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BANERJEE
In the Goods of Borendra Nath Mitter and Sudhirendra Nath Mitter – Appellant
Versus
Arunendra Nath Mitter – Respondent
JUDGMENT
Banerjee, J. - The application is for an administration 'pendente-lite' touching a Will-The power to grant such administration is conferred on the Court by Section 247, Succession Act.
2. The words "may appoint" in the sections indicate that the Court has a discretion in the matter. That discretion is judicial & not arbitrary, to be exercised on established principles of law.
3. This section replaces Section 34, Probate & Administration Act of 1881. It is based on the Court of Probate Act, 1857, 20 & 21 Vict., C. 77, Section 70 & is substantially in the same words. The English decision therefore, are authorities on the question under consideration. In any event, they may be relied on for the exercise of a sound discretion under this section.
4. But before I consider the decisions under the statute, I turn to the earlier English decisions, for the principle on which that discretion was exercised before the Statute. I read only the leading cases.
5. In 'King v. King' (1801) 6 Ves 172. opposite claims were set up under different Wills, & a decision had been made that one Will had not been sufficiently proved. It was objected, in opposition to the Motion, that the property did not
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