Tuesday, 9 May 2017

Whether application for removal of executor of will can be moved prior to grant of probate?

 I return now to the question of when an application under Section 301 can be brought and, specifically, whether the grant of probate is a condition precedent to the maintainability of the application for removal. Here, Ms. Iyer is correct in saying that such an application can be brought at any time. The findings and observations in FSC Amalnathan4 are apposite:
"5. The learned Counsel for the respondent, during arguments, contended that as the will is still not probated this petition is not a maintainable under Section 213 of the Act. According to him the petitioners want to rely on the terms of the Will to contend that the respondent has acted against the wishes of the testatrix and that as such he is liable to be removed and that the petitioners cannot rely on the terms of the Will without the same having been probated. The sum and substance of the argument was that the contents of the Will cannot be looked into without the Will being probated and that as admittedly the Will is till not probated this petition itself is not maintainable. The learned counsel for the petitioners, however, contended that (sic) the Will cannot be made use of for the purpose to establish rights under the Will without the same being probated, there is no bar for the Will being relied upon for a collateral purpose. He relied upon the decision reported in John Guruprakasam v. Yovel Nesal (MANU/KE/0015/1979 : AIR 1979 Ker 96 : ILR (1978) 2 Kar 335. Relying the decision in Bali Ram Dhote v. Bhupendra Nath Banerjee, (MANU/WB/0130/1978 : AIR 1978 Cal 559) he contended that the property vests in the executor immediately on the death of the deceased and the probate is not necessary to make an executor act and that the executor can even effect a sale. He therefore contended that for removal of a private executor under Section 301 probate of the Will is not a condition precedent.
6. Under Section 211 of the Act an executor of a Will of the deceased is a legal representative of the deceased for all purposes and the property of the deceased vests in the executor immediately after the death. The law is fairly well settled that the executor can exercise his powers as executor and act in accordance with the terms of the Will even though probate of the Will is not granted. In fact one of the points of distinction between an executor and administrator is that the executor may act even before he obtains probate but an administrator cannot act unless letters of administration are granted to him. The interest of an executor in the estate of the deceased vests in him immediately on the death of the testator.
7. Section 222 of the Act stipulates that probate shall be granted only to the executor appointed under the Will. Under Section 229 when a person appointed as executor has not renounced the executorship, letters of administration cannot be granted to any other person until citation has been issued calling upon the executor to accept or renounce his executorship. Under Section 231, if an executor renounces or fails to accept an executorship within the time limits for the acceptance or refusing thereof then the Will may be proved and the letters of administration with a copy of the Will annexed may be granted to the person entitled to administration in case of intestacy. Thus, where an executor accepts executorship no one else can seek letters of administration. When such is the case, if an executor who starts functioning as an executor without obtaining probate and his actions are in derogation of the terms of the Will and prejudicial to the interest of the estate, the beneficiaries cannot remain helpless. They cannotassert their rights under the Will as legatees without probate of the Will by filing a suit. In such a case the remedy available is to apply to the court for removal of the executor under Section 301Such proceedings cannot be considered to be a proceeding to establish the right of an executor or legatee.
8. Section 213(1) reads as hereunder:
"No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed."
9. The Supreme Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose (MANU/SC/0399/1962 : AIR 1962 SC 1471) : 1962 All LJ 695 : ILR (1962) 2 All 683 has held that Section 213 acts as a bar to the establishment of rights under a Will by an executor or a legatee, unless probate or letters of administration of the Will have been obtained and that it is immaterial whether the right is claimed as the plaintiff or as a defendant. Thus the bar comes into play only when a right as an executor or a legatee under a Will is sought to be established. However an unprobated will can be admitted in evidence for collateral purposes in any proceeding other than a probate proceeding. This position is made clear in several decisions and also in the decision reported in John Guruprakasham's case (see also Mr. Sen's Indian Succession Act, 1955, second edition p. 425). As under law an executor is competent to administer the estate even without grant of probate, it has to be held that to maintain an application for his removal probate of the Will is not a condition precedent. The proceeding to remove an executor cannot be considered to be proceeding for establishment of right of an executor or a legateeIn the present case it is undisputed that the petitioners and respondent have been appointed as executors under the Will and that they have accepted executorship. As such it cannot be said that the petition is not maintainable under Section 301 only on the ground that probate of the Will has till not been granted.

IN THE HIGH COURT OF BOMBAY
Miscellaneous Petition No. 38 of 2011 in Testamentary Suit No. 9 of 2007 in Testamentary Petition No. 223 of 2006
Decided On: 14.12.2016
 Radhika Bhargava and Ors.
