Succession Law – Appointment of Administrator pendente lite

Recently, the Hon’ble Bombay High Court in Manek Dara Sukhadwalla Vs Shernaz Faroukh Lawyer & Others held that a probate court can appoint an administrator to administer the estate of the deceased pendent lite, however, the party seeking such appointment cannot seek such relief as a matter of right. The relevant portion of the judgment is extracted herein under;

“63. The appointment of an administrator is purely discretionary but at the same time such exercise of discretion must be judicious and not arbitrary. One of the tests is to see whether the Court is satisfied as to the necessity of such administration and the fitness of the proposed administrator and the circumstances justifying the case for appointing an administrator before subjecting the estate to the cost of such administration. Appointment of an administrator cannot be claimed as of right merely because there is a contest but such a request will be justified when there are bonafide disputes and the Court is convinced that it is necessary to appoint an administrator.

64. There can be no quarrel with the proposition that while the testamentary suits are pending, no one is legally entitled to receive or hold the estate or give a valid discharge. In the case of Rajendra Lodha (supra), the High Court considered appointment of an administrator pendente lite but came to a conclusion in the facts of that case, that there was no necessity of appointing an administrator pendente lite and that in their considered opinion the order of injunction passed was sufficient to preserve the estate. In the case of Rajendra Singh Lodha, the Court did not find any ground or material for arriving at a finding of “necessity” of appointing an administrator. There was no finding of waste, mismanagement, siphoning out of money, dilution of the property, etc. Whereas, in the present case, the learned Single Judge has found that the circumstances relating to the transfer of the Al-Karim property at least, was questionable apart from suppression/non disclosure of other assets.

65. The subject matter of the Will is the estate of the deceased. The succeeding party will be entitled to administer the estate and carry out the wishes of the testator, that is the final relief both the parties endeavour to obtain. The bitter dispute between the parties notwithstanding, it is inherent in the nature of the dispute that the estate of the deceased must be protected. In the facts and circumstances of the case, the existence of a bonafide dispute and conduct of the appellant and others clearly demonstrates the necessity of safeguarding the estate and an injunction will not suffice. The findings of the learned Single Judge that it is necessary to protect the estate by appointing an administrator are thus justified.

66. Apropos the scope and ambit of Sections 247 and 269 of the Succession Act, it is certainly possible for the probate court to exercise its powers to appoint an administrator in the testamentary suit. The difference between a suit under the Civil Procedure Code and a suit under the testamentary jurisdiction was dealt with by the Division Bench of this Court in the matter Thrity Sam Shroff (supra) holding that merely because a probate petition becomes contested, it does not transform the probate proceedings into a suit under the Code of Civil Procedure. The provisions of C.P.C. would apply to such proceedings only to the extent there is inconsistency between the CPC and the Succession Act. The fact situation in that case was not comparable to the present case. In that case, the issue before the Court was the right of a person in relation to operation of sections 222, 226 and 295 of the Succession Act. The case of Thrity Sam Shroff has been considered by this Court in the case of Ramchandra Ganpatrao Hande (supra) which reiterates the principle that the jurisdiction of the probate Court is confined only to considering the genuineness of the Will and it does not look into the title or even existence of the property itself and the 67. It was held that section 269 is the only provision which empowers the Court to interfere in the protection of the property. It is only relevant until the probate is granted or an administrator is constituted. It is further held that the legislature had enacted the said provision in order to enable the testamentary Court to pass an interim order of protection in relation to the property during the pendency of the petition. At the same time, the legislature excluded a class of persons, namely Hindu, Mohammadan, Sikh or Jaina or an otherwise exempted person as specified in sub-section (2) of section 269. In a regular suit, powers of the Court under Order 39 could be resorted to, to the extent the property forms the subject matter of the suit, whereas in a testamentary suit, the property left by the deceased is not the subject matter of the Petitioner's suit. In the present case, the proviso to section 269 has been pressed into service and in passing the impugned order, the learned Single Judge has concluded that the property forming the subject matter of the suit is under clear and present risk of loss or damage.”