1. In this petition proposed to be fifed, the prayer is for grant of probate in respect of the Will of one Eunice Anntee Johnson. The application is by a single person, Mr. Tadimatla Subbarao, one of the partners of the firm of Solicitors and Advocates by name King and Partridge. The terms of appointment in the Will are, 'I appoint the person who shall be the partners of the firm of M/s. King and Partridge, Solicitors, Madras, Bangalore and Ootacamand at the time of my death (hereinafter called 'my Trustees') to be the executors and trustees of this my Will'. On scrutinising the papers, the Registrar of this Court raised an objection or suggestion whether it was not necessary for all the persons answering the description contained in the above appointment to make a joint prayer for grant of probate in favour of all of them. The learned counsel for the petitioner, however, has sought to answer the same by relying on the provisions of Section 224 of the Indian Succession Act.
2. So far as the facts are concerned, it is not disputed that at the time relevant for the appointment mentioned above, there were ten persons functioning as partners of the firm of King and Partridge namely, (1) C. Doreswamy, (2) D. K. Basu, (3) B. P. Ray, (4) P. Sengupta, (5) J. L. Armstrong, (6) P. K. Roy Chowdhury, (7) T. Subba Rao (Petitioner), (8) M. Uttama Reddy (9) S. C. Ghosh and (10) E. R. C. Davidar.
3. Now Section 224 of the Succession Act reads 'when several executors are appointed, probate may be granted to them all simultaneously or at different times.' By itself it does not, in my opinion, support the contention. It provides, but does not dispense with the grant of probate in respect of or in favour of any one or more of the executors when there are several executors. The language itself makes it clear that the grant of probate is to be made in favour of all the executors; what the section intends is to provide for contingencies, where it may not be possible for all the executors to make an application simultaneously, by vesting a discretion in the court, to be exercised in accordance with or in the light of the relevant circumstances, to make grants at different times in favour of one or more of the several executors, the ultimate idea being that at some point of timethere should be a grant in favour of all theexecutors.
4. It is however pointed out that such need not necessarily be the position, because Section 311 of the Succession Act says, 'when there are several executors or administrators, the powers of all may in the absence of any direction to the contrary be exercised by anyone of them who has proved the will or taken out administration.' It will be seen that the person who may under this section and in the absence of direction contained in the will exercise the powers of executors, is the person who has proved the will. It cannot be said, therefore, that when there are several executors and some only take out probate, and therefore, answer the description of a person who has proved the will, thepowers of the executors can be exercised by persons other than those who have taken out probate. Even the operative portion of Section 311, therefore, contemplates the existence of a grant.
5. There is, apart from the effect of the language of the sections, a much higher principle which requires that grant should be made in favour of all executors appointed under the will and willing to act, and that is that executors are persons selected by the testator as deserving the trust he reposes in them; because those are persons trusted by the testator, no security is taken from them for the execution of the will. When a testator appoints several executors, the normal inferences should be that he expects all of them to act together the opinion of the testator implicit in the appointment being that he expects that his will will be fully and properly executed when all the executors appointed by him act together. Of course, because the position is one of trust and appointment need not have been made after consultation it is open to anyone of the executors to decline to act or having started to act, renounce the executorships if circumstances are such that law would permit him to do so.
6. With reference to the appointment made in this case, it is obvious that the testatrix trusted the firm of King and Partridge to act as her executors. The language of the appointment, namely, persons who would be the partners at the time of the will comes into operation, makes no difference because it isanother way of saying that all the partners at time the will comes into operation should function as her executors. For someof the partners alone to apply for probate and thus acquire the power to act as executors and execute the will, and the rest not to act, would surely be a power exercised by the firm to modify the appointment. Such power cannot be permitted to be exercised. If one partner takes out pro-bate and other partners as partners also act in the execution of the will, it would indeed be an exercise of power which is not permitted by law.
7. Hence the only position or attitude which the firm or its partners may properly take in cases of this nature is for all the partners to take out probate as joint grantees. If, however, for reasons of convenience or otherwise, it is found not possible to do so, and one or some only apply for probate, then the others should stand out, and, renounce their executorships and refrain from doing anything thereafter as executors.
8. The decision of the Madras High Court reported in Re James Noel Anthony Hobbs, : AIR1957Mad613 also supports the view stated above, because the proposition made is, '...Normally unless there is something in the law to prevent it one must give effect to the intention of the testator. It is clear that the intention of George Pelham White was all the executors should act jointly, which means, that he did not want one or some of them alone to act. Section 224 of the Act would, it seems to me apply only where the testamentary instrument is silent as to the manner in which the executors should act. If the document names several executors and says nothing more, then by reason of Section 224 some one or more of them may apply for probate. But, where the testamentary instrument requires that all the executors should act jointly Section 224 cannot be invoked to enable some of them alone to apply for probate.'
9. I have already expressed my view as to the effect of the appointment in this case which makes it difficult for me to accept the suggestion that the wishes of the testator would be met by the grant of probate only in favour of one of the partners of the firm of King and Partridge when all of them as a body is the executor appointed under the will, The difficulty is inherent in the appointment of a firm because it is not an incorporated entity and its appointment is in effect of the several persons who are its partners, and no partner derives authority because he is a partner, but because he is appointed as executor.
10. If the last sentence in the extract given above from the judgment of the Madras High Court, should be interpreted as meaning that the firm of King and Partridge consisting of several partners can function as executors or exercise the powers of executor, when one or some alone among them apply and take out probate, with respect, I find it difficult to accept the ruling for the reasons already discussed.
11. The papers filed in this petition will, therefore, be returned to the petitioner to represent them after the partners decide whether all or which of them should apply and in the latter event make it possible for this court to grant the prayer, by the rest of the partners renouncing their executorships.
12. Order accordingly.