This appeal is directed against an order by which the Court below has refused to grant an injunction in a proceeding for letters of administration of the estate of one Brojo Nath Dobey. The Appellant Nirodbarani Debi and the Respondent Chamatkarini Debi are daughters of the deceased. Shortly after the death of Brojo Nath Dobey, Nirodbarani applied for letters of administration to his estate. Thereafter, Chamatkarini made an application for probate of a Will alleged to have been executed in her favour by her father.
There were thus two counter-cases before the Court and the question of the genuineness and validity of the Will had to be determined in the first instance. Before the cases came on for trial, the Appellant Nirodbarani who had asked for letters of administration applied to the Court for an injunction to restrain her sister from alienating the properties of which she was in possession. The Court refused the injunction on the ground that r. 1 of Or. 39 of the Code of Civil Procedure had no application to a proceeding for letters of administration under the Probate and Administration Act of 1881. The substantial question for consideration in the appeal, consequently, is whether the injunction has been rightly refused.
On behalf of the Appellant, it has been contended that under sec. 83 of the Probate and Administration Act, the provisions of the Code of Civil Procedure are applicable to contentious cases, because that section provides that the proceeding shall take as nearly as possible the form of a suit according to the provisions of the Code of Civil Procedure in which the Petitioner for probate or letters of administration, as the case may be, shall be the Plaintiff, and the person who may have appeared to oppose the grant shall be the Defendant. Reference has also been made to sec. 55 of the Probate and Administration Act which provides that the proceedings of the Court of the District Judge in relation to the grant of probate and letters of administration shall, except as otherwise provided, be regulated, so far as the circumstances of the case will admit, by the Code of Civil Procedure. In support of the contention that the provisions of the Civil Procedure Code are applicable to probate proceedings, reliance has also been placed on the cases of Yeshwant Bhagwant v. Shanker Ram Chunder(1) and In the matter of Dawabi(2) in which a Receiver was appointed in proceedings for the grant of letters of administration, Watkins v. Brent(3) and Rendall v. Rendall(4) in which Receivers were appointed during the pendency of probate proceedings, and Nicholas v. Dracachis(5) and In the goods of Moore(6) where injunctions were granted during the pendency of a probate proceeding. Our attention has not been invited to any case in the Indian Courts in which an injunction has been granted under circumstances similar to those of the case before us.
The decision of the question raised must depend primarily upon the terms of Or. 39, r. 1, of the Code of Civil Procedure, assuming that the provisions of that Rule are applicable to proceedings under the Probate and Administration Act by virtue of sec. 55 thereof. It is essential for the application of r. 1 of Or. 39, that the property in dispute in the suit is in danger of being wasted, damaged or alienated by a party or wrongfully sold in execution of a decree. Consequently the Applicant for an injunction must satisfy the Court that the proceeding is a suit in which there is property in dispute and that the property is in danger of being wasted, damaged or alienated. The question, consequently, arises, whether a proceeding for probate of a Will or for letters of administration may rightly be held to be a suit in which property is in dispute. In our opinion, the answer must be in the negative. It has been repeatedly held, as appears from the cases of Arunmoyi Dasi v. Mohendra Nath Wadar(7), Jagannath v. Runjit Singh(8), Birj Nath v. Chander Mohan Banerjee(9) and Ochavaram Nanabhai v. Dolatram(10), that the only question in controversy in a proceeding in the Probate Court is that of representation of the estate of the deceased, and no question of title thereto, that is, the title of the deceased or of the conflicting titles alleged by the parties to the probate proceeding can be investigated by the Court. Consequently it would be, in our opinion, an undue straining of the language to hold that a probate proceeding is a suit in which there is property in dispute. The circumstance that in England an injunction has been granted in a probate proceeding is of no assistance to the Appellant, because the terms of sec. 25, sub-sec. 8, of the Judicature Act of 1873 are wider than the language used by the legislature in this country in r. 1 of Or. 39. We are clearly of opinion that the application made to the Court below by the present Appellant, was misconceived.
But we do not lay down the proposition that the Court is not competent, because it is a Court of Probate, to grant an injunction in any circumstances. In England, injunctions have been granted in cases of this description under r. 3 of Or. 50, of the Rules of the Supreme Court. There is a corresponding provision in the Code of Civil Procedure embodied in r. 7 of Or. 39. The proper procedure to follow in cases of this description is for the aggrieved party to apply to the Court for the appointment of an administrator pendente lite, under sec. 34 of the Probate, and Administration Act. It is not necessary for our present purpose to examine the scope of sec. 218 of the Indian Succession Act (which is reproduced in the Probate and Administration Act as sec. 34) and of sec. 239 of the Indian Sue-cession Act (to which there is nothing corresponding in the Probate and Administration Act). It is possible that the scopes of the two sections are different in the way; namely, the former section content plates an application by a party to the proceeding after the commencement thereof and gives the person appointed as administrator pendente lite power to deal with the estate, subject to the restrictions mentioned, whereas sec. 239 contemplates the possibility of an application by an stranger to the proceeding, an application before the commencement of the proceeding, and deals only with the question of the custody and preservation of the property. As we have said, the proper course to pursue in a case of this description is to make an application under sec. 34 of the Probate and Administration Act, and, in this view, it is unnecessary to consider whether the provisions of the Code relating to the appointment of a Receiver are applicable to cases of this description. In England, Receivers are appointed in the course of probate proceedings in respect of immoveable properties, while administrators pendente lite are appointed in respect of moveable properties of the deceased. In this country, the Legislature has made a single provision by which an administrator pendente lite appointed under sec. 34 takes charge of the entire estate of the deceased. When an application has been made under sec. 34, it may be necessary for the Court to grant an injunction either in the exercise of its inherent power or under r. 7 of Or. 39 of the Code. For instance, it may be brought to the notice of the Court that a party in possession is about to deal with the moveable properties; unless an injunction is granted, the appointment even of an administrator pendente lite may become fruitless. The Court, under such circumstances, has ample authority, either under statutory powers or in the exercise of its inherent jurisdiction, to make a temporary order, so as not to defeat the ultimate order which the Court is competent to make.
In the case before us, the Appellant did not make an application under sec. 34 of the Probate and Administration Act, though that was her obvious remedy. The only question for consideration now is, whether we should affirm the order of the District Judge and leave it open to him to deal with an application under sec. 34, or we should in this proceeding make an order in that behalf. In our opinion, the latter Worse should be adopted, as the Respondent has expressed an intention to deal with the moveable properties in her hands for the payment of debts. There may also be debts to be realised. In any event, on the facts stated in the affidavit it is manifest that the estate stands in need of immediate administration.
The result is that we allow this appeal, set aside the order of the District Judge and direct him to appoint forthwith an administrator pendente lite under sec. 34 of the Probate and Administration Act. There will be no order for costs either in this Court or in the Court below.
Appeal allowed.