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Gour Moni Dassi and ors. Vs. Borada Kanta Jana - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.657
AppellantGour Moni Dassi and ors.
RespondentBorada Kanta Jana
Excerpt:
probate and administration act (v of 1881), section 34 - administrator pendente lite, position of--probate court, power of, to direct administrator pendente lite to advance to widow contesting will money for maintenance and conduct of case. - .....the will that has been propounded partly on her own behalf and partly on behalf of her two minor sons) sums reasonably sufficient for their maintenance and also sufficient to enable the widow to contest the will and put her defence adequately before the court. the learned district judge appears to be of opinion that there is nothing in the law which enables him to make such an order. but here it appears to us that he has fallen into error. the position of an administrator pendente lite in a probate proceeding is closely analogous to that of a receiver appointed for instance in a partition suit, and section 34 of the probate and administration act gives ample power to the court to direct the administrator pendente lite to do such acts as may be necessary in the interests of the.....
Judgment:

1. This Rule is directed against an order of the District Judge of the 24-Pergannas, by which he has declined in certain Probate proceedings to make an order upon the Administrator pendente lite to advance to the widow of the deceased (who was contesting the Will that has been propounded partly on her own behalf and partly on behalf of her two minor sons) sums reasonably sufficient for their maintenance and also sufficient to enable the widow to contest the Will and put her defence adequately before the Court. The learned District Judge appears to be of opinion that there is nothing in the law which enables him to make such an order. But here it appears to us that he has fallen into error. The position of an Administrator pendente lite in a Probate proceeding is closely analogous to that of a Receiver appointed for instance in a partition suit, and Section 34 of the Probate and Administration Act gives ample power to the Court to direct the Administrator pendente lite to do such acts as may be necessary in the interests of the several parties to the proceedings. In this case it appears that the annual income from the immoveable property alone exceeds or at least amounts to ten thousand rupees. It also appears that there is cash money in hand and also money lent out at interest. By the Will that has been propounded the widow, we are informed, has been allowed maintenance only at the rate of Rs. 20 a month and the share in the estate that would fall under the ordinary law of inheritance to her two sons has been reduced from, say, seven annas to five. It is obviously essential that in the interest of the widow and her two minor sons the person who propounds the Will should be required to prove that it was in fact duly executed by the testator and that every opportunity should be given to the widow on her own behalf and on behalf of her two minor sons to contest that position.

2. We, therefore, direct that at the moment one thousand rupees be advanced to the widow, the payment to be made within this day fortnight, and that thereafter under the orders of the Court such sums as may be found to be reasonably necessary for the maintenance of the widow and her children and for the proper conduct of their defence be advanced to them from time to time. The Rule is accordingly made absolute with costs, three gold mohurs. Let the record be sent down at once.


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