Vs.
Arjun Sahgal and Ors.

Hon'ble Judges/Coram:
G.S. Patel, J.

Citation: 2017 (1) ALLMR 652

1. This order will dispose of the Miscellaneous Petition filed in a pending probate Petition.
2. The Miscellaneous Petition seeks the removal of the first two Respondents, Dr Arjun Sahgal and Bharat Sahgal, the probate Petitioners, as executors a Will dated 30th September 2001 of one Malati Srivastav who died unmarried on 31st August 2005 with no lineal descendants. I have not found it necessary to examine the grounds of removal themselves. In the view that I have taken, and for the reasons that follow, I have held that the Miscellaneous Petition itself is not maintainable in its present form. I propose, however, to leave all contentions open to the Applicants for being taken in an appropriate proceeding unaffected by the present order. For convenience, I propose to refer to the Petitioners in the Miscellaneous Petition as "the Applicants" and the first two Respondents as "the Executors".
3. There is no dispute that the two Executors are named as such in the Will in question. It is also well settled that an executor is a creation of the Will that appoints him, and that he holds office as an executor only because of his appointment as such in the Will. The appointment is personal. Dr. Saraf for the Respondents in the Miscellaneous Petition is correct in pointing out that the very definition of an executor under Section 2(c) means a person to whom execution of the last Will of a deceased person is by the Testator's appointment, "confided". That word itself tells us of the personal nature of the investiture of an executor.
4. Before I turn to the application itself, it is perhaps best to have a quick look at some of the relevant provisions in the Indian Succession Act, 1925. Section 222 makes it quite clear that probate can only be granted to the executor appointed by the Will, and that this appointment may be express or by necessary implication. Sections 211 and 213 are relevant. They read thus:
"211. Character and property of executor of administrator as such.- (1) The executor or administrator, as the case may be, of a deceased person in his legal representative for all purposes, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person."
"213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2)......"
5. Section 301 deals with the powers of a Court to remove an execution. That Section reads thus:
"301. Removal of executor or administrator and provision for successor.- The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate."
6. It is necessary to note that in Section 301 there is, prima facie, a twin provision. The provision is not simpliciter for removal of an executor or an administrator. That power certainly exists, but it is coupled with a power which, in my reckoning, is more in the nature of an obligation or a duty to make provision for a successor. This is clear not only from the heading of the Section but also from the wording of the Section which gives the Court a power to remove a private executor or administrator and provide for succession of another person to that office. The reason is obvious. The law does not, I think, contemplate the kind of vacuum that would ensue if an executor, a creation of the Will, was to be removed and none was to be appointed in his or her place. The result would be that the probate Petition, one that could only be brought by the executor, would be effectively dismissed. It would be a headless Petition with none available or appointed to prosecute it or carry it further. Only an executor can hold that position.
7. What the present Miscellaneous Petition suggests is this: First that the two probate Petitioners be summarily removed as executors, i.e., that they be divested of their capacity as executors; and, second, that upon such removal - so specifically averred in paragraph 12 at page 70 - the Court Receiver or some other fit and proper person be appointed as an administrator of the estate under Section 247 of the Indian Succession Act, 1925.
8. Prayer clauses (a) and (b) are the principal prayers and they read as follows:
"(a) This Hon'ble Court be pleased to pass an Order removing/discharging the Respondents Nos. 1 and 2 Executors and Trustees appointed under the alleged Will of the Deceased dated 30th September 2001.
(b) This Hon'ble Court be pleased to appoint the Court Receiver, High Court, Bombay or any other fit and proper person/s as "Administrator/s Pendente Lite" of the estate and properties of the Deceased with directions as to the vesting of such estate and properties of the Deceased in such person appointed as "Administrator/s Pendente Lite" by this Hon'ble Court."
9. This raises two questions. First, whether in a Petition seeking probate, a person who has filed a Caveat, as the Applicants have, i.e., one who disputes and challenges the Will, can at all seek the removal of a probate Petitioner as an executor? Second, whether in a probate Petition, a Caveator can in addition seek to supplant the named executor by some other person as an administrator and seek a variety of interim reliefs including the appointment of a Receiver and various injunctions?
