered will in her favour, the applicant must be deemed to have a prima facie case.
6. Actually the learned District Judge has not in any manner affected the rights of the appellants. He has not ousted them from possession or management. All that the learned Judge has provided for ia a supervision of the management by the appellants in the interests of the persons who would ultimately be held entitled to the share of the deceased. A member of the Bar has been appointed to do that supervision. Obviously, for such supervision he must be entitled to look into the accounts and to take other steps to prevent the income of the property from being secreted or otherwise misappropriated.
7. It was contended that a receiver with powers such as have been conferred by the learned District Judge is not contemplated under Order 40, Rule 1, Civil P. C. But, in our opinion, the language of Order 40, Rule 1 is wide and elastic enough to justify an order of the kind made by the learned District Judge. Under clause (d) of Rule 1 of Order 40 the Court can confer upon the receiver all such powers as may be necessary for the realisation, management, protection and preservation of the property. This is all that the learned Judge has done by his order appealed against.
8. Two decisions of the Calcutta High Court in Jogendralal Chowdry v. Atindralal Chowdry, 13 C. L. J. 31 : 2 I. C. 638 and Bhuban Mohini Debi v. Kiran Bala Debi, 13 C. L. J. 47 : 9 I. C. 215 were cited to us as well as the decision of the Privy Council in Benoy Krishna v. Satis Chandra, 65 Cal. 720 : A.I.R. 1928 P. C. 49 but after all we must come to a conclusion on the facts of the particular case whether the appointment of a receiver is just and convenient.
9. It was finally said that the order giving directions to the receiver was vague If in any respect the directions given are defective, the parties including the appellants are always at liberty to approach the lower Court for further and better directions.
10. There is no reason to interfere with theorder of the lower Court. The appeal is there.fore dismissed with the costs of respondent 1.The memorandum of objections is also dismissed with costs.