Renupada Mukherjee, J.
1. The present dispute is an offshoot of an application for probate originally filed by one Amal Chandra Mustafi in the Court of the District Judge of 24-Per-gannas. Subsequently one Guruprosad Mustafi also joined as a co-applicant for the probate. The will in question purports to have been executed by one Hem Nalini Devi in October, 1950. Hemnalini had three sons, Profulla, Nirmal and Shoilesh of whom the first two are dead. Amal is son of Nirmal and Guruprosad is son of Profulla. As the application for grant of probate had become contentious, the application was subsequently registered as a plaint. Summons was duly served on Shoilesh and he appeared and contested the proceedings.
2. During the pendency of the suit in the Court of the District Judge an application for appointment of an administrator pendente lite in respect of the properties covered by the will was filed by the plaintiffs on the allegation that defendant Shoilesh had taken possession of the ground floor portion cf one of the properties, viz., the house at 279/3, Upper Circular Road, and after having inducted tenants in that portion he was not paying anything towards the seba puja of the Deity or towards Corporation taxes and rates. This application was opposed by Shoilesh who contended that the house property in question was a debottar property, having been dedicated to Deity Sri Sri Iswari Raj Lakshmi Thakurani by the alleged testatrix as early as in 1939. The contention of the objector, therefore, was that no administrator could be appointed so far as this property was concerned, because the testatrix could not make any valid disposition in respect of it, having already dedicated it in favour of the Deity. The contention of the objector further was that it was not expedient to take this property out of the possession of the objector and to make it over to the possession of the administrator. The learned District Judge by his order, dated 28-11-1955 repelled these contentions of the objector and directed that an administrator pendente lite should be appointed in respect of all the properties covered by the will including the disputed liouse. Some subsequent orders recorded by the District Judge would show that a lawyer of Alipur, Sri Amulya Charan Ganguli, was appointed administrator in respect of the properties covered by the will including the disputed house after he had furnished the requisite security. This appeal has been preferred by defendant No. 1 in the Court below challenging the validity and propriety of this appointment.
3. Mr. Manindra Nath Ghosh appearing on behalf of the appellant has submitted two principal contentions before us. In the first place, he has argued that the learned District Judge was wrong in holding that the question of the disposing power of the testatrix could not be raised by the objector in any way. Secondly, he has argued that upon the facts of the case as made out before the District Judge he should have held that it was not necessary to appoint an administrator pendente lite in respect of the disputed house. We shall take up these two contentions one after another.
4. As regards the first contention put forth, onbehalf of the objector appellant we must say that ordinarily no probate Court should enter into a question of title, where conflicting claims of title are putforth in respect of any property covered by a will.But where a party applies for appointment of an administrator pendente lite, and the objector to suchan appointment puts forth a claim to the propertyapart from the will, such claim should be considered,at least prima facie, for the purpose of allowing or;refusing the prayer for appointment of an administrator pendente lite. Dangerous consequences mayfollow if the Court totally refuses to enter into thequestion of title altogether, because it would be veryeasy for! a particular party to get an administratorpendente lite appointed in respect of the propertyof another person and to take it out of his possessionsimply because it may happen to be included in thewill of a testator,
5. Coming to the facts of this particular case we find that the testatrix Hemnalini Devi executed a deed of dedication as early as on 13-6-1939, i.e., nearly eleven years before the execution of the alleged will. The disputed house along with another property appears to be the subject-matter of the dedication. Hemnalinj appointed herself as the first sebait, and after her death the sebaitship was to devolve on her three sons including Shoilesh. Of those three sons Shoilesh alone is alive at the present time. It was brought to our notice that Hemnalini executed two more deeds of dedication subsequently. We are not really concerned with those two subsequent deeds in the present litigation. Prima facie, the deed of dedication appears to be an absolute one. The disputed property also appears to be included in the will executed by Hemnalini in 1950. The question, therefore, naturally arises whether after having executed a deed of dedication in 1939 Hemnalini retained the power of incorporating the disputed property in the will of J950. We are not entitled to say anything finally on that question in the present appeal. All that we mean to say is that for the purpose of appointing an administrator pendente rite we should look into this deed of dedication on which the objector appellant is relying for the purpose of questioning the propriety of the appointment. The District Judge thought that no such question could be raised in any manner in this proceeding. In our opinion, that is an erroneous proposition of law propounded by the learned District Judge.
6. In this connection we may refer to a case reported in Atulabala Dasi v. Nirupama Devi, : AIR1951Cal561 (A). In that case it has been held that although it is not for the probate Court, while granting letters of administration, to interpret the will for the purpose of deciding the question of title, the Court will have to be satisfied, prima facie, that the will contains provisions which affect properties in respect of which a conflicting claim is made, if an application for appointment of an administrator pendente lite is made. On the analogy of that case we may say that the question of title and possession should also be considered prima facie in a limited way in connection with an application . For appointment of an administrator pendente lite, if the objector to such an appointment sets up a title independently of the will. The first point raised by Mr. Manindra Nath Ghosh, therefore, succeeds, and we are of opinion that the appellant is entitled to raise the question of his title and possession, although in a limited way. As he was not allowed to do this by the Court below, he suffered prejudice.
7. Coming now to the second question, viz., whether on the facts of this case it is expedient that an outsider should be appointed administrator pendente lite, we are of opinion that the learned District Judge should not have appointed an outsider lawyer as administrator pendente lite so far as the disputed house is concerned. This house is a four storeyed building the ground floor portion of which only has been let out. It is an admitted fact that tenants have been inducted into that portion by the appellant. Mr. Pankaj Coomar Ghosh appearing on behalf of the opposite party has submitted before us that the other floors are occupied by different sebaits. As the tenants have been inducted by the appellant who is claiming to be the sole sebait under the deed of dedication of 1939, and who is admitted to be at least a co-sebait, we are of opinion that the District Judge should not have appointed an outsider as administrator pendente lite so far as the disputed house is concerned. Such an appointment would only involve unnecessary costs and would also disturb the possession of a person who is admittedly a co-sebait. Under these circumstances, we think the appointment of the administrator pendente lite should be cancelled so far as this particular property is concerned.
8. At the same time we are of opinion that there should be some safeguard so that this property may not be in any danger of waste or mismanagement. We, therefore, cancel the appointment of the administrator pendente lite so far as the disputed house property is concerned with the following directions. The appeal is allowed and the order of the learned District Judge which is under appeal is modified to the extent that the appointment of the administrator pendente lite in respect of the house at 279/3 Upper Circular Road is set aside. The administrator must make over possession of this house to the objector appellant within a month from the date of the arrival of the records in the Court below and he will also submit full accounts of the period of his management in the Court below within that date. The appellant will realise rent from the tenants of this property and will submit accounts in the Court below of all realisations and also of such expenses as may be reasonably incurred by him in the management of the property. The appellant is further directed to pay all municipal taxes and rates quarter by quarter and satisfy the Court below that such rates and taxes are paid. All surplus money which may remain in the hand of the appellant after meeting the outgoings must be deposited in the Court below quarter by quarter. If these directions are not properly carried out by the appellant then it will be open to the opposite party to renew their application for appointment of an outsider as administrator pendente lite in respect of the disputed property in the Court below. The probate case will be heard by the Court below as expeditiously as possible. Let the records be sent down to that Court at an early date.
9. Parties will bear their own costs in this Court.
B.N. Banerjee, J.
10. I agree.