10. As to the first aspect of the matter, Ms. Iyer for the Applicants submits, and I think quite correctly, that no separate Suit for removal of the executors is necessary or even appropriate. She cites a number of authorities in this regard but I will take this principal as correct and as far too well-settled to admit of debate. That, however, is not the issue here. I contemplate a situation where, for instance, probate has already been issued and the executors, with a probate in their hands are functioning as such. One of the legatees or beneficiaries may then validly seek their removal on grounds of misconduct or for any of the other well-recognized reasons available in law that govern the exercise of discretion under Section 301. But I think it is quite a different proposition to say that even pending the probate Petition, the executor should be removed. This would result in the probate Petition being effectively decapitated and inevitably dismissed for there would be none available to take the matter through to probate. If on the other hand the application is for removal of the Executors and their substitution by a Court-appointed Officer, then two additional problems arise. First, obviously, no probate could be granted to such Court Officer; he could only seek Letters of Administration with Will Annexed. Second and perhaps more significantly, such an application would necessarily mean that the Applicant seeking removal and substitution accepts the correctness of the Will in question for the simple reason that the nomination of a person to the office of an executor is a matter that happens only because of the Will and not independently of it.
11. It is perfectly open to the Applicants in the Miscellaneous Petition to file a Suit disclaiming the Will in its entirety, seeking the appointment of an administrator and a restraint against the two executors from acting as such. I do not, however, see how the present application in this form is maintainable in the least. There was before me a similar case not long ago1 where a party sought both revocation of probate and removal of the executors. I held that both could not co-exist. I will accept, however, that the present case is at some distance from that decision and is on a somewhat different footing.
12. None of the authorities cited by Ms. Iyer seem cover a situation quite like this one. In fact, some of those authorities2 indicate that the desires of the testator as to who should be his executor should ordinarily be respected. I am unable to see any authority for the proposition that a caveator who disputes the very existence of the Will can seek removal of an executors appointed under that Will even before probate is granted; also seek to put the estate in the hands of some other person; and yet sustain a challenge to the Will in a probate Petition, one that can only be maintained by a person who has and holds the capacity of an executor.
13. Ms. Iyer's submission that the twin provisions of Section 301 must be read disjunctively, that is to say that in the discretionary exercise of power under that Section, a Court may remove an executor but not appoint another in his place must, I believe, be rejected outright. As I have noted, this creates an inconceivable legal vacuum for there would then be, in her formulation, none who could fill the role of executor created by the Will. None of the authorities she cites contemplate this situation.
14. Axiomatically, this means that a person cannot simultaneously challenge the Will and also seek removal of the executor appointed under it. The two reliefs cannot co-exists. The second assumes that there is an executor validly appointed under the Will, but that his conduct is such as would warrant his removal. He has failed to discharge his duties. This postulates an acceptance of the Will. If the Will itself is challenged, then the appointment of the executor is itself in doubt, and there is no question of his 'removal'; for that 'removal' is coupled with a substitution. If the probate petition fails, then there is simply no question of executorship. I will accept Ms. Iyer's proposition that an application for removal may be brought at any time, even before the grant of probate, and will return to this briefly a little later. But this only means that the executor, the person nominated in the Will to the position of executorship, is substituted by someone else who will then proceed to prove the Will in its solemn form.
15. For the present, I leave aside the question of whether, in this process of removal-and-succession, a Court can ever appoint a person not named as an executor to the position of an executor. Section 301, as we have seen, uses the phrase 'succession of any other person to the office of any such executor'. An executor, as Dr Saraf has pointed out, is a named person, one to whom, under Section 2(c), the execution of the Will is confided. A rank outsider is not such a person. Section 222 in turn makes it clear that probate can be granted only to an executor appointed by the Will, and which appointment may be express or by necessary implication. A person not named in the Will cannot 'succeed' to the office on removal of the named executor. This is important, because, and this is well-settled, on a conjoint reading of Sections 227 ("Effect of probate") and 220 ("Effect of Letters of Administration"), the distinction between an executor and an administrator is that the executor may act even before he obtains probate, but an administrator cannot act unless Letters of Administration are granted to him.3 In a situation where, for instance, a will appoints several persons as executors not jointly but each to assume office on the failure of the preceding named person, then a court may remove one and provide for 'succession' by the next named executor. But where the sole executor (or all executors) are removed, then the appointment would have to be of one who must obtain Letters of Administration with Will Annexed. The procedure for proving the will would remain unchanged; the capacity of the person seeking to prove the will would, however, stand altered, as would the form of the application.
