1995 (2) TMI 479 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the petition under Section 301 of the Indian Succession Act without probate of the will.
2. Allegations against the respondent for mismanagement and misappropriation of the deceased's estate.
3. Allegations regarding the conduct of the deceased's funeral and subsequent ceremonies.
4. Failure to implement the terms of the will.

Detailed Analysis:

1. Maintainability of the Petition under Section 301 of the Indian Succession Act without Probate of the Will:
The respondent contended that the petition was not maintainable under Section 213 of the Act as the will had not been probated. The petitioners argued that probate was not a condition precedent for the removal of an executor under Section 301. The court held that under Section 211, an executor is the legal representative of the deceased and the property vests in the executor immediately after death. The executor can act in accordance with the will's terms even without probate. Section 213(1) bars the establishment of rights as an executor or legatee without probate, but this does not apply to proceedings for the removal of an executor. Therefore, the petition was maintainable.

2. Allegations Against the Respondent for Mismanagement and Misappropriation of the Deceased's Estate:
The petitioners alleged that the respondent took possession of all movables, including gold jewels and silver articles, without their reference and locked them in a room. The respondent denied these allegations, stating that an inventory was prepared in the presence of the petitioners and that the items were locked with both parties having keys. The court found that the petitioners' evidence was vague and did not establish that the respondent removed any articles. The inventory showed all items, including cash, and there was no material to show that the respondent appropriated any movables for his use.

3. Allegations Regarding the Conduct of the Deceased's Funeral and Subsequent Ceremonies:
The petitioners and witnesses alleged that the respondent did not give a first-class funeral to the deceased and used a corporation hearse. The respondent provided evidence that he engaged M/s. Snaize Brothers, reputed undertakers, and made necessary arrangements, including a luxury bus for mourners. The court found that while there were some lapses in the arrangements, the respondent did not stint on expenses and spent more than what was provided by the deceased. The petitioners, also being executors, shared the obligation to carry out the deceased's wishes and could not solely blame the respondent.

4. Failure to Implement the Terms of the Will:
The petitioners alleged that the respondent failed to implement the will's terms. The respondent argued that the will had not been probated, making it difficult to act. The court noted that the petitioners and respondent had initially filed for probate, but the petition was dismissed for default due to a lack of interest from the petitioners. The respondent had since filed another petition for probate. The court found that the failure to implement the will was not entirely the respondent's fault and that all executors, including the petitioners, were to blame for the delays.

Conclusion:
The court concluded that no strong grounds warranted the removal of the respondent as an executor. The petitioners and respondent were expected to cooperate to ensure the will's implementation. The petition was dismissed, with a note that if the executors continued to fail in their duties, the removal of all executors might be considered in separate proceedings. The petition was dismissed with no costs.