For the aforesaid reasons, we find that finding of the
learned Single Judge that application under Section 301 for removal
of executor can be made only by a beneficiary and legatee who
accepts the Will and cannot be made by a person who seeks to
dislodge the Will or contest the application for probate or Letters of
Administration with Will annexed, is not sustainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.56 OF 2017
Smt. Radhika Bhargava V/s Dr. Arjun Sahagal,
CORAM:
B. R. GAVAI &
RIYAZ I. CHAGLA, JJ.
Judgment pronounced on 11th January, 2019.
Citation: AIR 2019 Bom 68
ORAL JUDGMENT: (Per B.R. Gavai, J.)
1] An important question, 'as to whether the application under
Section 301 of the Indian Succession Act, 1925 (hereinafter referred
to as “the Succession Act”) can be made only by a beneficiary or
legatee, who accepts the Will and, as to whether it cannot be made by
a person who seeks to dislodge the Will or contest the application for
probate or Letters of Administration with Will annexed', arises for
consideration in the present appeal.
2] The bare necessary facts for deciding the present appeal are as
under:3]
One Malati Srivastava (hereinafter referred to as “the
deceased”) expired on 31/08/2005, leaving behind her 9 nephews/
nieces being sons and daughters of her predeceased brothers/sisters
and her sisters in law (being the widows of her predeceased brothers)
as her only legal heirs. The deceased had left behind, as part of her
estate, various immovable properties as well as jewellery and shares
etc. One of the most valuable assets left behind by the deceased was
a Flat being Flat No. 303, Belmont, Napean Sea Road, Mumbai
alongwith Garage (Hereinafter referred to as “the Belmont Flat”)
4] Respondent Nos. 1 and 2 herein filed Probate Petition No. 223
of 2006 for propounding the Will dated 30/09/2001 of the deceased.
Under the said Will, Respondent Nos. 1 and 2 were appointed as
Executors and Trustees of the Estate of the deceased. Similarly, by
the said Will, the Belmont Flat has been bequeathed to Respondent
Nos. 1 and 2. The Will did not make any provision for remainder
estates of the deceased, which therefore, according to the Appellants,
devolved as of intestacy.
5] In the proceedings of the Probate Petition, Appellants and
Respondent No.5 lodged Caveats and filed Affidavits in support
thereof, for opposing the grant of Probate of the Will. As such, the
Probate Petition came to be converted into Testamentary Suit No. 9 of
2007. According to the Appellants, Respondent Nos. 1 and 2 were
not properly administering the estate of the deceased. In a nutshell, it
was their case that though certain details were sought from the said
Respondents, they were not responding. As such, the Appellants were
required to file Misc. Petition No.38 of 2011 under the provisions of
Section 301 of the Succession Act. Certain directions came to be
issued by the learned Single Judge in the said proceedings. However,
it appears that, a preliminary objection to the tenability of the said
proceedings under Section 301 came to be raised by Respondent Nos.
1 and 2, on the ground that the application under Section 301 can be
made only by a beneficiary or legatee who accepts the Will and it
cannot be made by a person who seeks to dislodge the Will or contest
the application for Probate or Letters of Administration with Will
annexed.
6] The learned Single Judge framed the following two questions in
para 9 of his Judgment, which read as under:“
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?”
7] After considering the rival submissions and various authorities
cited at the Bar, the learned Single Judge concluded in para 26 of his
Judgment as under:“
26. The following propositions may be culled
from the 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 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.”
After making the above observations, the learned Single Judge held
the Misc. Petition to be misconceived and not maintainable. Being
aggrieved thereby, the present appeal.
8] Ms. Iyer, the learned Senior Counsel appearing on behalf of the
Appellants, submits that the learned Single Judge has erred in holding
that the said Misc. Petition was miscellaneous proceedings in Probate
Petition, whereas, as a matter of fact, the said proceedings were
independent proceedings under Section 301 and not the
miscellaneous proceedings in Probate Petition. She submits that,
though, initially, inadvertently the said Misc. Petition came to be filed
as proceedings in Testamentary Suit No.9 of 2007 in Testamentary
Petition No.223 of 2006, the Appellants had specifically taken out
Chamber Summons No. 3 of 2012 for amendment to the Misc.
Petition for correcting the obvious error. She submits that the learned
Single Judge vide order dated 30/07/2013, after contest, had allowed
the Appellants to amend the Misc. Petition. She submits that,
accordingly, in view of the order passed in the said Chamber
Summons No. 3 of 2012, the cause title of Misc. Petition came to be
amended, thereby making it an independent proceedings. She
therefore submits that the learned Single Judge has erred in holding
that the Misc. Petition was a proceeding in Testamentary Petition.
9] She further submits that, finding of the learned Single Judge
that the application under Section 301 can be made only by a
beneficiary or legatee who accepts the Will and cannot be made by
any person who challenges the Will, is also not sustainable. She
submits that a bare reading of Section 301 would reveal that no such
restriction is provided under the statute. She submits that if the
finding, as recorded by the learned Single Judge, is to be accepted
then the same would amount to permitting judicial legislation. She
submits that when the language of statute is clear, the Court, by
judicial interpretation, cannot supply the words in the provision. She
relies in this respect on the judgment of Constitution Bench of the
Hon'ble Apex Court in the case of Union of India and another vs.
Hansoli Devi and others1
10] The learned Senior Counsel for the Appellants, further submits
that the finding of the leaned Single Judge that the Appellants cannot
be permitted to approbate and reprobate, is also not correct in law.
She submits that Equitable doctrine of election cannot be imported
into the proceedings under the Succession Act. She relies on the
following judgments in this regard:(
i) Sailabala Dasi Vs. Baidya Nath Rakshit & Anr2
(ii) Samir Chandra Vs. Bibhas Chandra Das3 (para 17)
(iii) Chiranjilal Goenka Vs. Jasjit Singh4 (paras 15 and 17)
She submits that the remedy, opposing the grant of probate, is
independent than the remedy which is provided under Section 301 of
the Succession Act. She submits that, if a person, who is entitled to
1 AIR 2002 SC 3240
2 Vol. XXXII Cal WN 729
3 2010 (5) Mh.L.J. 584
4 1993(2) SCC 507
some interest in the estate of the deceased, finds that the executor is
misadministering
the estate or acting in a dishonest and malafide
manner, then the only remedy to such a person is to file proceedings
under Section 301. She therefore submits that merely because such a
beneficiary has also opposed the grant of probate, cannot be a ground
to stop him from filing an application under Section 301.
