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16. None of the nine authorities cited by Ms. Iyer deal even remotely with a situation where a party opposed the grant of probate and simultaneously sought removal of the executor. The reliance on Karam Devi v. Radha Kishan, AIR 1935 Lah 406 is wholly misplaced. The question there was whether a civil suit for removal of an executor would lie, or whether there was an „ouster‟ of a civil court's jurisdiction. Indeed, there are observations here that seem to me to militate NEUTRAL CITATION NO:2022/DHC/005814 against acceptance of what Ms. Iyer commends. For instance, the Karam Devi court clearly said that the right to act as an executor of a Will can be created only by the Will itself. This is perfectly correct, and it leads us directly to the proposition that an application under section 301 for removal of the executor can only be maintained by one who accepts the Will but not the continued executorship of it of the present incumbent."

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.

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."

39. It is important to observe that these Sections do not highlight any guidelines for the removal of any private executor or administrator. While exercising power under Section 301 of the Indian Succession Act, the Court must ensure that no malicious or misconceived grounds are raised to throttle the intentions of the testator by way of an application to remove the Testator. If the Court is of the opinion that the Executor has NEUTRAL CITATION NO:2022/DHC/005814 acted or is acting improperly qua the Estate; or is acting in contravention to the intention of the Testator then, it shall be justified in exercising its jurisdiction under Section 301 of the Act in removing the executor and succeeding him by another. The main test which must guide the Court in reaching this conclusion is the best interests of the beneficiary. Even want of honesty or want of proper capacity to exercise duties or want of reasonable fidelity could justify an order under this section directing removal of the executor.