BALKRISHNA VISHVANATH DEO Vs. VINAYAK NARAYAN BABRE

JUDGEMENT

(1.) The petition out of which these applications arise was made to the District Judge, Thana. It was dated November 2, 1929. There is no doubt that it was entirely misconceived, The learned District Judge made an order to which, he considered, the parties had consented. But immediately on this order being made, an application was made to him stating that the executors had not consented, and asking Mm to revise the order. He did so to a certain extent, but not to the full extent.

(2.) Before me there was no question about the parties agreeing as to what was to be done. A considerable amount of the Court's time has been wasted, What I fail to understand is the basis on which the petition was made. What evidence was placed before the Court to enable it to give directions to the executors in contravention of the directions contained in the will ? Executors are bound to carry out the direction of the will, It is very unseemly on their part to obtain probate of a will, and then, instead of acting as ministers of the will of the testator, turn against his wishes and speak of them in the manner in which they do in the petition, If they consider themselves so much wiser and better than the pious, though, it may be, old fashioned and ignorant testator, whose property they are ready to deal with, they should have declined to obtain probate of his will and renounced the executorship.

(3.) "It is clear," said Lord Eldon in Mucklow v Fuller (1821) Jac. 198, 201, "that the defendant having proved the will, by so doing, accepted the legacies in trust; he cannot say that he has not accepted the trusts. The will contains express directions what the executors are to do, and if he makes himself an executor he must do all which he is directed to do as executor." Lord Langdale, presiding, seventeen years later, over the Rolls Court, and referring to an executor, who had acted with " inadvertence and over good nature," and who "unfortunately did not consider that, by proving the will, he had undertaken any duty or undertaken any liability," said: " It is important that it should be well understood that no one can safely act in that manner, and that the law will not permit a party to neglect the duty which, by proving the will, he has undertaken. I am of opinion that he became liable for the performance of the trusts, and for any consequences arising from a breach of them": Booth V/s. Booth (1838) 1 Beav. 125, 128.