The allegations made in the plaint were:—
(1) That the Plaintiffs were the heirs-at-law of Khas Mehal, who was the principal queen of his late Majesty the King of Oudh.
(2) That she died on the 1st of April 1894, after having purported to have made and published her last will and testament on and bearing date the 30th of June 1893.
(3) That by the said alleged will the Defendant as Administrator-General of Bengal, was appointed executor, and that in May 1894 he applied for probate of the said will.
(4) That a caveat was thereupon entered by the Plaintiffs whereupon the matter of application was set down as a contentious cause which was still pending undetermined.
(5) That in the said contentions cause the Defendant on his own application was appointed administrator, pendente lite, of the estate and effects of Khas Mehal deceased, and that he was administering the said estate.
(6) That the said will was never made, but that even assuming that it was made, the Plaintiffs were entitled to two thirds of the said estate under the Mahomedan Law, inasmuch as there was no disposition made by the said will with their consent.
(7) That the Plaintiffs were, therefore, entitled to have the said estate administered by the Court, and to receive two-thirds of the said estate after payment of all liabilities.
The application for admission of the plaint was first made in Chambers by the Plaintiffs solicitor before Jenkins, J., who adjourned it into Court to be mentioned by counsel. Mr. Chakravarti renewed the application in Court. The Judge desired to hear Counsel on the following points, viz.—
(1) That the Plaintiffs are entitled to maintain a suit for administration against an administrator pendente lite.
(2) That the Plaintiffs were entitled to get any relief of the nature they were seeking by an application in the Probate Court, as the position of an administrator pendente lite was similar to that of a receiver.
(3) Why could not the Plaintiffs ask the Probate Court to have an investigation of their claim by the administrator pendente lite, pro interesso suo?
Mr. Chakravarti for the Applicant.
The authorities show that a suit for administration is maintainable against an administrator pendente lite, see Tichborne v. Tichborne (1). The creditors of an estate who take de hors the will, are not only entitled to sue for administration against an administrator pendente lite already in existence, but they can also apply for the appointment of an administrator pendente lite to enable them to institute a suit for administration where there are protracted probate proceedings. See Tichborne v. Tichborne (2) In the goods of Evans (3). These are English cases, but sec. 70 of the Probate Court Act (21 & 22 Vict c. 77) is, so far as the present question before the Court is concerned the same as sec. 34 of the Probate and Administration Act. The English decisions are, therefore, authorities in support of the present application. [Jenkins, J., referred to the form of decree for administrations against an administrator pendente lite in Sexton on, “Judgment and Orders,” Vol. II, p. 1187.] Reference was also made to Annual Practice for 1897 p. 366. With regard to the two-thirds of the said estate the Plaintiffs take de hors the will and therefore their position is the same as that of creditors of the estate.
The receiver appointed in an ordinary civil suit does not represent the estate nor the parties. He only holds the estate for the benefit of the successful litigant. Although the position of an administrator pendente lite is similar to that of a receiver, there is a distinction, inasmuch as administrator pendente lite represents the estate for all purposes except for distribution. The estate is not in suit in the Probate Court. The only question which arises in that Court is as to whether the will was made or not.
No application could be made for the delivery of the two-thirds of the estate. The Probate Court has always refused to make any order for payment even with regard to the claim of a creditor. In the goods of Evans . The Probate Court further cannot ascertain the residue, and I am not entitled to any specific property which I claim in the hands of the Administrator-General. But the residue must be ascertained before I can get my two-thirds, and it can only be ascertained by administration. The investigation by a receiver pro interesso suo only applies where some specific property is claimed.
The plaint was admitted for final disposal.
Attorney for the Plaintiffs—Messrs Remfry and Rose.