Judgment 1. F. A. A. 516/89, F. M. A. T. 61/89 and C. O. T. 3460/89 have ait been assigned to us disposal. 2. F. M. A. 516/89 was directed against an order dated april, 30, 1988 passed by the District Delegate, Alipore, 4-Parganas, in Act XXXIX Case No. 384/83. This appeal has been filed by Hirak Roy who is the Executor to the last 111' and testament of Smt. Giri Bala Devi. F. M. A. T. 34 61/8? which has now been renumbered as F. M. A. 212/90 has been referred by Dr. S. K. Roy @ Sushil Roy, A. C. Roy @ Anil 3y and Smt. Bani Roy impugning an order dated 30th July, 1989 passed by the. District delegate in the self same case ejecting the application filed by the appellants under section 247 of the Indian Succession Act regarding appointment of any one of them as Administrator pendente lite for selling the 1/4th undivided share at premises no. 73, Dr. Meghnath Saha Sarani in respect of which the appellants ere the beneficial or the legatees under the Will of of their mother, Smt. Giri Balm Devi 'and of which Hirak roy was the Executor. The learned District Delegate came 3 a finding that the Executor Hirak Roy did not make any retention delay in the Probate proceeding and there was 3 necessity in appointing any one of the appellants as administrator Pendente lite or as receiver as prayed for by them and thus rejected their application. Cross objection tender No 3460/89 has been filed by the self same appeal, Dr. S. K. Roy, Anil Chandra Roy and Smt. Bani Roy arising their cross objection in respect of F. M. A. 516/89, on tending, inter alia, that the application for injunction as filed by the appellant Hirak Roy before the District delegate was not maintainable in law and the learned District delegate acted illegally and with material irregularity in passing an order regarding maintenance of Status in respect of 1/4th undivided share in the disputed premises for which cross-objectors were the legatees under the Will, thus restraining them from disposing of the property thereby allowing the Executor to acquire an unlawful gain since he continued in possession in the said premises and the to put an embargo on the cross objectors in disposing of the property. Before we decide the matter on merits, it would be necessary for us to traverse; the facts of the case, late puma Chandra Roy owned a the use-property at 73, Southern avenue now known as Dr. Meghnath Saha Sarani. He died intestate" 16. 8. 58 giving behind him surviving his widow, sm. Giri Bala Devi, two sons,, Dr. S. K. Roy @ Sushil Kumar roy, Anil Chandra Roy and one daughter Smt. Bani Roy. Smt. Giri Bala Devi had thus 1/4th -undivided share in the said property. Smt. Giri Bala Devi executed her last Will and testament on 2nd February, 1974, whereby she bequeathed amongst other things her undivided 1/4th share in the house-property to her two sons, Sushil Kumar Roy and Anil Chandra roy and her only daughter, Stmt. Bani Roy absolutely, making certain other disposition in respect of her moveable properties. She made her grand-son Hirak Roy who is now a member of the High Judicial Service, the Executor to her Will. The said Smt. Giri Bala Devi died testate on 2nd March, 1983. The Will is not contentious. On 20th November, 1983, hirak Roy, son of Anil Chandra Roy, filed an application in the court of the District delegate at Alipore, South 24-Parganas for grant of probate of the Will without security. The said case was registered as Act Case No. 384/83. Admittedly, 3/4th share, though undivided, belonged to Sushil kumar Roy, Anil Chandra Roy and Smt, Bani Roy as direct heirs of Late Puma Chandra Roy and even with regard to 1/4th undivided share of Smt. Giri Bala, there is no dispute that these three persons, S. K. Roy, A. C. Roy and Smt. Bani Roy are the sole legatees or beneficiaries as regard the house-property is concerned. It has been averred and there is also no denial to that effect, that there is no debt payable by the testatrix, Smt. Giri Bala Devi. Dr. S. K. Roy, Anil Chandra Roy and Smt. Bani Roy have also expressed their readiness and willingness to pay the Probate duty that might be legally assessed by the appropriate authority. 3. IT was alleged that Hirak Roy did not take any positive steps for obtaining the probate and the proceedings were protracted for several years and that he is deliberately delying the matters to the utter prejudice and detriment of the legatees. 3. IT was alleged that Hirak Roy did not take any positive steps for obtaining the probate and the proceedings were protracted for several years and that he is deliberately delying the matters to the utter prejudice and detriment of the legatees. There is an apprehension that Hirak Roy perhaps not willing to act as Executor since he was making frivolous interlocutory applications so as to delay the matter of granting of the Probate and that was the precise reason why the appellants in F. M. A. No. 212/90 applied for his removal and appointment of an Administrator Pendente lite and also for appointment of a Receiver in respect of the disputed premises. Specific averments made by them was to the effect that they were all aged. The premises in question is a very big house and it is difficult for them to maintain the same. They decided to dispose of the said premises in order to acquire individual flats for themselves and for the members of their respective families. They have already entered