The main legal point established in the judgment is that the discretion to appoint an administrator 'pendente-lite' is judicial and not arbitrary, to be exercised on established principles of law, including the necessity for the grant and the existence of bona fide litigation.

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 appear to be in danger, & that Ecclesiastical Court (Court which used to grant probate of a Will) would appoint a, receiver 'pendente-lite', that is, an administrator 'pendente-lite'. Lord Eldon said,

"This is almost a motion of course.........The Court goes upon this, that it will do its best to collect the effects. The property is in danger,. in this sense, that it may get into the hands of persons who have nothing to do with it."

6. In 'Rendall v. Rendall' (1841) 1 Hare 152, Sir James Wigram, V.C. after referring, to 'King v. King' (1801) 6 Ves 172, said,

"From this case, in which the rule of the Ct is so clearly laid down, I pass to the late case of 'Wood v. Hitching' (1840) 2 Beav 289, in which the same principle was acted upon, the chief cases upon the subject having been referred to. I omit the intermediate cases, with the single observation which I believe will be found correct, that the proposition laid down by Lord Eldon, in 'King v. King', is unimpeached by a single decision or dictum. Special reasons have sometimes been relied upon for not appointing a Receiver; (administrator 'pendente lite'), where there was no actual representative (as in 'Jones v. Frost' 3 Mad. 1); but those very reasons affirm the general proposition that where there is no representative to collect the assets, & there is a 'bona fide' litigation respecting the title to that representation the appointment of a receiver, pending the litigation, is almost of course. Then, has Lord Cottenham impugned the rule by anything he did or said in 'Watkins v. Brent' (1835) 1 Myl & Cr 97, or in 'Marr v. Littlewood' (1837) 2 Myl & C 454?"

7. The learned Vice-Chancellor, after discussing the two judgments of Lord Cottenham, took the view that Lord Cottenham did not, & concluded thus.

"Nor can I better conclude these observations than in the language of Lord Cottenham ('Watkins v. Brent' 18351 Myl & Cr 97), 'There is no doubt that by the rule of this Court if the representation is in contest, & no person has been constituted executor, the Court interferes, not because of the contest, but because there is no proper person to receive the assets'."

8. The Court of Probate Act was passed in England in the year 1857. In 1865, Sir J P Wilde in a considered judgment in the case of 'Bellew v. Bellew' (1865) 4 Sw & Tr 58, observed as follows:

"An application was made last week for the appointment of an administrator 'pendente lite' in this suit. The applicant's affidavit did no shew, & it was not pretended that it did shew, that the estate was in any jeopardy or peril; but it appeared that some of those who were opposing the appointment of an administrator had applied to the Court of Chancery "to appoint a receiver. It was argued that it was not necessary in this Court to show that the estate was