1. This is an application for an order restraining certain authorities of the B.N. Ry. from making payments of money lying with them which are alleged to appertain to the estate of one Stanley Austin Cardigan Martin, deceased, and restraining Miss. E.A. Lumsden from withdrawing or receiving payments of the aforesaid money. The facts leading to this application briefly are as follows. Stanley Austin Cardigan Martin was an employee of the B.N. Ry. He died on 3rd December 1938 leaving a minor son. The petitioner is the deceased's brother, Leo Joseph Martin. He alleges that Stanley Martin executed a will before his death disposing of all his property. The property consists of the following items: (1) Money lying with the B.N. Ry. employees Mutual Benefit Fund, Kidderpore, Rs. 1500. (2) Money lying with the B.N. Ry. Mutual Family Death Benefit Fund Ltd., Bilaspur Rs. 2000. (3) Money lying with the B.N. Ry. being the provident fund, gratuity and unpaid salary, Rupees 25,240.11-0.
2. The petitioner is one of the legatees under the will and he has applied for the grant of letters of administration with a copy of the will annexed. According to the terms of the will, all the property left by the deceased is given to the mother of the deceased and to the petitioner except a sum of Rs. 5000 which the petitioner is directed to spend for the 'education and wants of the deceased's minor child Ian Martin'. The petitioner states that Miss Lumsden who is the sister of the deceased wife of the testator is about to withdraw the different sums mentioned above from the B.N. Ry. on the ground that she has been appointed a guardian of the minor and on the ground that the minor has been appointed a nominee to whom these different sums are to be paid on the death of the testator. The petitioner's case is that these sums should be disposed of in accordance with the terms of the will and that there should be an injunction restraining Miss Lumsden from withdrawing these sums and restraining the various authorities with whom these sums are lying, from paying them out until the disposal of the application for letters of administration. Miss Lumsden opposes this application. The first ground taken on her behalf is that the application is not maintainable at law. Secondly, she says that even if this application is maintainable, no circumstances have been established which would justify the Court in granting the injunction prayed for.
3. I shall consider first the question regarding the maintainability of this application. I have no doubt that this application is not one which can be made under Order 39, Civil P.C. It is clear from the provisions of Order 39, Rule 1 that before an application for injunction can be granted under that Rule the applicant must show that the property with respect to which an injunction is prayed for is property in dispute in a suit. Now, this application has been made in a proceeding for the grant of letters of administration. In such a proceeding, it cannot be said that there is any property in dispute. No question regarding title to property can be decided in an application, for probate or letters of administration. This principle has been affirmed in a large number of cases of this Court. There is thus no property in dispute in the application for letters of administration out of which the present application arises. The application for injunction, therefore, is not one which can be brought within the scope of Order 39, Rule 1. I am supported in this view by the decision of this Gourfc in Nirode Barani Debi v. Chamatkarini Debya (1915) 2 A.I.R. Cal. 565.
4. Although the application cannot be brought within the scope of Order 39, Rule 1, this Court is not powerless to grant an injunction otherwise than in accordance with the provisions of Order 39, Rule 1 if a proper case is made out. It has been held that this Court, being a Chartered High Court, has an inherent jurisdiction to grant injunctions operating in personam under circumstances and conditions other than those set out in the Civil P.C., where the ends of justice so require: vide Mungle Chand v. Gopal Ram (1907) 34 Ca 101. Bearing this in mind, I propose to examine whether the applicant has made out a good case which would justify me in exercising this inherent jurisdiction. It has been proved from the affidavits and the correspondence that out of the sum of Rs. 25,240.11-0 confined in the third item of property a sum of Rs. 19,600 is lying to the credit of the deceased in the Provident Fund of the B.N. Railway. This sum is accepted by learned Counsel for both sides as being correct. Now this amount is affected by the provisions of the Provident Funds Act (Act 19 of 1925). Section 5 (1) of this Act states that notwithstanding any disposition, whether testamentary or otherwise by a subscriber to a Railway Provident Fund of the sum standing to his credit in the Fund or any part thereof, any nomination duly made in accordance with the rules of the Fund, which purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber, shall be deemed to confer such right absolutely until such nomination is varied by another nomination or is expressly cancelled by the subscriber. It is admitted that the deceased nominated his son Ian Martin as being the person to whom the sum should be paid. That being so, the disposition by the testator in his will cannot affect this sum. The railway authorities have written that they will not pay this sum to anybody until a proper guardian is appointed by the Court of the minor, I an Martin and that they propose to pay this sum to such guardian. In my opinion, this sum of Rs. 19,600 does not form part of the estate of the deceased and it cannot be disposed of by the deceased in his will. That being so, there should be no injunction with respect to this amount.
5. As regards the other sums of money lying with the B.N. Railway Employees Mutual Benefit Fund, Kidderpore, and the B.N. Railway Mutual Family Death Benefit Fund Ltd., Bilaspur, and as regards the balance of the money lying with the B.N. Railway as gratuity and unpaid salary, there is a substantial question involved regarding whether these sums form the assets of the deceased's estate or whether they are the property of the minor son of the deceased irrespective of the will alleged to have been executed by the deceased. The deceased appointed his son as his nominee to receive the amount lying to his credit in the Mutual Benefit Fund and the Mutual Family Death Benefit Fund. But whether this nomination would prevail against the administrator or executor of the estate of the deceased is a question of some difficulty and it will have to be decided in proper proceedings for that purpose. I do not express my opinion one way or the other on this point. Further, it is pointed out on behalf of Miss Lumsden that she will challenge the validity of the will. In these circumstances, I think that it is essential that no one should be permitted to receive these sums until the question of the validity of the will and the representation to the estate of the deceased is decided. I think this is a fit case in which the inherent jurisdiction of the Court to grant an injunction should be exercised. I accordingly direct that Miss Lumsden be restrained from withdrawing these sums, that is to say from withdrawing any of the aforesaid sums other than the sum of Rs. 19,600 till the final disposal of the application for the grant of letters of administration or until further orders.
6. The Secretaries of the B.N. Railway Employees Mutual Benefit Fund, Kidderpore and of the B.N. Railway Mutual. Family Death Benefit Fund Ltd., Bilaspur, and the Chief Auditor of the B.N. Railway, Kidderpore, are also hereby restrained from making any payment of any of the aforesaid sums other than the sum of Rs. 19,600 mentioned above to any person till the final disposal of this application for letters of administration or until further orders. There is no order of injunction restraining any one from receiving or paying the sum of Rs. 19,600. In the circumstances of this case I consider that the costs of all parties to this application do come out of the estate.