11] The learned Senior Counsel further submits that the learned
Single Judge, subsequently, in Notice of Motion No.74 of 2015 in
Testamentary Suit No. 14 of 2004 in Testamentary Petition No.80 of
2004 (Vasant Narayan Sardal vs. Ashita Tham & Ors), vide order
dated 03/05/2018, has himself held that the Court was not
powerless under Section 301 and entitled to invoke the powers under
Section 301 suo motu for removal of the executor and appointed
Officer of this Court in place of the Plaintiff in Testamentary Suit and
allowed to convert the Suit to one for Letters of Administration with
Will annexed. The learned Senior Counsel submits that the same
course of action could have been followed by the learned Single
Judge, in the present matter also.
12] Mr. Andhyarujina, the learned Counsel appearing on behalf of
Respondent Nos. 1 and 2, submits that clause (c) of Section 2 read
with Section 222, would reveal that the executor is a person who has
been appointed under the Will for execution of the Will and the
probate can be granted only to the executor appointed by the Will.
The learned Counsel submits that right to executorship flows through
the Will and therefore if the executor appointed under the Will is to
be removed, such can be done only by a person who has accepted the
Will. He submits that the learned Single Judge has therefore rightly
considered the issue. He submits that the learned Single Judge of
this Court in the case of In re : Rustam Ardeshir Garat, Petitioner5 has
held that a person not named as executor, cannot be appointed to
assist the executor. Mr. Andhyarujina further submitted that the
appropriate remedy for the Appellants would be to move the Court
under section 247 of the said Act for appointment of Administrator
pendente lite administration suit which is already filed by the
appellants.
5 AIR 1990 Bombay 111
13] For appreciating the rival submissions, we will have to refer to
the provisions of Section 301, which read 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.”
Perusal of Section 301 would reveal that the High Court may, on
application made to it, suspend, remove or discharge any private
executor or administrator. It also provides, that the High Court shall
also provide for the succession of another person to the office of any
such executor or administrator who may cease to hold the Office and
vest in such successor any property belonging to the estate. It could
thus be seen that the plain reading of Section 301 does not put any
restriction with regard to the person or class of persons who are
eligible or ineligible to make an application before the Court.
14] It is now more than well settled position of law that the words
of a statute must be understood in their natural, ordinary or popular
sense and construed according to their grammatical meaning unless
such construction leads to some absurdity or unless there is
something in the context or in the object of the statute to the
contrary. It is also equally well settled that when the words of the
statute are clear, plain and unambiguous, then the courts are bound
to give effect to that meaning irrespective of the consequences. It will
be relevant to refer to the following observations of their Lordships of
the Apex Court in the case of Union of India through Director of
Income Tax vs Tata Chemicals Limited6.
“22. It is cardinal principle of interpretation of statutes
that the words of a statute must be understood in their
natural, ordinary or popular sense and constructed
according to their grammatical meaning unless such
construction leads to some absurdity or unless there is
something in the context or in the object of the statute to
the contrary. The golden rule is that the words of a statute
must prima facie be given their ordinary meaning. It is yet
another rule of construction that when the words of a
statute are clear, plain and unambiguous, then the courts
6 (2014) 6 SCC 335
are bound to give effect to that meaning irrespective of the
consequences. It is said that the words themselves best
declare the intention of the law giver. The courts have
adhered to the principle that efforts should be made to give
meaning to each and every words used by the legislature
and it is not a sound principle of construction to brush aside
words in a statute as being inapposite surpluses, if they can
have proper application in circumstances conceivable
within the contemplation of the statute. (See
Gurudevadatta VKSS Maryadit vs. State of Maharashtra
[(2001) 4 SCC 534]).”
15] It will be relevant to refer to the following observations of the
Constitution Bench in the case of Union of India and another vs.
Hansoli Devi and others (cited supra), which read thus:“
It is a cardinal principle of construction of statute that
when language of the statute is plain and unambiguous,
then the Court must give effect to the words used in the
statute and it would not be open to the Courts to adopt
a hypothetical construction on the ground that such
construction is more consistent with the alleged object
and policy of the Act. It is no doubt true that if on going
through the plain meaning of the language of statute, it
leads to the anomalies, injustices and absurdities, then
the Court may look into the purpose for which the
statute has been brought and would try to give a
meaning which would adhere to the purpose of the
statute.”(Para 4).
It could thus be seen that it is the cardinal principle of construction
of statute that when language of the statute is plain and
unambiguous, the Court is required to give effect to the words used
in the statute and it will not be open to the Court to adopt
hypothetical construction on the ground that such construction is
more consistent with the alleged object and policy of the Act. Only
if, on going through the plain meaning of the language of the statute,
it is found that it leads to anomalies, injustices and absurdities, the
Court may look in to the purpose for which the statute has been
brought and would try to give meaning, which would adhere to the
purpose of the statute.
16] It is also equally well settled that casus omissus is not to
be readily inferred. It will be relevant to refer to recent judgment of
their Lordships of the Hon'ble Apex Court in the case of Singareni
Collieries Company Limited vs. Vemuganti Ramakrishan Rao and
Others7 wherein their Lordships have discussed the earlier judgments
on casus omissus. In the said judgment, their Lordships have
observed thus:“
21. The legal position prevalent in this country is not much different
from the law as stated in England. This Court has in several decisions
held that casus omissus cannot be supplied except in the case of clear
necessity and when reason for it is found within the four corners of the
statute itself. The doctrine was first discussed by V.D. Tulzapurkar, J. in
CIT v. National Taj Traders [(1980) 1 SCC 370 : 1980 SCC (Tax) 124].
Interpretative assistance was taken by this Court from Maxwell on
Interpretation of Statutes (12th Edn.), pp. 33 and 47. The Court said:
(SCC pp. 37576,
para 10)
“10. Two principles of construction—one relating to casus omissus and
the other in regard to reading the statute as a whole—appear to be well
settled. In regard to the former the following statement of law appears in
Maxwell on Interpretation of Statutes (12th Edn.) at p. 33:
Omissions not to be inferred.—It is a corollary to the general rule of
literal construction that nothing is to be added to or taken from a
statute unless there are adequate grounds to justify the inference that
the legislature intended something which it omitted to express. Lord
Morsey said: ‘It is a strong thing to read into an Act of Parliament
words which are not there, and in the absence of clear necessity it is a
wrong thing to do’. ‘We are not entitled’, said Lord Loreburn L.C., ‘to
read words into an Act of Parliament unless clear reason for it is to be
found within the four corners of the Act itself.’ A case not provided for
in a statute is not to be dealt with merely because there seems no good
7 (2013) 8 SCC 789
reason why it should have been omitted, and the omission in
consequence to have been unintentional.
