Cussen J:

This is an application to the Court made under section 47 of the Probate and Administration Enactment (Cap. 8) for the appointment of an administrator "pendent lite" to the estate of one Beejanbee deceased. It is made by a son of the deceased and opposed by a daughter of the deceased.

Two questions arise for determination from the hearing of this application:

(a) a question of law; and

(B) a question of fact.

The question of law was raised by Counsel for the respondent, and I will deal with it first.

Briefly, the submission was that the Court and no jurisdiction to make an appointment under section 47 because there was no "lis pendens."

Section 47 reads 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 such 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 its direction.

Mr Braddell's argument was that on this matter there was in fact no pending suit-no "lis pendens."

It was not disputed by Mr. Shearn that, if that was so, the Court had no power to make the appointment; which is of course a self-evident proposition from the words of section 47.

Mr Braddell submitted that the word "suit" in the section can only mean a "Suit" in the sense in which it is used in the Civil Procedure Code, i.e. a proceeding instituted by the presentation to the Court of a Plaint as required by section 41 to 43 of the Code.

Mr Shearn contended in reply that the word "Suit" in section 47 of the Probate and Administration Enactment had a wider meaning and includes proceedings other than those instituted by a Plaint; and referred to the definition in section 2 of the Limitation Enactment (Cap. 18) i.e. " `Suit' includes any action or other proceeding."

Neither Counsel, as far as I recollect or have noted, referred to the definition of "Probate Suit" in Rule I of the "Rules for Contentious Business (Probate and Administration)." which is:

1. The words 'Probate Suit' in these rules are to include suits and other matters relating to the grant or recall of probate or of letters of administration other than non-contentious business.

Rules 19 and 20 provide for the commencement of "all Probate Suits" as follows:

19. All probate suits are to be commenced by a summons issued at the instance of the plaintiff against the defendant which shall be endorsed with a statement of the nature of the plaintiff's claim against the defendant and also the dependant's interest by showing the grounds for bringing the defendants into the suit, whether as next-of-kin, or as a party entitled in distribution- or as interested under another will.

20. The issue of a summons in probate suits shall be preceded by the filing of an affidavit made by the plaintiff or one of the plaintiffs in verification of the indorsement on the summons.

So that no Probate Suit is evere commenced by the presentation of a Plaint in the manner of a suit under the Civil Procedure Code.

19. In my opinion, this-"Probate Suit"-is the meaning of the word "suit" in section 47 of the Probate and Administration Enactment, and so it includes all matters relating to the grant or recall of probate or letters of administration other than non-contentious business.

19. It is relevant to consider the title to the aforesaid rule, i.e., "Rules for regulating the practice and procedure in the Supreme Court in respect of contentious business in probate and administration causes" and in contrast the title to the "Rules for Non-contentious Business (Probate and Administration)", i.e., "Rules and instructions for the Registrar, Assistant Registrars and Deputy Registrars . . . . in respect of non-contentious business in the Supreme C