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(h) On 22nd February 2011, petitioners filed a criminal complaint against respondent Nos.1 and 2 and further complaint dated 8 th April 2011 to the Commissioner of Police. On 1st August 2011, petitioners filed additional statement with Senior Inspector of Police to supplement the criminal complaint dated 22nd February 2011. On 4th August 2011, respondent No.1 as the Executor of the said Will & Codicil made an application in the said testamentary petition (733/11) for amendment of the probate granted by this Court and also to amend the schedule of assets with regard to immovable property without any notice to the petitioners or other beneficiaries under the said Will and Codicil. In the said application, Additional Prothonotary & Senior Master raised an objection and called upon respondent No.1 to submit consent affidavit of the beneficiaries. It is the case of the petitioners that the said objection was thereafter dispensed with and the said application for amendment came to be allowed by the Addl. Prothonotary & Senior Master allowing amendment not only to the probate but also to the schedule of assets filed along with probate petition. Respondent Nos.1 to 4 by their letter dated 9 th August 2011 forwarded to the petitioners a copy of the amended probate of the will and Codicil of the said deceased. The petitioners have filed Misc. Petition (54/12) inter alia .. 7 .. MPT-66/13 praying for setting aside the order passed by Addl. Prothonotary & Senior Master allowing amendment of the probate and schedule of assets to the petition. The said petition (54/12) was heard simultaneously and is being disposed of by a separate order. On 17 th April 2012, the petitioners filed a suit (1437/12) in this Court against respondent Nos.1, 2 and 5 and their front companies for handing over peaceful and vacant possession of the first floor of the building known as Mercantile House and for other consequential reliefs.

It is submitted that other legatees under the Will and Codicil have not come forward before the Court for removal of respondent Nos.1 and 2 as Executors and trustees. Mr Chinai submits that wife of petitioner No.1 and 2 and grand children of the deceased are the major beneficiaries under the Will and Codicil of the said deceased. It is submitted that the said Will and Codicil of the said deceased has been drafted by a seasoned lawyer as is apparent from the polished language used for drafting the said Will and Codicil. It is submitted that these .. 19 .. MPT-66/13 daughters-in-law of the deceased were appointed as trustees for benefit of children of the petitioners. Deceased had faith in these daughters-in-law and not in the petitioners. Mr Chinai submits that respondent Nos.1 & 2 along with other Executors have already handed over the entitlement of the petitioners as legatee under the said Will and Codicil by placing on record by addressing two letters and report. It is submitted that though the same was placed on record on 25th January 2008 and 3rd March 2008 by the executors, no objection has been raised by the petitioners that respondent Nos.1 and 2 or other Executors have not complied with their duties and have not carried out the directions of the testator under the said Will and Codicil. Learned senior counsel submits that the deceased testator was not entitled to the entire building known as Mercantile House. If that entire property was to be conferred in favour of the petitioners, the same could be done only by registered conveyance. In this case, it was however, not necessary to execute any conveyance as neither such entire property belonged to the deceased nor bequeathed in favour of the petitioners.

Petitioners have filed separate petition being Misc. Petition No. 54 of 2012 impugning the said order passed by the Prothonotary and Senior Master allowing the amendment of the probate as well as schedule to the probate petition. By a separate order passed by this court, said petition has been disposed of.

34. The main grievance raised by the petitioners in this case for removal of respondent nos. 1 and 2 as executors and trustees of the Will and Codicil of the said deceased is on the ground that the respondent nos. 1 and 2 have not complied with their duties and obligations required to be performed under the said will and codicil of the said deceased and also under the provisions of the .. 42 .. MPT-66/13 Indian Succession Act, 1925. Learned counsel for the petitioner has strongly canvassed the issue that the executors who are appointed for the benefits of the legatees and beneficiaries cannot claim any interest contrary to the interest of beneficiaries. It is submitted that instead of complying with their duties and obligations under the said Will and codicil and under the provisions of the Succession Act, by complying with the directions of the said deceased in distributing the estate of the said deceased, the executors have illegally claimed rights in the said properties forming part of the estate i.e. building Mercantile House. It is submitted that the executor or trustee cannot act contrary to the interest of the benefits and estate of the said deceased. It is submitted that to avoid any criminal action arising out of the criminal complaint filed by the petitioners, respondent nos. 1 and 2 had mischievously and fraudulently filed an application for amendment before the Prothonotary & Senior Master and had obtained an exparte orders with malafide intention.

2. This action on the part of the respondent No. 1 and supported by respondent no.2 clearly indicates their rival claim in the property stated to be that of the deceased which claims are made after obtaining probate of the said Will of the said deceased.

38. The questions that arise for consideration of this court are that in these circumstances, where the executors have set up their rival claims in respect of the properties which were disclosed as ownership properties of the said deceased by the executors who were parties to the probate petition and having obtained exparte orders after filing of the criminal complaint against the beneficiaries whether can be allowed to continue to act as executors and trustees of the said will and the codicil of the said deceased. In my view, the executors have to act in the interest, benefit and welfare of the beneficiaries/legattes under the will and codicil and cannot be permitted to have his conflicting interest in the estate. Since no part of the estate was bequeathed in favour of .. 46 .. MPT-66/13 the executors by the said deceased, the executors have to comply with their duties and to distribute the legacies amongst the beneficiaries/legatees under the said will and codicil and cannot be permitted to set up title adverse to the title of the said deceased while carrying out his duties as executors and trustees.