In regard to the latter principle the following statement of law appears in
Maxwell at p. 47:
A statute is to be read as a whole.—It was resolved in Lincoln College
case [(1595) 3 Co Rep 58 b : 76 ER 764] that the good expositor of an
Act of Parliament should ‘make construction on all the parts together,
and not of one part only by itself.’ Every clause of a statute is to ‘be
construed with reference to the context and other clauses of the Act, so
as, as far as possible, to make a consistent enactment of the whole
statute’. (Per Lord Davey in Canada Sugar Refining Co. Ltd. v. R. [1898
AC 735 (PC)] )
In other words, under the first principle a casus omissus cannot be
supplied by the court except in the case of clear necessity and when
reason for it is found in the four corners of the statute itself but at the
same time a casus omissus should not be readily inferred and for that
purpose all the parts of a statute or section must be construed together
and every clause of a section should be construed with reference to the
context and other clauses thereof so that the construction to be put on a
particular provision makes a consistent enactment of the whole statute.
This would be more so if literal construction of a particular clause leads
to manifestly absurd or anomalous results which could not have been
intended by the legislature. ‘An intention to produce an unreasonable
result’, said Danckwerts, L.J., in Artemiou v. Procopiou [(1966) 1 QB
878 : (1965) 3 WLR 1011 : (1965) 3 All ER 539 (CA)] ‘is not to be
imputed to a statute if there is some other construction available.’ Where
to apply words literally would ‘defeat the obvious intention of the
legislation and produce a wholly unreasonable result’ we must ‘do some
violence to the words’ and so achieve that obvious intention and produce
a rational construction. [Per Lord Reid in Luke v. IRC[1963 AC 557 :
(1963) 2 WLR 559 : (1963) 1 All ER 655 (HL)] where at AC p. 577 (All
ER p. 664I) he also observed: ‘This is not a new problem, though our
standard of drafting is such that it rarely emerges’.] In the light of these
principles we will have to construe subsection
(2)(b) with reference to
the context and other clauses of Section 33B.”
22. Arijit Pasayat, J. has verbatim relied upon the above in Padma
Sundara Raov. State of T.N. [(2002) 3 SCC 533] ,Union of India v.
Dharamendra Textile Processors [(2008) 13 SCC 369] ,Nagar Palika Nigam v.
Krishi Upaj Mandi Samiti[(2008) 12 SCC 364] ,Sangeeta Singh v. Union of
India [(2005) 7 SCC 484], State of Kerala v. P.V. Neelakandan Nair [(2005)
5 SCC 561 : 2005 SCC (L&S) 698] , Union of India v. Priyankan Sharan
[(2008) 9 SCC 15] , Maulavi Hussein Haji Abraham Umarjiv. State of Gujarat
[(2004) 6 SCC 672 : 2004 SCC (Cri) 1815 : 2004 Cri LJ 3860] ,Unique
Butyle Tube Industries (P) Ltd. v. U.P. Financial Corpn.[(2003) 2 SCC
455] ,Union of India v. Rajiv Kumar [(2003) 6 SCC 516 : 2003 SCC (L&S)
928] , Shiv Shakti Coop. Housing Society v. Swaraj Developers [(2003) 6 SCC
659] , Prakash Nath Khanna v. CIT [(2004) 9 SCC 686], State of Jharkhand
v. Govind Singh [(2005) 10 SCC 437 : 2005 SCC (Cri) 1570] and Trutuf
Safety Glass Industries v. CST [(2007) 7 SCC 242] .
23. In Padma Sundara Rao [(2002) 3 SCC 533] this Court examined
whether the doctrine of casus omissus could be invoked while interpreting
Section 6(1) of the Land Acquisition Act so as to provide for exclusion of
time taken for service of copy of the order upon the Collector. Repelling the
contention this Court said: (SCC p. 542, paras 12 & 14)
“12..… the court cannot read anything into a statutory provision
which is plain and unambiguous. A statute is an edict of the legislature.
The language employed in a statute is the determinative factor of
legislative intent. The first and primary rule of construction is that the
intention of the legislation must be found in the words used by the
legislature itself. The question is not what may be supposed and has been
intended but what has been said.
***
14. While interpreting a provision the court only interprets the law
and cannot legislate it. If a provision of law is misused and subjected to
the abuse of process of law, it is for the legislature to amend, modify or
repeal it, if deemed necessary.”
24. There is in the case at hand no ambiguity nor do we see any
apparent omission in Section 11A
to justify application of the doctrine of
casus omissus and by that route rewrite Section 11A
providing for
exclusion of time taken for obtaining a copy of the order which exclusion is
not currently provided by the said provision. The omission of a provision
under Section 11A
analogous to the proviso under Section 28A
is
obviously not unintended or inadvertent which is the very essence of the
doctrine of casus omissus. We, therefore, have no hesitation in rejecting
the contention urged by Mr Altaf Ahmad.”
17] It is equally well settled that for the purpose of providing casus
omissus, all the parts of a statute or section must be construed
together and every clause of a section should be construed with a
reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a consistent
enactment of the whole statute. The reasons for the same are
required to be found in the four corners of the statue itself and it can
be done only in the case of clear necessity. It could thus be seen that
it is more than well settled that the first principle of interpretation is
that of plain and literal interpretation. Only when the provision is
found to be ambiguous, it will be permissible for the Court to take
recourse to the other principles of interpretation.
18] As discussed hereinabove, perusal of Section 301 would reveal
that the said provision cannot be said to be ambiguous or one,
leading to anomalies, injustices and absurdities. It will be relevant to
note that Section 301 falls in Part IX of the Succession Act, which
deals with Probate, Letters of Administration and Administration of
Assets of Deceased. Perusal of Section 234 of the Succession Act
shows that it deals with grant of administration where no executor,
nor residuary legatee nor representative of the said legatee is
available. It provides that in such cases, Letters of Administration
could be granted to various persons including creditor. Section 301
also comes under the same part. Neither the learned Counsel for
Respondent Nos. 1 and 2 have been in a position to point out nor
could we notice any provision under the Succession Act, which could
show that the legislative intent was to restrict the class of applicants
only to the persons who are legatees or beneficiaries of the Will who
accepted the Will, nor could we find out any provision which would
show that the legislative intent was to debar a person, who has
challenged the probate, from making an application under Section
301.
19] We further find that the learned Single Judge has also erred in
considering the Misc. Petition under Section 301 to be proceeding
filed in Testamentary Petition. Firstly, it appears that the learned
Single Judge has not noticed that though, inadvertently, the said
Misc. Petition came to be filed as Misc. Petition in Testamentary Suit
and Petition, the learned Single Judge of this Court vide order dated
30/07/2013 in chamber Summons No. 3 of 2012 had allowed the
Chamber Summons No.3 of 2012 for amending the Misc. Petition. It
will be relevant to refer to the observations of the learned Single
Judge while allowing the Chamber Summons, which read thus:“
6............From perusal of prayers in the Misc.
