Appointment of receiver for safeguarding estate.

The Chief Justice.-This is an appeal against the order of the District Judge of Nellore on an application filed in O.P. No.

4 of 1949, a petition Tor the grant of probate of a will dated 22nd July, 1948, of one Venkatanarasa Reddi who died

leaving behind him three widows, three daughters and two divided brothers. The first widow is the applicant for probate

of the will which was registered during the lifetime of her deceased husband. To the petition, her co-widows, the

daughters of the deceased and his brothers were made parties. An application was made pending the petition purporting

to be under sections 247 and 268 of the Indian Succession Act and sections 94 and 151 and Order 40, rule 1, Civil

Procedure Code, for the appointment of an interim administrator or Receiver to take possession of the entire estate and

manage the same during the pendency of the probate proceedings.

The estate comprises admittedly of considerable extent of immoveable property. The deceased was entitled to a third

share. The properties had not been divided by metes and bounds and it is common ground that on the date of the

petition the properties were in the possession of the two divided brothers who were respondents 6 and 7 in the petition.

The application was made on the ground that it was necessary to secure and preserve the properties pending the

disposal of the proceedings, having regard to the magnitude of the estate and the hostile attitude, taken up by

respondents 6 and 7, the brothers. Their attitude was based on a will which they set up alleged to have been executed

by the deceased on 15th August, 1948, a day before he died. This will has not been registered. It was alleged in the

affidavit filed in support of the application that respondents 6 and 7 had cancealed moveable properties of large value

and realised large amounts by way of income and sale of moveables and had manipulated the accounts to suppress the

true extent of the estate and to minimise the income accruing therefrom. The petitioner’s co-widows did not have any

objection to the appointment of a receiver and the opposition was entirely from the brothers, respondents 6 and 7. The

learned District Judge found that the applicant had a prima facie case in view of the registered will on which she was

relying as against the unregistered will relied on by the contesting respondents. The learned Judge thought that as the two

brothers were admittedly entitled to two-thirds of the estate, it would be unfair and improper to oust them from

possession and management and to vest the entire estate in the hands of a third party. He, however, was convinced that

it was necessary to safeguard the interests of the petitioner by appointing a local advocate as receiver but with limited

functions, namely, to have general supervision over the management of the estate, to take an inventory of the moveables

and outstandings and to receive a third share of the net income from the two brothers (respondents 6 and 7) and deposit

the same immediately into. Court. Respondents 6 and 7 were directed to give adequate facilities to the receiver for

supervising their management and to make the accounts available to him for scrutiny. Respondents 6 and 7 have

appealed against this order.

On their behalf Mr. Kuttikrishna Menon first raised a preliminary objection to the maintainability of the application in the

lower Court on the ground that in probate proceedings no receiver could be appointed, because it could not be said that

any right to property was in dispute in such proceedings. Reliance was placed on the decision in Namagiri Ammal v.

Subba Rao1. At the outset we may mention that this objection does not appear to have been raised in the lower Court;

nor in the memorandum of appeal to this Court in the first instance. It was clearly an afterthought. There was another suit

which had been filed by the other widows for a partition of the properties to which the widow who had applied for

probate and the daug