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21. This propels me to the moot question of exercise of the power under Section 301 of the Indian Succession Act, 1925. It may be appropriate to appreciate the core controversy in the light of the statutory prescription. Section 301 of the Act, 1925 reads as under :

"Sec. 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.

22. Evidently, the power to remove a named Executor is discretionary in nature. Normally, where the Executor is named by the testator, the Court would be loath to remove him and appoint an Administrator pendente lite, or post grant of Probate, unless there is gross misconduct or mismanagement or waste of assets on the part of the Executor. The reason is not far to seek. In the very appointment of the Executor by the testator is the implicit confidence that the testator has reposed in the Executor. Strong grounds are, therefore, required to remove the named Executor and appoint an Administrator pendente lite. In the very nature of the things, the question of mpt 150 of 2023.doc removal of an Executor is rooted in thicket of facts. Where, in the facts of the given case, the Court upon consideration of all the relevant circumstances comes to the conclusion that the continuation of the Executor, named by the testator, is detrimental to either the estate of the testator, or the beneficiaries under the Will, on account of gross misconduct, mismanagement or usurpation of the estate by the Executor or gross mis-application of the estate, the Court may be justified in removing an Executor. It is trite that a Testamentary Court is a Court of conscience.

26. A reference can also been made to the decision of the Madhya Pradesh High Court in the case of Dr Kusum Kuree V/s. Dharam Singh. 11. After extracting the text of Section 301 of the Indian Succession Act, the Madhya Pradesh High Court spelt out the circumstances in which the power to remove an Executor can be resorted to, as under :

10 2020 AIR (P&H) 30 11 1986 ILR 414 (MP Series) mpt 150 of 2023.doc "It is pertinent to note that in the text of this section no specific grounds have been included enumerated for removal of any private executor or administrator. The executor so named in the Will, therefore, should be removed only when proper case in that behalf is made out for last wishes of the deceased as expressed in his Will nominating a person and an executor should be highly respected. While exercising power under section 301 of the Indian Succession Act, the Court must guard itself against any frivolous attempts for collateral purposes to remove the executor. If the Court finds that the person making an application has not come out with a clear title or has not come with clean hands, the application should be refused. However, if the Court finds on proper enquiry that the executor is acting contrary to the interest of the beneficiary, is not honestly and sincerely carrying out wishes of the deceased has started claiming title in the property adverse to the deceased or the legacy is withering away the property to the detriment of the interest of the legatee, it shall be justified in exercising its jurisdiction under this provision in removing the executor and succeeding him by another. In such cases main guide must be the welfare of the beneficiary. Want of honesty or want of proper capacity to exercise duties or want of reasonable fidelity may well justify an order under this section directing removal of the executor." (emphasis supplied)

29. In the case of Swapnil Gupta (supra), on which Respondent placed reliance, the following statement of law as regards the exercise of power to remove the executor was made :

mpt 150 of 2023.doc "35. It is trite law that the testator's wish regarding as to who will be the executor of his estate and carry out his Will must typically be respected, and an executor named by the testator should not be removed from his office unless, there is convincing proof that his continued appointment would be harmful to the estates of the deceased and frustrate the testator's Will. The named executor cannot be removed for a few isolated minor mistakes. This concept must be considered when determining whether the petitioners have provided enough evidence to have the executor removed from his/her role.