Petition, it is clear that all the prayers which are
sought to be pressed by the petitioner, pertains to
removal of the executors and nothing else. I am
thus inclined to accept the submission of the
learned senior counsel for the petitioner that the
Misc. Petition has been wrongly described as a
petition in testamentary suit which error is an
inadvertent error and can be permitted to be
corrected by granting this Chamber Summons.
No prejudice would be caused to the respondent
if the said amendment is allowed. Petitioner has
already paid requisite court fees payable on the
said Misc. petition. Chamber Summons is
accordingly made absolute in terms of prayer
clauses (a) and (b)...........”
In pursuance to the said Order passed by the learned Single Judge,
the necessary amendment were carried out on 06/08/2013. It is thus
amply clear that Misc. Petition No.38 of 2011 was not a proceeding in
the said Suit and Petition but was an independent proceeding.
20] It will be further relevant to refer to the observations of the
Division Bench of the Lahore High Court in the case of Karam Devi vs.
Radha Kishan and others8, which read thus:“
When a new cause of action is created by statute
and a special jurisdiction outside the course of the
8 A.I.R. 1935 Lahore 406
general law is prescribed, there is no ouster of the
jurisdiction of the ordinary Courts, for they never
had any (see Maxwell on the Interpretation of
Statutes, 7th Edition, p. 115). On the other hand,
the proposition is well established that where an
Act creates a special jurisdiction and provides a
special remedy such jurisdiction is exclusively
conferred upon the Court expressly empowered to
deal with the matter. My conclusion is that the
power to remove an executor and to provide for a
successor to his office is one conferred upon the
High Court alone by S. 301, Succession Act, and
that such relief cannot be sought by regular suit.”
(Emphasis supplied)
No doubt that, the learned Single Judge has referred to the judgment
in the case of Karam Devi (cited supra) but has held that
observations in the case of Karam Devi, leads directly to the
proposition that the application under Section 301 for removal of the
executor can only be maintained by one who accepts the Will. With
great respect, we are unable to find any observations in the
judgment of Division Bench of the Lahore High Court in the case of
Karam Devi, which would lead to the conclusion that the application
under Section 301 can be made only by a person who accepts the
Will.
21] We further find that finding of the learned Single Judge that
the person who challenges the Will, if allowed to make an application
under Section 301, would amount to permitting him to approbate
and reprobate, is also not correct. It will be relevant to refer to the
observations of the Hon'ble Apex Court in the case of Chiranjilal
Shrilal Goenka (cited supra), which read thus :
“15. In Ishwardeo Narain Singh vs. Smt Kamta Devi
[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.......”
It could thus be seen that the question that could be considered by
the probate court, is restricted only to find out 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 Caveator is entitled to contest the said
proceedings. However, the question would be, if during pendency of
these proceedings, the executor acts in dishonest and malafide
manner and misappropriates the property, whether the court would
be powerless under Section 301 to remove such an executor and
make an alternate arrangement. The learned Single Judge in the
case of Vasant Narayan Sardal (cited supra), has observed thus in
para 15 :
“15. Clearly the section speaks of an application for removal
being made to the High Court. But what does this mean exactly?
Can this ever mean that the hands of a Court of equity and a
Court of conscience are so utterly tied that the Court is reduced
to a helpless bystander as the executor of a Will that gives to
charity, and of which there is no beneficiary can seek removal of
the executor, plays ducks and drakes with the estate; deals with
it contrary to the terms of the Will that appointed him in the
first place; and is generally unaccountable for his actions?
Where there is such a Will, one that gives to public causes, I do
not believe that this Court's jurisdiction can ever be said to end
at being a silent spectator. Whenever a Court in the
performance of its duties sees wrong being done, it will step in.
For, the primary task of a Court is to prevent a wrong from
being done, and, if already done, to correct it. Not to allow
unlawfulness, illegality and injustice to run their polluted
course. To allow that is unthinkable. It is a betrayal and
abdication of any judge's oath of office and judicial duty. I do
not think there is anything in the ISA that says that a Court is to
be sidelined and become hapless, mute witness and nothing
more. After all when a Will is sought to be probated the result is
an order in rem. It is global in reach. This makes it all the more
incumbent on a Court to intervene and not sit idly by when
there is demonstrated illegality or unlawfulness writ on the face
of record. Therefore, in a situation like this – where there is no
named legatee who can seek removal of an errant executor – the
Court can and will step in as a guardian and custodian of the
interest that devolves in that Will.”
After observing this, the learned Single Judge had directed the said
Vasant Narayan Sardal to be removed as Trustee and further
appointed an officer of this Court in place and stead of the Plaintiffs
in Testamentary Suit and allowed him to convert the Suit to one for
Letters of Administration with Will annexed. No doubt that, the
aforesaid observations of the learned Single Judge could be in the
facts of the said case. However, in view of the aforesaid observations
made by the learned Single Judge in the case of Vasant Narayan
Sardal (cited supra), we are of the view that the following
observations made by the learned Single Judge in the present case,
holding that application under Section 301 at the instance of the
present applicant would not be maintainable, do not lay down the
correct proposition.
“10...............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.”
22] As already discussed hereinabove, proceedings under Section
301 are totally independent. A person who has contested the Will
but who is also interested in the estate of the deceased, if finds that
the executors are not acting in accordance with the Will or acting in
malafide or dishonest manner, can he be stopped from invoking
powers of this Court under Section 301? We find that, if, in the facts
of the present case, the Court finds that there is merit in the
application and the executors are required to be removed, the very
same course that has been adopted by the learned Single Judge in
the case of Vasant Narayan Sardal (cited supra), could have been
followed.
23] For the aforesaid reasons, we find that finding of the
learned Single Judge that application under Section 301 for removal
of executor can be made only by a beneficiary and legatee who
accepts the Will and cannot be made by a person who seeks to
dislodge the Will or contest the application for probate or Letters of
Administration with Will annexed, is not sustainable. Insofar as
other findings are concerned, the same are not challenged before us.
24] In the result, appeal is allowed. The order of learned
Single Judge holding that Misc. Petition was misconceived and was
not maintainable is quashed and set aside. It is held that the Misc.
Petition at the behest of the present Appellants under Section 301 is
maintainable. The matter is therefore remitted to the learned Single
Judge to decide the Misc. Petition on its own merits. We clarify that
we have not considered the merits of the matter and have decided
the appeal only on the ground of maintainability of the Misc. Petition
filed at the behest of the present Appellants.
25] Since the Appeal is allowed and disposed of, Notices of
Motion taken out therein do not survive and they are also disposed
of.
(RIYAZ I. CHAGLA J.) (B. R. GAVAI, J.)