into an agreement for sale in respect of their 3/4the undivided share in the said premises which they acquired by intestate succession from their father and also their inchoate right in respect of remaining 1/4th share in respect of which they were the legatees under the Will or their mother. Even under the normal succession on intestacy they were the sole heirs in respect of 1/4th undivided share that belonged to their mother, Smt. Giri Bala: devi. Hirak Roy, son of Anil Chandra Roy (the appellant no. 2) had no right, title and interest in the premises save and except the fact that he is merely an executor of the last Will and testament of Smt. Giri Bala Devi. Even though there was no objection in the matter of granting of Probate, the Executor Sri Hirak Roy, it is alleged, was delaying the proceeding since he and his wife are in occupation of a portion of the said premises. 4. ON the basis of an application under section 94 (c)read with section 151 C. P. C. filed on 29. 6. 4. ON the basis of an application under section 94 (c)read with section 151 C. P. C. filed on 29. 6. 1987 by the said hirak Roy for an order of temporary injunction restraining the appellants in F. M. A. 212/90 from selling out or otherwise transferring their share in the property or from entering into a contract and/or agreement with any person for effecting the sale or otherwise transferring the property or otherwise to give effect to any agreement, the learned District delegate directed maintenance of status quo in relation to 1/4th undivided share in the disputed premises until further orders or till the Probate case was disposed of, which ever is earlier, by passing the order impugned bearing no. 34 dated 30th April, 1988. Sri Hirak Roy impugned this order in F. M. A. 516/89 contending, inter alia, that the learned District Delegate erred in law in permitting Dr. S. K. Roy @ Sushil Kumar Roy, Anil Chandra Roy and Smt. Bani Roy to deal with the. subject matter of the bequest. It was further contended that despite the fact that the appellant was the Executor to the estate which formed the 1/4th share in the disputed premises, the District delegate erred in law in permitting Dr. . S. K. Roy, Anil Chandra Roy and Smt. Bani Roy to deal with that portion also and that apart, the direction as passed in the last paragraph of the order dated 30. 4. 88, was really uncalled for and unsustainable in law. In the last paragraph of the. impugned order dated 30th April, 1988, the learned District Delegate observed as follows "it is desired that there will be no occasion to put the petitioner in any unplesant situation while the opposite parties will be dealing with the subject matter of the bequest in relation to the said property and also the 3/4th undivided share thereof which is not covered under the Will, during the pendency of the Probate case. " He contended that by passing the impugned portion of the order, the court itself, modified its earlier order dated 3. 7. 87 which it 'ought not to have done. In cross-objection Tender no. . 3460/89, by Dr. " He contended that by passing the impugned portion of the order, the court itself, modified its earlier order dated 3. 7. 87 which it 'ought not to have done. In cross-objection Tender no. . 3460/89, by Dr. S. K. Roy, Anil Chandra roy and Smt. Bani Roy which was filed after the notice of appeal in F. M. A. 516/89, it was; contended inter alia, that the' application for injunction as filed by the appellant, hirak Roy in the Court below was not itself maintainable in law as wall as on facts. The said application for injunction was filed by the Executor to acquire an unlawful gain inasmuch as, 1/4th undivided share of the mother of the cross-objectors was bequeathed to the cross-objectors absolutely and there was no debt; whatsoever payable in respect of the estate and hence, the order directing maintenance of status quo was absolutely illegal and uncalled for. It was averred on their behalf that when the legatees under the Will i. e. the cross-objectors, wanted to dispose of the property to acquire individual flats for themselves since they were unable to maintain a big house and wanted to allow a promoter to build for them, the Id. District delegate exercised his jurisdiction illegally and with material irregularity passing an order of status quo in respect of 1/4th undivided share in the disputed premises. That apart, the learned District Delegate thought that an assent war; essentially required from Hirak Roy, the Executor, for enabling the cross-objectors to transfer their 1/4th share in the disputed property, overlooking altogether that the cross-objectors were the legatees themselves under the Will and as such, they ware entitled to enjoy the benefits under the Will and ware competent to deal with the subject matter of the bequest even without the assent of the Executor. Moreover, it was a case where the assent was withhold illegally by the Executor without any justifying reason in order to satisfy his own personal unlawful gain. Moreover, it was a case where the assent was withhold illegally by the Executor without any justifying reason in order to satisfy his own personal unlawful gain. It was further averred that the learned District Delegate failed to appreciate the settled principle of law and legal casts in matters of granting an injunction in a Probate proceeding, when the persons who