16. None of the nine authorities cited by Ms. Iyer deal even remotely with a situation where a party opposed the grant of probate and simultaneously sought removal of the executor. The reliance on Karam Devi v Radha Kishan & Ors. MANU/LA/0351/1935 : AIR 1935 Lah 406. is wholly misplaced. The question there was whether a civil suit for removal of an executor would lie, or whether there was an 'ouster' of a civil court's jurisdiction. Indeed, there are observations here that seem to me to militate against acceptance of what Ms. Iyer commends. For instance, the Karam Devi court clearly said that the right to act as an executor of a Will can be created only by the Will itself. This is perfectly correct, and it leads us directly to the proposition that an application under Section 301 for removal of the executor can only be maintained by one who accepts the Will but not the continued executorship of it of the present incumbent.
17. The decisions in Sailabala Dasi v Baidya Nath Rakshit & Anr. MANU/WB/0081/1928 : XXXII CWN 729, Samir Chandra Das v Bibhas Chandra Das & Ors. MANU/SC/0348/2010 : (2010) 6 SCC 432 and Chiranjilal Goenka v Jasjit Singh MANU/SC/0496/1993 : (1993) 2 SCC 507. do not assist Ms. Iyer either. In the first of these, the executor in question initially disputed the Will; he then asked for probate of it. The Court held that probate could not be refused to him. Samir Chandra Das dealt with the manner of renunciation, and it is not an authority for the proposition that an opponent to the Will - one who disputes it entirely - can seek 'removal' of an executor. Similarly, Chiranjilal Goenka does not deal with such a situation either. Indeed, the emphasis placed on paragraph 15 of this decision is probably counter to the proposition being canvassed by Ms. Iyer before me:
15. In Ishwardeo Narain Singh v. Smt. Kamta Devi [MANU/SC/0125/1953 : AIR 1954 SC 280] this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Therefore the only issue in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the willThus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself.
16. The grant of a probate by court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith. The decision of the probate court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh v. Ramnandan Prasad Narayan Singh [MANU/PR/0068/1916 : ILR (1916) 43 Cal 694 : MANU/PR/0068/1916 : AIR 1916 PC 78 : MANU/PR/0068/1916 : 43 IA 91] the Judicial Committee was to consider whether the will which had been affirmed by a court of competent jurisdiction, would not be impugned in a court exercising original jurisdiction (civil court) in suit to declare the grant of probate illegal etc. The Privy Council held that the civil court has no jurisdiction to impugn the grant of probate by the court of competent jurisdiction. In that case the subordinate court of Muzaffarabad was held to have had no jurisdiction to question the validity of the probate granted by the Calcutta High Court. In Narbheram Jivram Purohit v. Jevallabh Harjivan[MANU/MH/0198/1932 : AIR 1933 Bom 469 : 35 BLR 998 : 147 IC 362] probate was granted by the High Court exercising probate jurisdiction. A civil suit on the original side was filed seeking apart from questioning the probate, also other reliefs. The High Court held that when a probate was granted, it operates upon the whole estate and establishes the will from the death of the testator. Probate is conclusive evidence not only of the factum, but also of the validity of the will and after the probate has been granted, it is incumbent of a person who wants to have the will declared null and void, to have the probate revoked before proceeding further. That could be done only before the probate court and not on the original side of the High Court. When a request was made to transfer the suit to the probate court, the learned Judge declined to grant the relief and stayed the proceeding on the original side. Thus it is conclusive that the court of probate alone had jurisdiction and is competent to grant probate to the will annexed to the petition in the manner prescribed under the Succession Act. That court alone is competent to deal with the probate proceedings and to grant or refuse probate of the annexed will. It should keep the original will in its custody. The probate thus granted is conclusive unless it is revoked. It is a judgment in rem.
(Emphasis added)
18. What this makes clear is that an application for probate may be contested from the very inception. Once granted, the probate operates in rem. No separate suit lies to set it aside. An application must be made to the probate court for revocation. But this does not mean that a person who challenges the Will itself - and, therefore, necessarily all constituent parts of it - can seek the removal of an executor, who holds office because of the Will, and his substitution (whatever the wording) of anyone else who would then have seizin over the whole of the estate. The substituted person would, necessarily, step into the shoes of the executor, the named person being found unfit for the intended purpose. This, equally necessarily, posits an a priori acceptance of the dispositions in the Will, but only challenges the fitness of the person charged with effecting that testamentary disposition, viz., the executor.
19. The decision of this Court in Jerbanoo Rustomji Garda v Pootlamai Manecksha Mehta MANU/MH/0176/1955 : AIR 1955 Bom 447 was on question of res-judicata, an issue that does not arise here. Ms. Iyer's submission that this decision is an authority for the proposition that an opposition to a probate application does not precluding an application for removal is incorrect. Jerbanoo Rustomji Garda dealt with no such situation at all.
20. Nagubai Ammal & Ors. v B. Shama Rao & Ors. MANU/SC/0089/1956 : AIR 1956 SC 593 is a locus classicus on many other aspects of law, including variance between pleadings and proof and estoppel, but does not cover the case at hand. Rulhu Ram Dewat Ram v Than Singh & Ors. MANU/PH/0133/1966 : AIR 1967 P&H 328 was a case decided under the Evidence Act and dealt with admissions and estoppel, matters that do not fall for consideration before me.
21. PB Srinivasan & Anr. v TPS Vardhan 1981 MLJ 158 (DB) is an interesting decision. There, the named executor set up a title hostile to the estate. He was sought to be removed. The important aspect to be noted is that the applicant seeking removal did not challenge the will at all. The applicant espoused the will and sought its implementation; the case was that the executor was acting mala fide in defeasance of the testamentary bequest and should, therefore, be removed. This authority, correctly read, is against the proposition Ms. Iyer canvasses. All that the court said is that the relief under Section 301 could not be granted in regular civil suit (before the district Court) and that it was the High Court alone that could remove an executor. This is clear from a plain reading of Section 301, which confers the discretionary power exclusively on the High Court.
22. I return now to the question of when an application under Section 301 can be brought and, specifically, whether the grant of probate is a condition precedent to the maintainability of the application for removal. Here, Ms. Iyer is correct in saying that such an application can be brought at any time. The findings and observations in FSC Amalnathan4 are apposite:
"5. The learned Counsel for the respondent, during arguments, contended that as the will is still not probated this petition is not a maintainable under Section 213 of the Act. According to him the petitioners want to rely on the terms of the Will to contend that the respondent has acted against the wishes of the testatrix and that as such he is liable to be removed and that the petitioners cannot rely on the terms of the Will without the same having been probated. The sum and substance of the argument was that the contents of the Will cannot be looked into without the Will being probated and that as admittedly the Will is till not probated this petition itself is not maintainable. The learned counsel for the petitioners, however, contended that (sic) the Will cannot be made use of for the purpose to establish rights under the Will without the same being probated, there is no bar for the Will being relied upon for a collateral purpose. He relied upon the decision reported in John Guruprakasam v. Yovel Nesal (MANU/KE/0015/1979 : AIR 1979 Ker 96 : ILR (1978) 2 Kar 335. Relying the decision in Bali Ram Dhote v. Bhupendra Nath Banerjee, (MANU/WB/0130/1978 : AIR 1978 Cal 559) he contended that the property vests in the executor immediately on the death of the deceased and the probate is not necessary to make an executor act and that the executor can even effect a sale. He therefore contended that for removal of a private executor under Section 301 probate of the Will is not a condition precedent.
6. Under Section 211 of the Act an executor of a Will of the deceased is a legal representative of the deceased for all purposes and the property of the deceased vests in the executor immediately after the death. The law is fairly well settled that the executor can exercise his powers as executor and act in accordance with the terms of the Will even though probate of the Will is not granted. In fact one of the points of distinction between an executor and administrator is that the executor may act even before he obtains probate but an administrator cannot act unless letters of administration are granted to him. The interest of an executor in the estate of the deceased vests in him immediately on the death of the testator.
7. Section 222 of the Act stipulates that probate shall be granted only to the executor appointed under the Will. Under Section 229 when a person appointed as executor has not renounced the executorship, letters of administration cannot be granted to any other person until citation has been issued calling upon the executor to accept or renounce his executorship. Under Section 231, if an executor renounces or fails to accept an executorship within the time limits for the acceptance or refusing thereof then the Will may be proved and the letters of administration with a copy of the Will annexed may be granted to the person entitled to administration in case of intestacy. Thus, where an executor accepts executorship no one else can seek letters of administration. When such is the case, if an executor who starts functioning as an executor without obtaining probate and his actions are in derogation of the terms of the Will and prejudicial to the interest of the estate, the beneficiaries cannot remain helpless. They cannotassert their rights under the Will as legatees without probate of the Will by filing a suit. In such a case the remedy available is to apply to the court for removal of the executor under Section 301Such proceedings cannot be considered to be a proceeding to establish the right of an executor or legatee.
8. Section 213(1) reads as hereunder:
"No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed."
