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TMI Blog1995 (2) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and his wife took away gold jewels from one of the beneficiaries forcibly and are misusing them. The respondent has been himself managing the property of the deceased and is acting contrary to the wishes of the deceased. The respondent gave a very cheap funeral to the deceased and placed the body in corporation hearse in spite of protests of the petitioners and relatives. The respondent has removed many articles and jewels from the house of the deceased stealthily. He has also misappropriated the amount specifically meant for funeral expenses of the testatrix. As the respondent is acting contrary to the wishes of the testatrix he is not fit to be a joint executor of the will, as such he is liable to be removed as an executor. 3. The respondent in his counter has denied the various allegations made in the petition. He has asserted that the deceased had provided a bank deposit of Rs. 4,490/- for funeral expenses, that he utilised that amount and certain other funds for conducting the funeral and subsequent ceremonies in a manner befitting the status and wishes of the testatrix, that he gave a first class funeral by engaging services of M/s. Snaize Brothers, who are the best known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediately on the death of the deceased- and the probate is not necessary to make an executor act and that the executor can even effect a sale. He therefore contended that for removal of a private executor under Section 301 probate of the Will is not a condition precedent. 6. Under Section 211 of the Act an executor of a Will of the deceased is a legal representative of the deceased for all purposes and the property of the deceased vests in the executor immediately after the death. The law is fairly well settled that the executor can exercise his powers as executor and act in accordance with the terms of the Will even though probate of the Will is not granted. In fact one of the points of distinction between an executor and administrator is that the executor may act even before he obtains probate but an administrator cannot act unless letters of administration are granted to him. The interest of an executor in the estate of the deceased vests in him immediately on the death of the testator. 7. Section. 222 of the Act stipulates that probate shall be granted only to the executor appointed under the Will. Under Section 229 when a person appointed as executor has not renounced the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held that to maintain an application for his removal probate of the Will is not a condition precedent. The proceeding to remove an executor cannot be considered to be proceeding for establishment of right of an executor or a legatee. In the present case it is undisputed that the petitioners and respondent have been appointed as executors under the Will and that they have accepted executor-ship. As such it cannot be said that the petition is not maintainable under Section 301 only on the ground that probate of the Will has till not been granted. 10. Ordinarily the desire of the testatrix as to who should administer her estate and execute her Will will have to be respected and an executor appointed by the testator should not be removed unless there is clear evidence that his continuance as an executor would be detrimental to the estates of the deceased and frustrate the Will of the deceased. Some minor lapses here and there cannot be a ground to remove the named executor. Bearing in mind this principle it has to be seen whether the petitioners have established sufficient grounds to remove the respondent from executorships. 11. The facts that the deceased had left funds for her fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegations made against the respondent is that he removed some jewels forcibly from the person of Miss Malini. Some complaint is stated to have been lodged in that regard. At least to prove that she should have been examined. If really the respondent had removed any articles, the two petitioners would not have agreed to an inventory of the articles available in the house on 21-11-1987 being prepared without recording the fact that some moveables had been removed prior to that date. The petitioners evidence with regard to removal of certain moveables by the respondent is vague and he does not state in his evidence as to when they were removed. In the cross-examination of the respondent it is suggested that he took away some cash which was in the almirah. This is not spoken to by the first petitioner in his evidence. On the other hand the inventory shows a cash of Rs. 123/- was found. 13. At the stage of evidence it is alleged that the respondent has removed costly sarees and some clothes which had to be given to the home for the aged. The inventory contains the details of all sarees including silk sarees, nylon sarees and sarees for rough use apart from other garments. Thus th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the funeral the corporation hearse was not used. 17. There is a controversy as to whether a first class funeral was given to the decease. It is not disputed that the deceased wanted that a first class funeral should be given, that a gregorian mass should be arranged and that the ceremonies should be performed in a befitting manner. While the petitioner and P.Ws. 2 and 3 assert that a cheap funeral was given, that proper arrangements had not been made and that all the relatives felt hurt, the respondent asserts that he had made all necessary arrangements, that he had entrusted the funeral arrangements to M/s. Snaize Brothers who are reputed undertakers, that he had also arranged a luxury bus for the mourners to go to the cemetery and come back and that he had also arranged for snacks, etc. and that even 3rd and 11th day ceremonies were performed and that he has spent more than Rs. 2000/- in addition to the sum of Rs. 4,490/- drawn from the account of the deceased meant for that purpose. 18. P.W. 3 in his cross-examination has stated that according to him first class funeral will be performed by entrusting the funeral arrangement to M/s. Snaize Brothers. He denies that M/s. Sna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey made suggestions to respondent and that the respondent did not heed their words, P.W. 1 does not state as to what prevented him and other petitioner from making necessary arrangements. The petitioners themselves being executors, if there were any lapses in the funeral arrangements, they have to share the blame and they cannot make that a ground to have the respondent removed. 19. It is alleged in the evidence that suitable tomb has not been erected as desired by the testatrix. This is not a ground alleged in the petition. Obviously the tomb had to be built after some time. But it is seen that disputes have started between the executors within a short time after the death of the deceased and there have been even complaints to the police. It would therefore appear that steps have not been taken to carry-out the terms of the Will. But here again all the executors including the petitioners have to share the blame and the petitioners cannot make that a -ground to remove the respondent. It would appear that the first petitioner wanted some jewels bequeathed to Miss Malini to be handed over and the respondent agreed to hand over those jewels, if the petitioners executed any indemnity b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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