ORDER
1. In the present case probate is pending. The same is contentious one. because the respective parties are replying on two Wills, one dated 18th December, 1985 and the other is 1st October, 1993. It is pointed out by the learned counsel for the applicant from the relevant portion of the two Wills quoted in paragraph 5 relating to premises No. 18. Park Lane, Calcutta-16 that the contents of the two Wills are almost similar though there might be minor discrepancy in the text thereof. Having regard to the expressions used in the two Wills with regard to the disposition of 18, Park Lane, Calcutta it appears that they are almost similar excepting minor discrepancy with regard to allotment of two flats to the other two brothers of the applicant. In one case the allotment was free of cost consisting of 1500 square feet each while in the other it was on payment of consideration for 1000 sq. ft. each. The learned counsel for the applicant therefore, relying upon section 247 of the Indian Succession Act, prays that an Administrator pendente lite be appointed for the purpose of development of the property since the question for development of the property by the applicant is common in both the Wills by the applicant.
2. The learned counsel for the opposite parties on the other hand contends that section 247 provides for appointment of Administrator pendente lite except with the power of distribution of the assets or the properties. In the present case according to him a development agreement definitely consists of certain clause for disposal of the property which amounts to distribution of the properties. Therefore, no Administrator pendente lite could be appointed since the same would amount to distribution of the properties. Pointing out from the expressions used in the two Wills, he has contended that until and unless the question is settled once and for all, this question cannot be gone into.
3. After hearing the learned counsel for the parties it appears that this question cannot be decided at the present moment since it would be
prejudging the issues between the parties. But at the same time the expressions used in the two Wills appear to be identical with regard to the question of development of the said premises No.18, Park Lane by the applicant. The only right that has been reserved in the two Wills, though different from each other, with regard to the entitlement of the other two brothers of the applicant, is that in one Will the other two brothers are entitled to one flat each measuring about 1500 sq. ft. free of cost while in the other Will it is about 1000 sq. ft. upon payment of consideration at the rate of Rs.1000/- per square feet. Apart from this discrepancy the rest of the portion appears to be identical. The applicant has been given right in case of demise of the Testator to develop the property in the Will elated 1st October, 1993. In the other Will also after the demise of the Testator, the eldest son, being the applicant, would develop the properties and in such event the entitlement of the two other brothers though little different, were recorded too.
4. Section 247 of the Indian Succession Act provides as follows :
“Pending any suit touching the validity of the Will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of the deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under 11s direction.
5. A plain reading of the said provision reveals that administrator pendente lite can be appointed by the Court. Thus it is the discretion of the Court. However such discretion must be judicious discretion. A discretion is to be exercised, having regard to the exigency of the estate, its preservation management and development. If circumstances so warrant Court can exercise such discretion.
6. In the present case the testator had entered into an agreement for development of the property. In the will the carriage of the development has also been provided for. Thus the development can not be postponed. For such development appointment of administrator becomes a necessity.
7. Normally administrator appointed under this provision stands at the same footing with that of a receiver. Therefore ordinarily an impartial person other than any of the parties should be appointed. But where the parties agree, any of the parties may be so appointed. At the same time Court can not be prevented from appointing one or the other of the party if it thinks proper. The language of section 247 does not prescribe any prohibition with regard to appointment of one or the other of the parties, even though the parties may not agree. The scheme of the section does not postulate exclusion of the parties from being appointed administrator pendente lite.
8. In the present case in both the Wills the testator desired that there shall be development of 18 Park Lane and that in case of death of the testator the applicant shall carry on the development it is only a right limited to the extent of one flat each to the other two brothers have since been provided for demarcating the position of the flat. Therefore, it would be expedient if the applicant is appointed administrator pendente lite. The
appointment of the applicant is being opposed by the other two brothers. Having regard to the facts and circumstances of the case and in the exigencies of the situation and the provisions made in the Will as discussed above, in my view, the applicant is the most suitable person for such appointment, when in the Will he has been named and the testator had so desired expressly in the Will itself.
9. The administrator works under two restrictions, though he has the general power of administration. The first one is that he has to act under the control and direction of the Court. The second one is that he has no power to distribute the estate. It is clearly and specifically provided in the section itself. Therefore there is no scope for the Court to permit distribution of the estate by the administrator pendente lite. This point has since been canvassed by the opposite parties. It is alleged that the development involves distribution of the estate. In as much as when a development agreement is entered there must be a scheme for sell of the flats to be contracted. Such sell is a distribution of estate within the meaning of section 247. Therefore no development can be made.
10. As discussed above in the facts and circumstances of the case, the development can not be postponed. The estate has to be managed. In order to develop one needs finance. For raising finance for development if sell is undertaken the same will not be a distribution until it affects the rights claimed by the parties to the estate under the Will. It will amount to distribution only when it affects the rights of the parties reserved in the Will. Then again the word “distribution” has been used in the section. Distribution mean the act of distribution, to distribute. The distribution is to allot parts or shares to the parties. Unless the shares are distributed between the parties, it would not amount to distribution within the meaning of section 247.
11. In the present case the rights of the parties after development has been specified. The other two brothers are entitled to one flat each as specified in the both the Wills. Except the area and consideration therefor everything else are same. Therefore those two flats can not be distributed. Having regard to the fads of this case if these two flats are preserved then there will be no question of distribution, it is only distribution that is prohibited. Development is not distribution.
12. Then again the administrator shall be under the control and supervision of the Court. Therefore the rights of the parties are well protected. In such circumstances it cannot be said that appointment of the Administrator pendente lite excepting entitlement of the opposite parties would amount to a distribution of the assets within the meaning of section 247 of the Indian Succession Act. In case adequate protection is provided for the distribution of the portion, the opposite parties might be entitled at the most in terms of the Will dated 18th December, 1985, in that event it would not amount to distribution of the assets so far as the opposite parties are concerned. Inasmuch as section 247 relates to distribution of the properties among the legatees, since the distribution has already been provided for in the will itself and if such distribution is made in terms of the Will in that event it cannot be said that the distribution is not in terms of the Will. Since there is no dispute with regard to the expressions used
in the two Wills, therefore, the maximum that is available to the opposite parties to any of the Will, if protected, it cannot be hit by the exception provided in the section 247.
13. In that view of the matter this application is allowed. Let there be an order in terms of prayers (a) and (b) of the application in respect of 18, Park Lane, Calcutta-16 only with the restriction that in the developed building two flats measuring about 1500 sq. ft. in the position mentioned and which is common in both the Will, shall not be distributed and shall be kept in the custody of the Administrator pendente lite until further orders by this Court.
14. At this stage both the parties have joined in praying for expeditious hearing of the suit. Having regard to the facts and circumstances of the case, let there be an order of expeditious hearing of the suit.
15. Since the property appears to be allotted to the applicant in both the Wills, the applicant is appointed Administrator pendente lite subject to the control and direction of this Court.
There will be a cross-order for discovery of documents within 2 (two) weeks from date and inspection 2 (two) weeks thereafter and the suit will appear in the appropriate list after 4 (four) weeks.
All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.
16. Application allowed