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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.

9. Mr Andhyarujina then placed reliance on a Judgment of Punjab and Haryana High Court in case of Tarachand Sharma V/s Uma Agarwal delivered on 14th October 2009 in L.P.A. No.112 of 2006 (2010 AIR (P & H) 30) and particularly para 29 which reads thus :

29.Question which survives is whether jurisdiction under Section 301 ought to have been exercised. No doubt any person coming to Court has to come with clean hands and his conduct has to be above board. At the same time, while dealing with an application alleging misconduct of an Executor, the Court cannot shut eyes to conduct of Executor and allow an executor to continue, irrespective of his working to the detriment of the property bequeathed merely because complainants conduct was not above board. The Court has to take an overall view of the matter. We are in .. 16 .. MPT-66/13 agreement with the view taken by the learned Single Judge that when the Will specifically mentions that the testator was not survived by any issue and that he owned properties including one described as Bagichi, Bagh Rama Nand, Amritsar, the very fact of pleading directly or indirectly factum of adoption of a son by the testator will not be conduct which will be above board. Similarly, even after death of widow of late Seth Bhagirath Das, there is nothing to show that the property was put to use for purposes indicated in the Will. Thus, conduct of an Executor was not above board and he rendered himself liable to be removed. We are also in agreement with the learned Single Judge that appointment of other trustees to which the Executor was a party, has to be annulled. Conduct of Om Parkash Aggarwal in setting up tenancy and continuing in possession of the trust for his personal benefit and there being hardly tangible account of use of the property for the last 20 years, sufficient grounds are made out for exercise of power under Section 301. Contention of Shri Verma that application under Section 301 of the Succession Act was moved only to avoid handing over of possession, can also not be accepted. The possession stands handed over and unless finding of learned Single Judge about the misconduct of the appellants can be set aside, there is no ground to reject the application. Conduct of the appellants cannot be held to be good merely because conduct of the applicant was not above board. The real issue is whether the Will of the testator was being given effect to and whether the executor instead of discharging his duty as per Will was abusing his position to divert the property of the testator for his personal benefit. The finding of learned Single Judge that as against clear statement in the Will that the testator had no issue, plea of testator having adopted a son was raised apart from plea of partition which affected the title of the testator to the bequeathed property and the fact that one of the trustees was allowed to plead his own tenancy on the property bequeathed for the benefit of the public have not been shown, in any manner, to be erroneous, which by itself were sufficient grounds justifying removal of an executor, acting in dual capacity as executor and the trustee. Continuance of substituted trustees is inter-connected to finding of conduct of executor and chief trustee. The removal of Executor was clearly called for under Section 301 and removal of other appellants was consequential being inter-connected to the functioning of the Executor. There is, thus, no ground to interfere with the finding recorded by the learned Single Judge. The question is answered against the appellants and in favour of the respondents.

This Court has the exclusive jurisdiction for removal of the Executor. The question of the removal of Executor is inseparably interwoven with the removal of the trustees. Rather it is intermingled matter which relates to both Executor and the trustees. It appears difficult to remove an Executor and to ask the party to go to District Court for getting the trustees removed particularly, when this Court has reached the conclusion that the trustees are misusing the CC Trust property. The Managing trustee is disputing the rights of the properties, which have been vested in the trust by the founder Trustee by executing a Will dated 21.1.1985, while the other trustee is occupying the same by alleging that the said properties are not owned by the trust and rather it was owned by somebody else.

21. Mr Kamdar, learned senior counsel appearing on behalf of other two Executors who are impleaded as respondent No.3 and 4 submits that for removal of occupants and to hand over possession of the immovable properties to the petitioners, process of law would have to be followed and no such order can be passed in this proceedings which are in the nature of summary proceedings. Mr Kamdar submits that Executors have already handed over possession of Mercantile House to the Executors on 'as is where is' basis. This Court will have to decide whether executors have still to comply with any other obligation as executors. It is submitted that Executors cannot remove the occupants. It is submitted that respondent Nos.3 and 4 have no objection to .. 29 .. MPT-66/13 continue to act as Executors if this Court so directs but no order for removal of occupants can be granted by this Court in this proceedings.