1948 (5) TMI 9 - HC - Indian Laws

Summary

Issues Involved:

1. Whether the application lies under S. 301, Succession Act.
2. Whether opposite party No. 1 failed to comply with the provisions of para. 6 of the will.
3. Whether opposite party No. 1 failed to comply with the second provision of para. 8 of the will.
4. Whether the transfer by opposite party No. 1 to his wife of house No. D. 38/24, Hauz Katora, Banaras city, is contrary to para. 10 of the will.
5. Whether the application is maintainable in view of the decree of the Court dated 20th April 1942.

Detailed Analysis:

Issue 1: Whether the application lies under S. 301, Succession Act

The contention of opposite party 1 is that the application under S. 301, Succession Act, does not lie on two grounds: (1) the applicant has no subsisting right under the will, and (2) the so-called executor is not an executor but a trustee and cannot be removed under S. 301, Succession Act. The court found that under para. 10 of the will, the applicant has a possible interest in the property, thus he has a subsisting right under the will. However, the court agreed with the second contention, stating that a person cannot continue as an executor merely because he has been described as such in a will. The duties of an executor are to execute the will and administer the estate, and once these duties are fulfilled, the executor becomes a trustee. Therefore, the application under S. 301, Succession Act, does not lie as the remaining duties of opposite party 1 are more of a trustee than an executor.

Issue 2: Whether opposite party No. 1 failed to comply with the provisions of para. 6 of the will

The court noted that the applicant withdrew his claim regarding the monthly allowance of Rs. 15. The only remaining issue under para. 6 was the alleged failure to pay marriage expenses of the two daughters of Srimati Shukumari Devi. The court did not provide a detailed analysis of this issue due to the finding on Issue 1, which rendered the application under S. 301, Succession Act, inapplicable.

Issue 3: Whether opposite party No. 1 failed to comply with the second provision of para. 8 of the will

Similar to Issue 2, this issue became irrelevant due to the court's finding on Issue 1. The court did not provide a detailed analysis of this issue.

Issue 4: Whether the transfer by opposite party No. 1 to his wife of house No. D. 38/24, Hauz Katora, Banaras city, is contrary to para. 10 of the will

The court did not provide a detailed analysis of this issue due to the finding on Issue 1. The application under S. 301, Succession Act, was found to be inapplicable, which rendered this issue moot.

Issue 5: Whether the application is maintainable in view of the decree of the Court dated 20th April 1942

The court noted that a previous application under S. 301, Succession Act, had been dismissed or withdrawn as far back as 20th April 1942. The applicant, who had attained majority and was not a party to the compromise, contended that he was not bound by the decree passed in the Letters Patent appeal. The court found this contention incorrect, stating that the applicant was bound by the decree dated 3rd January 1941, which dismissed his petition under S. 301, Succession Act. Therefore, a fresh application on the same grounds was not possible. However, the applicant's counsel stated that the new grounds for seeking removal were the failure to pay marriage expenses and the transfer of the house to his wife. The court found that the application was maintainable only in so far as it related to these new grounds.

Conclusion:

The court concluded that the duties of opposite party 1, having been fulfilled as an executor, now fell under the role of a trustee. Therefore, an application for his removal under S. 301, Succession Act, was not applicable. The appropriate remedy would be to apply for the removal of the trustee under S. 71, Trusts Act. Consequently, the application was dismissed with costs.