Print Page
learned Single Judge that application under Section 301 for removal
of executor can be made only by a beneficiary and legatee who
accepts the Will and cannot be made by a person who seeks to
dislodge the Will or contest the application for probate or Letters of
Administration with Will annexed, is not sustainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.56 OF 2017
Smt. Radhika Bhargava V/s Dr. Arjun Sahagal,
CORAM:
B. R. GAVAI &
RIYAZ I. CHAGLA, JJ.
Judgment pronounced on 11th January, 2019.
Citation: AIR 2019 Bom 68
ORAL JUDGMENT: (Per B.R. Gavai, J.)
1] An important question, 'as to whether the application under
Section 301 of the Indian Succession Act, 1925 (hereinafter referred
to as “the Succession Act”) can be made only by a beneficiary or
legatee, who accepts the Will and, as to whether it cannot be made by
a person who seeks to dislodge the Will or contest the application for
probate or Letters of Administration with Will annexed', arises for
consideration in the present appeal.
2] The bare necessary facts for deciding the present appeal are as
under:3]
One Malati Srivastava (hereinafter referred to as “the
deceased”) expired on 31/08/2005, leaving behind her 9 nephews/
nieces being sons and daughters of her predeceased brothers/sisters
and her sisters in law (being the widows of her predeceased brothers)
as her only legal heirs. The deceased had left behind, as part of her
estate, various immovable properties as well as jewellery and shares
etc. One of the most valuable assets left behind by the deceased was
a Flat being Flat No. 303, Belmont, Napean Sea Road, Mumbai
alongwith Garage (Hereinafter referred to as “the Belmont Flat”)
4] Respondent Nos. 1 and 2 herein filed Probate Petition No. 223
of 2006 for propounding the Will dated 30/09/2001 of the deceased.
Under the said Will, Respondent Nos. 1 and 2 were appointed as
Executors and Trustees of the Estate of the deceased. Similarly, by
the said Will, the Belmont Flat has been bequeathed to Respondent
Nos. 1 and 2. The Will did not make any provision for remainder
estates of the deceased, which therefore, according to the Appellants,
devolved as of intestacy.
5] In the proceedings of the Probate Petition, Appellants and
Respondent No.5 lodged Caveats and filed Affidavits in support
thereof, for opposing the grant of Probate of the Will. As such, the
Probate Petition came to be converted into Testamentary Suit No. 9 of
2007. According to the Appellants, Respondent Nos. 1 and 2 were
not properly administering the estate of the deceased. In a nutshell, it
was their case that though certain details were sought from the said
Respondents, they were not responding. As such, the Appellants were
required to file Misc. Petition No.38 of 2011 under the provisions of
Section 301 of the Succession Act. Certain directions came to be
issued by the learned Single Judge in the said proceedings. However,
it appears that, a preliminary objection to the tenability of the said
proceedings under Section 301 came to be raised by Respondent Nos.
1 and 2, on the ground that the application under Section 301 can be
made only by a beneficiary or legatee who accepts the Will and it
cannot be made by a person who seeks to dislodge the Will or contest
the application for Probate or Letters of Administration with Will
annexed.
6] The learned Single Judge framed the following two questions in
para 9 of his Judgment, which read as under:“
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?”
7] After considering the rival submissions and various authorities
cited at the Bar, the learned Single Judge concluded in para 26 of his
Judgment as under:“
26. The following propositions may be culled
from the 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 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.”
After making the above observations, the learned Single Judge held
the Misc. Petition to be misconceived and not maintainable. Being
aggrieved thereby, the present appeal.
8] Ms. Iyer, the learned Senior Counsel appearing on behalf of the
Appellants, submits that the learned Single Judge has erred in holding
that the said Misc. Petition was miscellaneous proceedings in Probate
Petition, whereas, as a matter of fact, the said proceedings were
independent proceedings under Section 301 and not the
miscellaneous proceedings in Probate Petition. She submits that,
though, initially, inadvertently the said Misc. Petition came to be filed
as proceedings in Testamentary Suit No.9 of 2007 in Testamentary
Petition No.223 of 2006, the Appellants had specifically taken out
Chamber Summons No. 3 of 2012 for amendment to the Misc.
Petition for correcting the obvious error. She submits that the learned
Single Judge vide order dated 30/07/2013, after contest, had allowed
the Appellants to amend the Misc. Petition. She submits that,
accordingly, in view of the order passed in the said Chamber
Summons No. 3 of 2012, the cause title of Misc. Petition came to be
amended, thereby making it an independent proceedings. She
therefore submits that the learned Single Judge has erred in holding
that the Misc. Petition was a proceeding in Testamentary Petition.
9] She further submits that, finding of the learned Single Judge
that the application under Section 301 can be made only by a
beneficiary or legatee who accepts the Will and cannot be made by
any person who challenges the Will, is also not sustainable. She
submits that a bare reading of Section 301 would reveal that no such
restriction is provided under the statute. She submits that if the
finding, as recorded by the learned Single Judge, is to be accepted
then the same would amount to permitting judicial legislation. She
submits that when the language of statute is clear, the Court, by
judicial interpretation, cannot supply the words in the provision. She
relies in this respect on the judgment of Constitution Bench of the
Hon'ble Apex Court in the case of Union of India and another vs.
Hansoli Devi and others1
10] The learned Senior Counsel for the Appellants, further submits
that the finding of the leaned Single Judge that the Appellants cannot
be permitted to approbate and reprobate, is also not correct in law.
She submits that Equitable doctrine of election cannot be imported
into the proceedings under the Succession Act. She relies on the
following judgments in this regard:(
i) Sailabala Dasi Vs. Baidya Nath Rakshit & Anr2
(ii) Samir Chandra Vs. Bibhas Chandra Das3 (para 17)
(iii) Chiranjilal Goenka Vs. Jasjit Singh4 (paras 15 and 17)
She submits that the remedy, opposing the grant of probate, is
independent than the remedy which is provided under Section 301 of
the Succession Act. She submits that, if a person, who is entitled to
1 AIR 2002 SC 3240
2 Vol. XXXII Cal WN 729
3 2010 (5) Mh.L.J. 584
4 1993(2) SCC 507
some interest in the estate of the deceased, finds that the executor is
misadministering
the estate or acting in a dishonest and malafide
manner, then the only remedy to such a person is to file proceedings
under Section 301. She therefore submits that merely because such a
beneficiary has also opposed the grant of probate, cannot be a ground
to stop him from filing an application under Section 301.
