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App-56-17.doc

(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."

5 AIR 1990 Bombay 111 App-56-17.doc 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."

"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 App-56-17.doc 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."

"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 App-56-17.doc 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."