The executor, once appointed, holds exclusive rights to administer the estate as per the Succession Act, and the Court cannot appoint a non-executor for such purposes.

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, dt. 13-2-1957 and 25-11-1965, executed by Hirjeebhoy Dinashaw 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 dt. 10th March, 1989. After the death of Chipubhai 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 S.302 of the 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 testimentary jurisdiction may be considered in the light of the provisions of the Succession Act .
"Executor" of a Will is the person to whom the execution of the Will of a deceased is, by the testator's appointment, confided [S.2(c) of the Succession Act .]. He administers the estate by virtue of the grant made in his favour by the probate [S.2(f) of the 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 [S.218 and S.219 of the 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 [S.234 of the 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 [S.258 of the Succession Act .]. The substance of the matter is that only a person who is granted the legal right to administration can administer the estate.

4. Consider the nature of the appointment sought in this petition. The petitioner who is administering the estate as an executor appointed by the Will wants the Court to "appoint to act along with the Petitioner". It is clear that the Petitioner due to his age wants someone to assist him. That is why he seeks the direction to appoint someone to "act". The capacity of the person sought to be appointed needs to be understood. Prayer (a) of the petition is revealing. The Petitioner wants such person to "act along with" him, for the purposes set out therein. The prayer proceeds to state the purpose of such appointment. Such person shall have "power to prosecute all pending proceedings and to give effectual discharge on behalf of the estate."
After the grant of probate, the power to prosecute legal proceedings belongs only to the executor and no other person. The executor as the legal representative can give discharge on behalf of the estate. Therefore, the Petitioner seeks the appointment of another person to perform the duties and exercise the powers of