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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.