While fulfilling the duty of a guardian, the Hon’ble Bombay High Court held that it can remove an errant executor of a Will when there is no named legatee who can demand his removal.
In an exemplary step, Hon’ble High Court of Bombay observed that in absence of a named legatee the court can step in and save the interests of a testator expressed by way of a Will. In the matter of Vasant Narayan Sardal v. Ashita Tham & Ors., Hon’ble Justice G. S. Patel has categorically described the scope and meaning of sections 230 and 301 of the Indian Succession Act, 1925 and the duty of the court under this Act in entirety. While hearing a number of Notice of Motion and Testamentary Suits clubbed together in this matter, the Hon’ble Court observed firstly, that when an executor has renounced his executorship then he cannot be in any case reappointed to be an executor of the same Will. An observation of section 230 of the Indian Succession Act, 1925 which reads as follows is considered to be apposite:
“230. Form and effect of renunciation of executorship- The renunciation may be made orally in the presence of the Judge, or by writing signed by the person renouncing, and when made [emphasis added] shall be preclude him from ever thereafter applying for probate of the Will appointing him executor.”
While circumscribing the scope and aim of this section, Justice Patel, concluded that the position of an executor is bestowed with humungous amount of trust by a testator and hence when an executor renounces his executorship then it has to be treated with utmost gravity. Apart from this a reference to section 230 makes it lucid that, what this section contemplates has to be gathered from the term ‘when made’, therefore the moment an executor makes an application for renunciation that shall be treated as final leading nowhere to a situation where there can be a re-entry by an order of the Court.
Secondly, while dealing with the question of removal of an errant executor, the Hon’ble Court also dealt with the scope of section 301 of the Indian Succession Act, 1925 along with duty of the court. It was observed that even though there is a requirement of an application to be made for removal of an executor under section 301 which is not the case in the present matter but in order to do complete justice and not be a bystander while wrong is being committed Justice Patel succinctly observed as follows:
“. . .When there is such a Will, one that gives to public causes, I do not believe that this Court’s jurisdiction can ever be said to end at being a silent spectator. Whenever a Court in performance of its duties sees wrong being done, it will step in. . . . I do not think there is anything in the [Indian Succession Act] that says that a Court is to be sidelined and become hapless, mute witness and nothing more. After all, when a Will is sought to be probated the result is an order in rem. It is global in reach. This makes it all the more incumbent on a Court to intervene and not sit idly by when there is demonstrated illegality or unlawfulness writ on the face of record. Therefore, in a situation like this- where there is no named legatee who can ask removal of an errant executor- the Court can and will step in as a guardian and custodian [emphasis added] of the interest that devolves in that Will.”
Therefore, the Court can remove an errant executor even when such an application is not made and there is no legatee named in the Will.
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