Document Fragment View
Fragment Information
Showing contexts for: removal of executor in Smt. Shanti Devi vs Yadvinder Thakur And Anr. on 11 May, 2006Matching Fragments
CM. No. 2565-CII of 1993
15. Before proceeding further the provisions of Section 301 of the Act, 1925 may be noticed, under which the present application has been filed. This Section reads as under:
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.
In the present case the clear question is for the removal of an executor.
There is no dispute that the power to remove the Executor and to appoint a successor in his place is vested in this Court under Section 301 of the Act, 1925. The question of removal of trustee inevitably comes in as the work of trustee has also to go side by side. For better management of the estate, the same person is to work as Executor and as Managing Trustee at the same time. Similarly, the other trustees are to cooperate with the Managing Trustee for the same goal. It may be stated at the cost of repetition that if the question would have been for the removal of the trustees alone, then this Court had no jurisdiction to remove the trustees and the suit was maintainable. In the present case, it is a mixed question of Executor and of trustees. 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.
Reference was also made by the learned Counsel for the respondent to the judgment reported as Patel Vrajlal Bhagwandas v. Patel Jamnadas Tribhovandas and Ors. A.I.R. 1956 Surashtra 51. In this case also, it was held that trustees can be removed under Sections 73 and 74 of the Trusts Act. In the reported judgment, it was not a mixed question of removal or Executor and removal of Trustees. Rather neither the Executor was appointed nor there was any work for the Executor to do. It is clear from the following passage in this judgment:
In view of the discussion held above, respondent No. 1 is removed from the office Executor, he is also removed from the office of Executive Trustee or the Managing trustee or the Administrative Trustee, by whatever name, he may be called. Similarly, respondent No. 2 Om Parkash Aggarwal, is also removed from the office of trustee of CC Trust.
Removal of the Executor was only one part of the proceedings, under Section 301 of the Act, 1925. His successor has also to be appointed. A deep thought was given as a person of rare talents is required to be appointed as Executor, who could translate the dreams of Seth. Bhagirath Das as laid down by him in the Will dated 21.1.1985, codicil dated 28.12.1988 and the trust deed dated 18.1.1966 into reality. Not only that, the person so appointed is required to be in Chandigarh, so that he may be able to devote more time, he may dedicate himself for putting the schemes into action. The choice of this Court fell on Hon'ble Mr. Justice G.C.Garg (retired), who in the opinion of this Court can respond appropriately to the sentiments of Seth Bhagirath Das as depicted in the aforesaid documents. He is therefore, appointed as the Executor under the Will. The duties of the Executor in the present case are multifarious. These have been narrated by the Hon'ble Division Bench in the Goods of Sarnath Sanyal's case (supra), as under: