1. This is an appeal by Hari Chaitanya Sinha Chowdhury who was appointed an executor of the will of his father Govinda Sundar Sinha Choudhuri against two orders of the District Judge of Berhampore, one dated the 29th August 1925, and the other dated the 12th September 1925. The facts shortly stated are these: Govinda died leaving four sons and his widow. He had five sons : (1) Hare Krishna who had pre-deceased him leaving's widow Chittasakhi and two sons Gopi Ballav and Radha Ballav, (2) Hare Ram, (3) Ram Ram, (4) Had Chaitanya and (5) Hare Hare who was a minor at the time of his death. The testator appointed five persons as executors of his will. The ninth paragraph of the will runs thus:
In order to carry on the work according to the terms of this will, I appoint my song Sriman Hare Ram Sinha Choudhuri Sriman Ram, Ram Sinha Choudhuri, Sriman Hari Chaitanya Sinha Choudhuri and on behalf of my minor grandsons, Gopi Ballav and Radha Ballav, their mother Chittasakhi Dassy and on behalf of my minor son Hare Hare Sinha Choudhury, my wife Srimati Krishna Kamini Choudhurani, these five persons, as the executors of my will.
2. Probate was taken of the will by Ram Ram and Hari Chaitanya. The order for probate was dated 7th August 1920, but the probate was not issued until the 2Lst April 1923. Hare Ram, the second son of the testator renounced his executorship. The two ladies Chittasakhi and Krishna Kamini did not apply for probate. On the 22nd December 1923, Hare Hare, the minor son of the testator and one of his grandsons Gopi, Billa who had attained majority applied for grant of probate. Subsequently, Badha Ballav attained majority and he also apparently applied for probate of the will of his grandfather. In the meantime, an application was made by some persons interested in the property of Govinda for appointment of what has been called a common manager under para. 10 of the will which provides that if there is any difference of opinion among the executors and for certain other reasons, the District Judge will appoint a fit person among the sons and grandsons of the testator as common manager according to law for the management of the estate.
3. The District Judge by his order of the 29th August appointed Rim Ram Sinha Choudhuri one of the executors who had obtained probate as common manager of the estate of the deceased under the terms of the will. By his other order of the 12th September, he appointed the three applicants Hare Hire Sinha Choudhury, Gopi Ballav and Radha Ballav as executors. The contention on behalf of the appellant is that these three persons cannot be appointed as executors under the terms of the will. It is urged that their mothers were appointed executors and these persons were not so appointed and, therefore, the learned Judge was wrong in granting probate to them. On behalf of these persons, it is urged by Mr. Bose that these minors were appointed executors by implication and what the testator meant was that during the minority of those persons, their mothers would act as executors: otherwise there would be no meaning in the expression used by the testator that Chittasakhi would be the executor 01 behalf of the minor grandsons Gopi Ballav and Ridha Billav and Krishna Kamini would be the executor on behalf of the minor Hare Hare Sinha Choudhuri.
4. It is contended that although the language is not according to the legal formula, the real intention of the testator was that these minors were really to be executors but during their minority, their mothers would act on their behalf. It appears to us that this argument is quite sustainable. That being so, there is nothing wrong in making a grant to these persons by the order of the District Judge. Under Section 7, Probate and Administration Act corresponding to Section 222(2), Indian Succession Act of 1925, an executor can be appointed by necessary implication, and we think that, in this particular case, the minors were appointed executors by necessary implication. If that is so, there is nothing wrong in the order of the learned Judge in making the order of grant of probate to the son of the testator, Hare Hare and his grandsons Gopi Ballav and Radha Ballav. This may be done under Section 224, Indian Succession Act of 1925, corresponding to Section 9, Probate and Administration Act. The illustration shows that in such a case probate may be granted at different times. The appeal, therefore, with regard to that order is dismissed.
5. The order of the 29th August 1925, stands on a different footing. Nothing has been shown to us on behalf of the common manager appointed, Ram Ram Sinha Choudhuri, by Babu Brojo Lal which authorizes the Court to make such an order as it has done. No doubt attempt has been made to bring this order within the provision of grants for limited purposes and it was argued that when a grant was made for a limited purpose either as regards the duration of time or for some other purpose, the grant expires on the happening of the event. Similarly, where the testator has made directions that, under certain circumstances, a common manager should be appointed by the Judge, by analogy it should be held that the previous grant made to Ram Ram and Hari Chaitanya jointly has come to an end; and that being so, the lower Court was competent to appoint another person as executor. It does not matter if the name has been given as 'common manager.'
6. The real substance is that Ram Ram has been appointed the sole executor and the other executor Hari Chaitanya has either been removed or has ceased to hold the office by reason of the events that have happened. It is very difficult to accept that contention. The District Judge has not removed any executor. On the other hand, he has granted probate to three other persons nominated by the testator. There were, therefore, five executors to whom probate has been granted. The grant has not been recalled with respect to any of them. The argument, therefore, that Ram Ram is now the sole executor must fail. The order of the District Judge dated the 28th August 1925, appointing Ram Ram as common manager must, accordingly, be set aside. The learned District Judge probably thought that he had the power to appoint a common manager according to the direction in the will. But the Judge could only exercise jurisdiction under the provisions of the statute. If the executors are guilty ot anything for which they are liable to be removed, the parties must take the, proper procedure for that purpose.
7. The result, therefore, is that this appeal is allowed in part and dismissed with regard to the rest. Respondents 2 to 4 will obtain their costs of this appeal from the appellant. Hearing-fee: five gold mohurs.
8. The appellant will get his costs as against respondent 1, Ram Rim. Hearing-fee: five gold mohurs. Respondent 5 will bear his own costs of this appeal.