1. The order which we are invited to discharge was made by the Court below at the instance of the respondent under Section 90 of the Probate and Administration Act. The husband of the respondent executed a will on the 21st November 1874, and died many years after, about the year 1899. Shortly after his death an application was made by the respondent for Letters of Administration to his estate, with copy of the will annexed, obviously because no executor had been appointed under the will. Administration was granted and since then the widow has been in possession of her husband's estate under the terms of the will.
2. On the 26th September 1905 she made an application to the District Judge under Section 90, Sub-section 3 Clause (a) of the Probate and Administration Act. That section lays down in the first place, that an executor or administrator has,' subject to the provisions of this section, power; to dispose, as he thinks fit of all or any of the property for the time being vested in him under Section 4.' This is qualified by the provision that an administrator may not, without the previous permission of the Court by which the Letters of Administration were granted, mortgage, charge or transfer by sale, gift or otherwise any immovable property for the time being vested under Section 4, or lease any such property for a term exceeding five years. In the case before us, the particular property which the respondent seeks authority to sell is described as the first parcel named in the will. The will expressly provided that the widow was to remain in possession of this parcel but was to have no power to sell, or mortgage it or to make a free gift thereof. She alleged, however, that since the death of her husband she had incurred debts for necessary purposes, such as her own maintenance, and the marriage of the daughter of the appellant. She alleged further that it was impossible for her to maintain herself any longer out of the income of the property and that it was consequently necessary for her to obtain authority from Court under Section 90 of the Probate and Administration Act to sell the estate. These allegations were challenged in the Court below and upon the evidence adduced by both sides, the learned District Judge came to the conclusion that the objector had done all he could to harass the petitioner and to put obstacles in the way of her living comfortably in her old age. On this ground as also upon the finding that the objector did not actually deny the existence of the alleged debts or of the necessity for them, the District Judge held that this was an appropriate case for an order for sale under Section 90.
3. The objector has now appealed to this Court and the principal point which has been urged on his behalf is that Section 90 has no application to the admitted facts of the case. It has been argued that the object of Section 90 is to enable the Court to make an order for alienation of property in respect of which administration has been obtained, only when such an order is essential for the purpose of enabling the administrator to perform his duties. In support of this contention reliance has been placed upon the decision of this Court In the goods of Nursing Chunder Bysach 3 C.W.N. 635. Mr. Justice Sale pointed out in that case in which an application, had been made by the administratrix, a Hindu widow, for leave to mortgage certain premises left by the deceased that as the estate had been fully administered and there were no debts or legacies of the deceased to be paid, an application under Section 90 was not maintainable. In our opinion, this principle is applicable to the circumstances of the present case. It is not suggested that there are at the present time any debts of the husband of the respondent to be paid; nor is it suggested that there are any outstanding debts to be collected; nor is there anything to show that there are any legacies to be paid. The estate has been completely administered, and no order under Section 90 is needed for the purposes of administraion. The learned Vakil for the respondent, however, ingeneously suggested that widow is entitled to maintain herself out of the income of the properties covered by the will, that her maintenance is, therefore, a charge on the estate and that consequently the payment of such maintenance may be regarded as an act of administration. It was argued in substance that the case might be treated as analogous to one in which administration is obtained by a stranger who is under an obligation to pay maintenance out of the proceeds of the estate to the widow or some other female relative of the deceased. It is obvious that there is no foundation for this contention, in the present case. The widow is now in possession under the terms of the will which entitles her, to enjoy during her life-time, the property in question either by actual possession, or by realization of rent. But the will expressly restricts her rights of alienation and provides that she is to have no power of sale, mortgage, or free gift. We are practically invited to reduce this provision to a nullity, and we are, therefore, unable to adopt the view that as the widow is entitled to maintain herself out of the property, she is at liberty to obtain authority from the Court to enable her to convert the estate into money, on the footing that such alienation may be treated as due administration of the estate. Upon the admitted facts, it is manifest that there is nothing to administer now, and if this be so, no order under Section 90 is necessary. On this ground, we must hold that the application made to the Court below was entirely misconceived, and that no order under Section 90 ought to have been made on the basis thereof.
4. The result, therefore, is that this appeal must be allowed and the order of the Court below discharged.
5. In the circumstances of the case we make no order as to costs, either in this Court or in the Court below.