9. The Supreme Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose (MANU/SC/0399/1962 : AIR 1962 SC 1471) : 1962 All LJ 695 : ILR (1962) 2 All 683 has held that Section 213 acts as a bar to the establishment of rights under a Will by an executor or a legatee, unless probate or letters of administration of the Will have been obtained and that it is immaterial whether the right is claimed as the plaintiff or as a defendant. Thus the bar comes into play only when a right as an executor or a legatee under a Will is sought to be established. However an unprobated will can be admitted in evidence for collateral purposes in any proceeding other than a probate proceeding. This position is made clear in several decisions and also in the decision reported in John Guruprakasham's case (see also Mr. Sen's Indian Succession Act, 1955, second edition p. 425). As under law an executor is competent to administer the estate even without grant of probate, it has to be held that to maintain an application for his removal probate of the Will is not a condition precedent. The proceeding to remove an executor cannot be considered to be proceeding for establishment of right of an executor or a legatee. In the present case it is undisputed that the petitioners and respondent have been appointed as executors under the Will and that they have accepted executorship. As such it cannot be said that the petition is not maintainable under Section 301 only on the ground that probate of the Will has till not been granted.
(Emphasis added)
23. The emphasized observations in paragraph 7 are crucial, and they are fatal to Ms. Iyer's case, for they clearly postulate that the application for removal under Section must be brought by a legatee or beneficiary, i.e., one who accepts the testamentary dispositions but challenges the authority or capacity of the person charged with effecting those, viz., the named executor. At the cost of repetition:
"... If an executor who starts functioning as an executor without obtaining probate and his actions are in derogation of the terms of the Will and prejudicial to the interest of the estate, the beneficiaries cannot remain helpless. They cannot assert their rights under the Will as legatees without probate of the Will by filing a suit. In such a case the remedy available is to apply to the court for removal of the executor under Section 301."
24. Now this is very different from an application for the appointment of an administrator pendente lite:
"247. Administration, pendente lite.- Pending any suit touching the validity of the Will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction."
25. This application clearly is one not under Section 301 but one that must be brought in a regular suit for administration of the estate (as on intestacy). This administrator is not the 'successor' to the office contemplated under Section 301 at all. He is the appointee of the Court and operates under the Court's supervision. Further, this is an application that can be made even during the pendency of a probate petition; and Ms. Iyer's clients are, of course, fully at liberty to file such a suit if they are able and to make an appropriate application for an administrator pendente lite. This is not the same as an application for removal, and such a suit need not even seek an executor's removal, for it makes out a case that there is no will at all, and therefore, no question of any person being an executor under that will. The challenge is fundamental and goes to the root of the appointment itself. There can be no question of 'removal' of an executor in such a case. This does mean, however, that Ms. Iyer's clients would have to pay the requisite court fees on such a suit. That option is not and cannot be foreclosed and, should such a suit be filed and application for an administrator pendente lite made, it will have to be addressed on its own merits.
26. The following propositions may be culled from this discussion:
"(a) An application under Section 301 of the Succession Act can only be made to the High Court.
(b) Such an application can be brought at any time even during the pendency of a probate petition or one for Letters of Administration with or without Will annexed. The grant of probate or Letters of Administration is not a condition precedent to the maintainability of such an application.
(c) Where a Will is propounded and an application for removal of an executor is made under Section 301, that application can only be made by a beneficiary or legatee who accepts the Will. It cannot be made by a person who seeks to dislodge the Will or contests the application for probate or Letters of Administration with Will Annexed. The application for removal posits the acceptance of a Will.
(d) Any application for removal of an executor must necessarily be read as one for the appointment of a successor in place and stead of that executor. There can be no application for removal of an executor or administrator under Section 301 without the appointment of a successor to take his place."
27. In my view, the Miscellaneous Petition is misconceived and not maintainable. I will dismiss it on that ground and for the reasons I have indicated. I clarify that I have expressed no opinion whatsoever on the merits of the Applicants' case as to the conduct of the probate Petitioners. The Applicants will be at liberty to adopt such proceedings as they may be advised for the protection of the estate, the appointment of an administrator and for such other reliefs as are thought appropriate.
28. No costs.





1Abha Dastane-Rao & Anr. v Prabhakar Deolankar & Ors, Miscellaneous Petition (L) No. 98 of 2015, decided on 17th February 2016.

2For instance, FCS Amalnathan & Ors. v JS Victor Basco, MANU/KA/0045/1995 : AIR 1995 Kant 258.

3See FCS Amalnathan, supra, paragraph 6.


4Supra.
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