11] The learned Senior Counsel further submits that the learned
Single Judge, subsequently, in Notice of Motion No.74 of 2015 in
Testamentary Suit No. 14 of 2004 in Testamentary Petition No.80 of
2004 (Vasant Narayan Sardal vs. Ashita Tham & Ors), vide order
dated 03/05/2018, has himself held that the Court was not
powerless under Section 301 and entitled to invoke the powers under
Section 301 suo motu for removal of the executor and appointed
Officer of this Court in place of the Plaintiff in Testamentary Suit and
allowed to convert the Suit to one for Letters of Administration with
Will annexed. The learned Senior Counsel submits that the same
course of action could have been followed by the learned Single
Judge, in the present matter also.
12] Mr. Andhyarujina, the learned Counsel appearing on behalf of
Respondent Nos. 1 and 2, submits that clause (c) of Section 2 read
with Section 222, would reveal that the executor is a person who has
been appointed under the Will for execution of the Will and the
probate can be granted only to the executor appointed by the Will.
The learned Counsel submits that right to executorship flows through
the Will and therefore if the executor appointed under the Will is to
be removed, such can be done only by a person who has accepted the
Will. He submits that the learned Single Judge has therefore rightly
considered the issue. He submits that the learned Single Judge of
this Court in the case of In re : Rustam Ardeshir Garat, Petitioner5 has
held that a person not named as executor, cannot be appointed to
assist the executor. Mr. Andhyarujina further submitted that the
appropriate remedy for the Appellants would be to move the Court
under section 247 of the said Act for appointment of Administrator
pendente lite administration suit which is already filed by the
appellants.
5 AIR 1990 Bombay 111
13] For appreciating the rival submissions, we will have to refer to
the provisions of Section 301, which read 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.”
Perusal of Section 301 would reveal that the High Court may, on
application made to it, suspend, remove or discharge any private
executor or administrator. It also provides, that the High Court shall
also provide for the succession of another person to the office of any
such executor or administrator who may cease to hold the Office and
vest in such successor any property belonging to the estate. It could
thus be seen that the plain reading of Section 301 does not put any
restriction with regard to the person or class of persons who are
eligible or ineligible to make an application before the Court.
14] It is now more than well settled position of law that the words
of a statute must be understood in their natural, ordinary or popular
sense and construed according to their grammatical meaning unless
such construction leads to some absurdity or unless there is
something in the context or in the object of the statute to the
contrary. It is also equally well settled that when the words of the
statute are clear, plain and unambiguous, then the courts are bound
to give effect to that meaning irrespective of the consequences. It will
be relevant to refer to the following observations of their Lordships of
the Apex Court in the case of Union of India through Director of
Income Tax vs Tata Chemicals Limited6.
“22. It is cardinal principle of interpretation of statutes
that the words of a statute must be understood in their
natural, ordinary or popular sense and constructed
according to their grammatical meaning unless such
construction leads to some absurdity or unless there is
something in the context or in the object of the statute to
the contrary. The golden rule is that the words of a statute
must prima facie be given their ordinary meaning. It is yet
another rule of construction that when the words of a
statute are clear, plain and unambiguous, then the courts
6 (2014) 6 SCC 335
are bound to give effect to that meaning irrespective of the
consequences. It is said that the words themselves best
declare the intention of the law giver. The courts have
adhered to the principle that efforts should be made to give
meaning to each and every words used by the legislature
and it is not a sound principle of construction to brush aside
words in a statute as being inapposite surpluses, if they can
have proper application in circumstances conceivable
within the contemplation of the statute. (See
Gurudevadatta VKSS Maryadit vs. State of Maharashtra
[(2001) 4 SCC 534]).”
15] It will be relevant to refer to the following observations of the
Constitution Bench in the case of Union of India and another vs.
Hansoli Devi and others (cited supra), which read thus:“
It is a cardinal principle of construction of statute that
when language of the statute is plain and unambiguous,
then the Court must give effect to the words used in the
statute and it would not be open to the Courts to adopt
a hypothetical construction on the ground that such
construction is more consistent with the alleged object
and policy of the Act. It is no doubt true that if on going
through the plain meaning of the language of statute, it
leads to the anomalies, injustices and absurdities, then
the Court may look into the purpose for which the
statute has been brought and would try to give a
meaning which would adhere to the purpose of the
statute.”(Para 4).
It could thus be seen that it is the cardinal principle of construction
of statute that when language of the statute is plain and
unambiguous, the Court is required to give effect to the words used
in the statute and it will not be open to the Court to adopt
hypothetical construction on the ground that such construction is
more consistent with the alleged object and policy of the Act. Only
if, on going through the plain meaning of the language of the statute,
it is found that it leads to anomalies, injustices and absurdities, the
Court may look in to the purpose for which the statute has been
brought and would try to give meaning, which would adhere to the
purpose of the statute.
16] It is also equally well settled that casus omissus is not to
be readily inferred. It will be relevant to refer to recent judgment of
their Lordships of the Hon'ble Apex Court in the case of Singareni
Collieries Company Limited vs. Vemuganti Ramakrishan Rao and
Others7 wherein their Lordships have discussed the earlier judgments
on casus omissus. In the said judgment, their Lordships have
observed thus:“
21. The legal position prevalent in this country is not much different
from the law as stated in England. This Court has in several decisions
held that casus omissus cannot be supplied except in the case of clear
necessity and when reason for it is found within the four corners of the
statute itself. The doctrine was first discussed by V.D. Tulzapurkar, J. in
CIT v. National Taj Traders [(1980) 1 SCC 370 : 1980 SCC (Tax) 124].
Interpretative assistance was taken by this Court from Maxwell on
Interpretation of Statutes (12th Edn.), pp. 33 and 47. The Court said:
(SCC pp. 37576,
para 10)
“10. Two principles of construction—one relating to casus omissus and
the other in regard to reading the statute as a whole—appear to be well
settled. In regard to the former the following statement of law appears in
Maxwell on Interpretation of Statutes (12th Edn.) at p. 33:
Omissions not to be inferred.—It is a corollary to the general rule of
literal construction that nothing is to be added to or taken from a
statute unless there are adequate grounds to justify the inference that
the legislature intended something which it omitted to express. Lord
Morsey said: ‘It is a strong thing to read into an Act of Parliament
words which are not there, and in the absence of clear necessity it is a
wrong thing to do’. ‘We are not entitled’, said Lord Loreburn L.C., ‘to
read words into an Act of Parliament unless clear reason for it is to be
found within the four corners of the Act itself.’ A case not provided for
in a statute is not to be dealt with merely because there seems no good
7 (2013) 8 SCC 789
reason why it should have been omitted, and the omission in
consequence to have been unintentional.