got the property absolutely in terms of the Will were willing to dispose; of the property for their own benefit and the Executor had no locus standi whatsoever to intervene under such circumstances so as to stifle the last wishes of the testatrix and pray for an injunction restraining them from exercising their legal rights under the Will. 5. MR. Sakti Nath Mukherjee, the learned Senior Counsel appearing for the appellants in F. M. A. 212/90 and the cross objectors in C. O. T. 3460/89 and for the respondents in F. M. A. 516/89, contended before us that it was a case where the executor was not taking steps in early disposal of the Probate case and that being so, Dr. S. K. Roy, A. C. Roy and smt. Bani Roy were prompted to file an application for removal of the Executor and appointment of Administrator pendente lite and for a Receiver. He further averred that it being an uncountested probate proceeding and there not having been any debts to the estate of late Giri Bala Devi, the appellants Dr. S. K. Roy. A. . C. Roy and Smt. Bani Roy had a transmissible interest which they could convey without assent of the Executor. Mr. Mukherjee cited before us Williams on Executors and Administrators 16th Edition page 85-86 and William, Mortimer and Sumnucks on Executors, Administrators and Prepare page 352 for the proposition that legatees under a Will had indeed a transmissible interest which they could convey even without assent of the Executor. Mr. Mukherjee further cited before us Halsbury on the Laws of England on the topic relating to "assent" at page 338 where there was clear proposition. of law enunciated that an Executor may be compelled by the legatee to assent, should he refuse to do so without just cause. Mr. Mukherjee further cited before us Halsbury on the Laws of England on the topic relating to "assent" at page 338 where there was clear proposition. of law enunciated that an Executor may be compelled by the legatee to assent, should he refuse to do so without just cause. It was one of the incumbent duties on the part of the Executor to secure and protect the property which he is duty bound to hand over to the legatees under the Will and he was also duty bound to expedite the Probate proceeding. Mr. Mukherjee cited before us the reported decision in ILR 50 Calcutta 171 and air 1940 Patna 40 at page 43 in support of his contention in this regard. In section 336 of the Indian Succession act, the effect of the Executor's assent has been provided for. The assent of the Executor or Administrator to a legatee gives effect to it from the death of the testator. In Illustration (i) it has been delineated that if a legatee as well as his legacy before it is assented to by the Executor, the Executors subsequent assent operates for the benefit of the Purchasers and complete his title to the legacy. Thus the assent of the Executor shall have relation to the time of the testator's death under section 332 the assent of the Executor or Administrator is necessary to complete a legatee's title to his Legacy. In Khagendra Nath Mukherjee vs. Khetra Nath Mukherjee, reported in AIR 1923 Cal. 21 = ILR 50 Calcutta 171, it was made very clear that the matter of assent seems only a perfecting act for the security of the Executor and therefore, law does not require any exact form in which it is to be given. Though on the assent of the Executor, full title passes to the legatee, the assent creates no new title; it merely perfects the title under the Will; and if the legacy is void, the assent is of no use. In Martine vs. Willson (1912)1 Irish Reporter 480 the principle was enunciated clearly that if an Executor refuses to give an assent without cause, the court may compel him to give it. In Martine vs. Willson (1912)1 Irish Reporter 480 the principle was enunciated clearly that if an Executor refuses to give an assent without cause, the court may compel him to give it. The Executor is not entitled to withhold his assent arbitrarily and if he does so, the legatee is competent to bring an action to recover the property bequathed to him (Vithal vs. Narayan AIR 1931 Nag Page 6 9 at page 70 ). There not having been any debts to the estate, the only question that has to be satisfied by Dr. S. K. Roy, a. C. Roy and Smt. Bani Roy is about the probate duty which can only be assessed on a proper valuation having been assessed by the competent authority. The matter has already been referred to the Collector for the purpose of valuation and there is a protracted delay on this account. We would, therefore, direct the learned District Delegate, in the facts and circumstances, of the present case, to call for the valuation report from the Collector by giving him two clear months' and if within this time the valuation report be not available, the District Delegate would be competent to response on other evidence regarding valuation of the disputed property and on the appellants in F. M. A. 212/90 namely Dr. S. K. Roy, A. C. Roy and Smt. Bani Roy providing for and securing the Probate duty, the District Delegate must grant to them the proper leave to appeal for assent of the Executor. As the matter stands, now, the order directing the maintenance of status quo in respect of 1/4th share is clearly uncalled for. If the appellants in F. M. A. 212/90 and the Cross-Objectors in C. O. T. 3460/89 do enter into an agreement for sale or execute a sale deed, the