ANTONY Vs. P.K. ROCKEY MEMORIAL TRUST

JUDGEMENT

(1.) ONE P.K.Rockey was the sole proprietor of a concern known by the name M.A.Bankers.He died on 2nd October,1974.Before his death he had executed a Will on 13th September of the same year.By that he created a trust known by the name 'P.K.Rockey Memorial Trust 'his whole assets being the capital of the Trust and his brothers 'sons to be the trustees.The Trust was to continue the business of the M.A.Bankers after his death,the ownership and management of the business to vest in the Trust.

(2.) AT the time of Rockey's death some execution petitions were pending in court for execution of decrees obtained by the M.A.Bankers.Here we are concerned with two of such execution petitions.In both these petitions,the first respondent herein filed separate applications supported by his affidavit to.the effect that the proprietorship and management of the M.A.Bankers have as per Rockey's Will vested in the P.K.Rockey Memorial Trust,that he is the Managing Trustee as per the testamentary provisions and he is entitled to continue the proceedings for execution of the decree.Therefore the applicant sought to get himself impleaded in the deceased decree holder's place in the E.Ps.

(3.) THE judgment -debtors have therefore came up in revision to this court in the revision petitions.They challenge the lower court's observation that the Managing Trustee "the first respondent herein is not claiming as a legatee under the Will.It is pointed out that in the affidavit filed in support of the application for impleading it is clearly stated that he is seeking execution of the decree only by virtue of the fact that he has been appointed as a managing trustee by the Will and as such he has got the right to execute the decree.The trust as well as the trustee is a legatee under the Will.Or at any rate,the right to execute the decree springs solely from the Will.The petitioners 'contention is that when the right to execute the decree is questioned,the person who wants to execute the decree has to establish his right to execute the decree by satisfactory proof;the proof in this case can only be the Will which can be looked into,only if it is probated.It is also contended that a probate is necessary even in cases of execution of mortgage decrees.The respondents try to sustain the lower court's order.