In regard to the latter principle the following statement of law appears in
Maxwell at p. 47:
A statute is to be read as a whole.—It was resolved in Lincoln College
case [(1595) 3 Co Rep 58 b : 76 ER 764] that the good expositor of an
Act of Parliament should ‘make construction on all the parts together,
and not of one part only by itself.’ Every clause of a statute is to ‘be
construed with reference to the context and other clauses of the Act, so
as, as far as possible, to make a consistent enactment of the whole
statute’. (Per Lord Davey in Canada Sugar Refining Co. Ltd. v. R. [1898
AC 735 (PC)] )
In other words, under the first principle a casus omissus cannot be
supplied by the court except in the case of clear necessity and when
reason for it is found in the four corners of the statute itself but at the
same time a casus omissus should not be readily inferred and for that
purpose all the parts of a statute or section must be construed together
and every clause of a section should be construed with reference to the
context and other clauses thereof so that the construction to be put on a
particular provision makes a consistent enactment of the whole statute.
This would be more so if literal construction of a particular clause leads
to manifestly absurd or anomalous results which could not have been
intended by the legislature. ‘An intention to produce an unreasonable
result’, said Danckwerts, L.J., in Artemiou v. Procopiou [(1966) 1 QB
878 : (1965) 3 WLR 1011 : (1965) 3 All ER 539 (CA)] ‘is not to be
imputed to a statute if there is some other construction available.’ Where
to apply words literally would ‘defeat the obvious intention of the
legislation and produce a wholly unreasonable result’ we must ‘do some
violence to the words’ and so achieve that obvious intention and produce
a rational construction. [Per Lord Reid in Luke v. IRC[1963 AC 557 :
(1963) 2 WLR 559 : (1963) 1 All ER 655 (HL)] where at AC p. 577 (All
ER p. 664I) he also observed: ‘This is not a new problem, though our
standard of drafting is such that it rarely emerges’.] In the light of these
principles we will have to construe subsection
(2)(b) with reference to
the context and other clauses of Section 33B.”
22. Arijit Pasayat, J. has verbatim relied upon the above in Padma
Sundara Raov. State of T.N. [(2002) 3 SCC 533] ,Union of India v.
Dharamendra Textile Processors [(2008) 13 SCC 369] ,Nagar Palika Nigam v.
Krishi Upaj Mandi Samiti[(2008) 12 SCC 364] ,Sangeeta Singh v. Union of
India [(2005) 7 SCC 484], State of Kerala v. P.V. Neelakandan Nair [(2005)
5 SCC 561 : 2005 SCC (L&S) 698] , Union of India v. Priyankan Sharan
[(2008) 9 SCC 15] , Maulavi Hussein Haji Abraham Umarjiv. State of Gujarat
[(2004) 6 SCC 672 : 2004 SCC (Cri) 1815 : 2004 Cri LJ 3860] ,Unique
Butyle Tube Industries (P) Ltd. v. U.P. Financial Corpn.[(2003) 2 SCC
455] ,Union of India v. Rajiv Kumar [(2003) 6 SCC 516 : 2003 SCC (L&S)
928] , Shiv Shakti Coop. Housing Society v. Swaraj Developers [(2003) 6 SCC
659] , Prakash Nath Khanna v. CIT [(2004) 9 SCC 686], State of Jharkhand
v. Govind Singh [(2005) 10 SCC 437 : 2005 SCC (Cri) 1570] and Trutuf
Safety Glass Industries v. CST [(2007) 7 SCC 242] .
23. In Padma Sundara Rao [(2002) 3 SCC 533] this Court examined
whether the doctrine of casus omissus could be invoked while interpreting
Section 6(1) of the Land Acquisition Act so as to provide for exclusion of
time taken for service of copy of the order upon the Collector. Repelling the
contention this Court said: (SCC p. 542, paras 12 & 14)
“12..… the court cannot read anything into a statutory provision
which is plain and unambiguous. A statute is an edict of the legislature.
The language employed in a statute is the determinative factor of
legislative intent. The first and primary rule of construction is that the
intention of the legislation must be found in the words used by the
legislature itself. The question is not what may be supposed and has been
intended but what has been said.
***
14. While interpreting a provision the court only interprets the law
and cannot legislate it. If a provision of law is misused and subjected to
the abuse of process of law, it is for the legislature to amend, modify or
repeal it, if deemed necessary.”
24. There is in the case at hand no ambiguity nor do we see any
apparent omission in Section 11A
to justify application of the doctrine of
casus omissus and by that route rewrite Section 11A
providing for
exclusion of time taken for obtaining a copy of the order which exclusion is
not currently provided by the said provision. The omission of a provision
under Section 11A
analogous to the proviso under Section 28A
is
obviously not unintended or inadvertent which is the very essence of the
doctrine of casus omissus. We, therefore, have no hesitation in rejecting
the contention urged by Mr Altaf Ahmad.”
17] It is equally well settled that for the purpose of providing casus
omissus, all the parts of a statute or section must be construed
together and every clause of a section should be construed with a
reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a consistent
enactment of the whole statute. The reasons for the same are
required to be found in the four corners of the statue itself and it can
be done only in the case of clear necessity. It could thus be seen that
it is more than well settled that the first principle of interpretation is
that of plain and literal interpretation. Only when the provision is
found to be ambiguous, it will be permissible for the Court to take
recourse to the other principles of interpretation.
18] As discussed hereinabove, perusal of Section 301 would reveal
that the said provision cannot be said to be ambiguous or one,
leading to anomalies, injustices and absurdities. It will be relevant to
note that Section 301 falls in Part IX of the Succession Act, which
deals with Probate, Letters of Administration and Administration of
Assets of Deceased. Perusal of Section 234 of the Succession Act
shows that it deals with grant of administration where no executor,
nor residuary legatee nor representative of the said legatee is
available. It provides that in such cases, Letters of Administration
could be granted to various persons including creditor. Section 301
also comes under the same part. Neither the learned Counsel for
Respondent Nos. 1 and 2 have been in a position to point out nor
could we notice any provision under the Succession Act, which could
show that the legislative intent was to restrict the class of applicants
only to the persons who are legatees or beneficiaries of the Will who
accepted the Will, nor could we find out any provision which would
show that the legislative intent was to debar a person, who has
challenged the probate, from making an application under Section
301.
19] We further find that the learned Single Judge has also erred in
considering the Misc. Petition under Section 301 to be proceeding
filed in Testamentary Petition. Firstly, it appears that the learned
Single Judge has not noticed that though, inadvertently, the said
Misc. Petition came to be filed as Misc. Petition in Testamentary Suit
and Petition, the learned Single Judge of this Court vide order dated
30/07/2013 in chamber Summons No. 3 of 2012 had allowed the
Chamber Summons No.3 of 2012 for amending the Misc. Petition. It
will be relevant to refer to the observations of the learned Single
Judge while allowing the Chamber Summons, which read thus:“
6............From perusal of prayers in the Misc.