title of the transferee would indeed not be perfected without the assent, but there could not be any embargo on the appellants, Dr. S. K. Roy, A. C. Roy and Smt. Bani Hoy to effect any sale and/or transfer or even to enter into an agreement for any such purpose without the assent of the Executor. S. K. Roy, A. C. Roy and Smt. Bani Hoy to effect any sale and/or transfer or even to enter into an agreement for any such purpose without the assent of the Executor. The assent of the Executor would only be a formality only on the deposit of the necessary funds for probate duty being put in by the legatees without which the Executor cannot obtain a probate in respect of the Will of Late Smt. Giri bala Devi. 6. WE have gone through all the allegations as levelled against Sri Hirak Roy, the Executor to the Will. We are quite in accord with the ultimate finding of the learned district Delegate that he is not solely responsible for the delay and even though he has prayed for some adjournment here or there that does not itself disentitle him from taking the probate as Executor to the Will. No case for his removal as such from Executorship and for the appointment of any one of the legatees as Administrator pendente lite has really been made put the facts and circumstances of the present case so as to justify our interference at the present stage. We are very much alive to the contention raised by mr. Bhaskar Bhattacharjee, the learned Advocate for Sri hirak Roy, the respondent in F. M. A. 212/90 and the appellant in F. M. A. 516/89 who appearing on behalf of the cross respondents in c. O. T. 3460/89, contended before that the cross-objection as preferred by Dr. S. K. Roy, A. C. Roy and Smt. Bani Roy was not maintainable in view of the provision regarding filling of a cross-objection not being available in respect of an appeal filed against an interlocutory order passed by the learned District. Delegate. We have given the mater our anxious consideration. The proceedings in respect of granting of probate and of letters of administration, by virtue of the application of section 268 of the Indian succession Act, are regulated, so far as the circumstances of the case permit, by the Code of Civil procedure. This statutory provision is very wide. The legislature had intended that the Civil procedure Code should read with. This statutory provision is very wide. The legislature had intended that the Civil procedure Code should read with. the Indian Succession Act mutatis mutandis and unless a particular provision as specifically provided in Civil Procedure Code has been departed from in a Probate proceeding that is provided separately under the India Succession Act, 1925, the provisions of Civil Procedure Code do apply. Section 299 however, has a limited application regarding appeals orders of the District judges. The mostrict Delegate, however, us functioning within the framework of his delegated authority as conferred by the District judge and if an order is passed by the District Delegate, such order is subject to appeal in the High Court in accordance with the provisions of the Code of Civil Procedure as applicable to appeals. If an appeal is maintainable, so is a cross-objection. The full Bench decision of the Gouhati High Court in AIR 1977 garhati Page 70 ( Nirakanta Untia vs. Smt. Debi Chutiani)has made that particular proposition fairly clear. Even in such matters where cross objection is not provided by the statute, the Supreme Court following the procedure relating to filing of cross-objections by analogy held in Raman bhai Asha Bhai Patel vs. Dabhi Ajit Kumar Fulsinghji reported in AIR 1965 SC 668; Rup Chand vs. State of Punjab, AIR 1963 sc 1503 and Collector, Varanasi vs. Gouri Shankar Mishra, reported in AIR 1968 SC 384 that wherever there is a right of appeal there is also a right of cross-objection. If the district Judge delegates his powers to the District Delegate, by analogy it could be inferred that he could not sit on appeal over the orders passed by the District Delegate and such an appeal from an order of the District Delegate would naturally lie before the High Court and if an appeal lies to High court, the respondent indeed had a right to prefer a cross objection. 7. IN the view that we have taken in the facts and circumstances of the present case, we would set aside the order directing maintenance of status quo which has been passed against Dr. S. K. Roy @ Sushil Roy, Anil Chandra Roy and smt. Bani Roy by allowing- C. O. T. 3460/89 to the extent as indicated by us hereinbefore. We would dismiss the appeal filed by Dr. S. K. Roy @ Sushil Roy, Anil Chandra Roy and smt. Bani Roy by allowing- C. O. T. 3460/89 to the extent as indicated by us hereinbefore. We would dismiss the appeal filed by Dr. S. K. Roy and others in F. M. A. 212/90 in so far as it challenges the order no. 49 dated 13. 7. 89 whereby the learned District Delegate rejected their pray of appointing any Administrator Pendente Lite or a Receiver by removing the Executor. We direct the proceeding to be taken up expeditiously as indicated hereinbefore. We would also dismiss F. M. A. 516/89 as preferred by Sri Hirak Roy in view of our order in C. O. T. 3460/8$ in allowing the cross objection. There Will be no order as to costs in respect of either f. M. A. 516/89, F. M. A. 212/90 or c. O. T. 3460/89. Crass-objection allowed in part. Appeals dismissed.