RUSTAM ARDESHIR GAGRAT Vs. NR

JUDGEMENT

(1.) THIS petition by the sole surviving executor raises a question which is as interesting as it is difficult. The sole surviving executor appointed under the Will and the grantee of the probate seeks from this Court in its testamentary jurisdiction, an order, appointing another person, not being an executor, to administer the estate jointly with him. Can such an order be made ?

(2.) FRAMROZE Dinshaw Bilimoria, the petitioner herein, and Chinubhai Nagindas Mehta were the executors and trustees appointed under the Will and Codicil respectively, dated 13-2-1957 and 25-11-1965, executed by Hirjeebhoy Dinshaw Bilimoria. In testamentary Petition No. 265 of 1968 the probate of the Will was granted to the petitioner and Chinubhai Mehta Framroze Bilimoria, the third executor, having died during the pendency of the petition. The probate is dated 10th March, 1989. After the death of Chinubhai Mehta on 10th May, 1989, the petitioner is the sole surviving executor of the estate of the deceased, Hirjeebhoy Bilimoria. The petitioner, 89 years of age, seeks a direction under section 302 of the Indian Succession Act that in the interest of the estate and the beneficiaries, some fit and proper person be "appointed to act along with the petitioner".

(3.) THE petitioner seeks the appointment of a person not being an executor to "act" jointly with him. Whether such an appointment could be made by the Court exercising testamentary jurisdiction may be considered in the light of the provisions of the Indian Succession Act. "executor" of a Will is the person to whom the execution of the Will of a deceased is, by the testators appointment, confided. [section 2 (c) of the Indian Succession Act. ] He administers the estate by virtue of the grant made in his favour by the probate. [section 2 (f) of the Indian Succession Act]. There are only two ways of rightfully administering the estate of a deceased. It may be done by virtue of the Letters of Administration which are granted in cases of intestacy. [sections 218 and 219 of the Indian Succession Act] The Letters of Administration may also be granted when a testator dies leaving a Will but without naming an executor or if there be an executor, such executor is legally incapable or refuses to act or dies before the Will is proved. [section 234 of the Indian Succession Act]. So also when a proving executor dies without fully administering the estate, the Letters of Administration with the Will annexed may be granted [section 258 of the Indian Succession Act]. The substance of the matter is that only a person who is granted the legal right to administration can administer the estate.