Petition, it is clear that all the prayers which are
sought to be pressed by the petitioner, pertains to
removal of the executors and nothing else. I am
thus inclined to accept the submission of the
learned senior counsel for the petitioner that the
Misc. Petition has been wrongly described as a
petition in testamentary suit which error is an
inadvertent error and can be permitted to be
corrected by granting this Chamber Summons.
No prejudice would be caused to the respondent
if the said amendment is allowed. Petitioner has
already paid requisite court fees payable on the
said Misc. petition. Chamber Summons is
accordingly made absolute in terms of prayer
clauses (a) and (b)...........”
In pursuance to the said Order passed by the learned Single Judge,
the necessary amendment were carried out on 06/08/2013. It is thus
amply clear that Misc. Petition No.38 of 2011 was not a proceeding in
the said Suit and Petition but was an independent proceeding.
20] It will be further relevant to refer to the observations of the
Division Bench of the Lahore High Court in the case of Karam Devi vs.
Radha Kishan and others8, which read thus:“
When a new cause of action is created by statute
and a special jurisdiction outside the course of the
8 A.I.R. 1935 Lahore 406
general law is prescribed, there is no ouster of the
jurisdiction of the ordinary Courts, for they never
had any (see Maxwell on the Interpretation of
Statutes, 7th Edition, p. 115). On the other hand,
the proposition is well established that where an
Act creates a special jurisdiction and provides a
special remedy such jurisdiction is exclusively
conferred upon the Court expressly empowered to
deal with the matter. My conclusion is that the
power to remove an executor and to provide for a
successor to his office is one conferred upon the
High Court alone by S. 301, Succession Act, and
that such relief cannot be sought by regular suit.”
(Emphasis supplied)
No doubt that, the learned Single Judge has referred to the judgment
in the case of Karam Devi (cited supra) but has held that
observations in the case of Karam Devi, leads directly to the
proposition that the application under Section 301 for removal of the
executor can only be maintained by one who accepts the Will. With
great respect, we are unable to find any observations in the
judgment of Division Bench of the Lahore High Court in the case of
Karam Devi, which would lead to the conclusion that the application
under Section 301 can be made only by a person who accepts the
Will.
21] We further find that finding of the learned Single Judge that
the person who challenges the Will, if allowed to make an application
under Section 301, would amount to permitting him to approbate
and reprobate, is also not correct. It will be relevant to refer to the
observations of the Hon'ble Apex Court in the case of Chiranjilal
Shrilal Goenka (cited supra), which read thus :
“15. In Ishwardeo Narain Singh vs. Smt Kamta Devi
[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.......”
It could thus be seen that the question that could be considered by
the probate court, is restricted only to find out 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 Caveator is entitled to contest the said
proceedings. However, the question would be, if during pendency of
these proceedings, the executor acts in dishonest and malafide
manner and misappropriates the property, whether the court would
be powerless under Section 301 to remove such an executor and
make an alternate arrangement. The learned Single Judge in the
case of Vasant Narayan Sardal (cited supra), has observed thus in
para 15 :
“15. Clearly the section speaks of an application for removal
being made to the High Court. But what does this mean exactly?
Can this ever mean that the hands of a Court of equity and a
Court of conscience are so utterly tied that the Court is reduced
to a helpless bystander as the executor of a Will that gives to
charity, and of which there is no beneficiary can seek removal of
the executor, plays ducks and drakes with the estate; deals with
it contrary to the terms of the Will that appointed him in the
first place; and is generally unaccountable for his actions?
Where there is such a Will, one that gives to public causes, I do
not believe that this Court's jurisdiction can ever be said to end
at being a silent spectator. Whenever a Court in the
performance of its duties sees wrong being done, it will step in.
For, the primary task of a Court is to prevent a wrong from
being done, and, if already done, to correct it. Not to allow
unlawfulness, illegality and injustice to run their polluted
course. To allow that is unthinkable. It is a betrayal and
abdication of any judge's oath of office and judicial duty. I do
not think there is anything in the ISA that says that a Court is to
be sidelined and become hapless, mute witness and nothing
more. After all when a Will is sought to be probated the result is
an order in rem. It is global in reach. This makes it all the more
incumbent on a Court to intervene and not sit idly by when
there is demonstrated illegality or unlawfulness writ on the face
of record. Therefore, in a situation like this – where there is no
named legatee who can seek removal of an errant executor – the
Court can and will step in as a guardian and custodian of the
interest that devolves in that Will.”
After observing this, the learned Single Judge had directed the said
Vasant Narayan Sardal to be removed as Trustee and further
appointed an officer of this Court in place and stead of the Plaintiffs
in Testamentary Suit and allowed him to convert the Suit to one for
Letters of Administration with Will annexed. No doubt that, the
aforesaid observations of the learned Single Judge could be in the
facts of the said case. However, in view of the aforesaid observations
made by the learned Single Judge in the case of Vasant Narayan
Sardal (cited supra), we are of the view that the following
observations made by the learned Single Judge in the present case,
holding that application under Section 301 at the instance of the
present applicant would not be maintainable, do not lay down the
correct proposition.
“10...............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.”
22] As already discussed hereinabove, proceedings under Section
301 are totally independent. A person who has contested the Will
but who is also interested in the estate of the deceased, if finds that
the executors are not acting in accordance with the Will or acting in
malafide or dishonest manner, can he be stopped from invoking
powers of this Court under Section 301? We find that, if, in the facts
of the present case, the Court finds that there is merit in the
application and the executors are required to be removed, the very
same course that has been adopted by the learned Single Judge in
the case of Vasant Narayan Sardal (cited supra), could have been
followed.
23] For the aforesaid reasons, we find that finding of the
learned Single Judge that application under Section 301 for removal
of executor can be made only by a beneficiary and legatee who
accepts the Will and cannot be made by a person who seeks to
dislodge the Will or contest the application for probate or Letters of
Administration with Will annexed, is not sustainable. Insofar as
other findings are concerned, the same are not challenged before us.
24] In the result, appeal is allowed. The order of learned
Single Judge holding that Misc. Petition was misconceived and was
not maintainable is quashed and set aside. It is held that the Misc.
Petition at the behest of the present Appellants under Section 301 is
maintainable. The matter is therefore remitted to the learned Single
Judge to decide the Misc. Petition on its own merits. We clarify that
we have not considered the merits of the matter and have decided
the appeal only on the ground of maintainability of the Misc. Petition
filed at the behest of the present Appellants.
25] Since the Appeal is allowed and disposed of, Notices of
Motion taken out therein do not survive and they are also disposed
of.
(RIYAZ I. CHAGLA J.) (B. R. GAVAI, J.)
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