Patel Vrajlal Bhagwandas vs Patel Jamnadas Tribhovandas and Others

Chhatpar, J.—This appeal arises out of an application filed by the Respondents u/s 301, Succession Act for removal of "the present Appellant from his office as executor and for consequential relief of rendition of accounts by him. it may be mentioned that Section 301 has been'' modified by the Saurashtra State and the power to entertain such applications has been vested in the District Judges.

One Bai Diwali Kalyanji, widow of Patel Mathuradas, died on or about 9-2-1940 leaving a will dated 31-1-1940 by which she appointed four persons as trustees of her estate which comprised,an immovable property situated at Bhavnagar, sale proceeds of some ornaments and utensils. The lour persons, appointed as trustees under the wilt wore Gandalal, Bhagwandas, Tribhovandas and that" present Appellant Vrajlal. The first tutee died is. Lore and an application was made for appointment on new trustees in their place and tin Dustiest Judge, Bhavnagar, appointed the present Respondents as trustees u/s 7-1, Trust Act by an older dated,) I'' CIO, The former trustees had obtained a ''versa certificate'' under the Bhavnagar State law. it may be mentioned that these persons were not appointe.fi as executors by the deceased but as trisects of the estate and indeed there was very little to boo Dona .so lard as the duties of an executor were'' concerned as directions in the will were mostly hi the nature of creation of a trust and its administration. Though available propriety sod''s lo be partly in ice occupation old the deceased and partly of her sister Kasturbai. Under the will, Kasturbai was to be permitted to reside in the portion occupied by her while the portion occupied by the deceased was To be let on rent and the rent was to be given to Kasturhai dining lieu- Lifetime.

Addition list 1500/- and odd when; realized by sale of ornaments shortly before the death of the deceased, and there were some utensils worth about Rest. 150/- or so. This was probably the entire estate left by the deceased. The direction in the will was that subject .to the interest created in favor of her sister Masturbation the property was to be utilized for charitable purposes as the trustees thought fit. The original trustees obtained the Versa'' certificate as stated above but very little shoo-ins to haw were done: by them. Tim utensil,'') were alleged lo have been pilfered by Chasuble against whom a complaint was filed and in the criminal proceedings the utensils were recovered and given lo the present Appellant who admits their possession; but lie claims that ho has kept them in a rented premises and for which he claims Rs. 5/- as rent per month.

The Appellant denies that he has any and counts or any funds of tire estate with him, After the death of the deceased Diwali the portion of the property occupied by her has not been let to anybody It is ''tying locked and there is a dispute us to who has the key of it, It is clear that the Respondents and the Appellant do not agree amongst) themselves. The opponents filed an application u/s 301, Succession Act for removal of the Appellant as executor and the Court accepted this Application, removed the Appellant as executor and ha? Ordered him to furnish accounts of the estate. Against this order the present appeal has been filed.

A preliminary objection has been raised by Mr. Hatlii the learned Advocate for the Appellant that the application u/s 301, Succession Act is; not maintainable as these persons are not executors at all but trustees of the estate of the deceased and the appropriate remedy for removal Of a trustee where there are disputes is by way of a suit. Even an application u/s 73 or 74, Trusts Act would not be competent for removal or a trustee and appointment of a new trustee, much less can an application lie u/s 301, Succession Act for the removal of an executor.

This preliminary objection is well founded in law. In the first place the deceased in the will has not appointed the original four persons as executors but as trustees of the estate and although that mention of a particular name does not matter but the duties of the four persons appointed under the will were principally those of a trustee as no debts were to be collected or legacies paid, but the estate was to be administered as a trust and the ultimate benefit was to go to charity which would take many years. So clearly there were no executors of the will but only trustees of the estate appointed by the will. And this is supported by the tact that in. place of the three original trustees who are dead an application was made u/s 74, Trusts Act for appointment of new trustees in their place.

So the present parties are trustees and cannot be properly designated as executors although they have been referring to themselves as executors of the will. In this connection, I may refer to the following decision of the Allahabad High Court in Tn the goods of Sarnath Sanyal AIR 1949 AIL 93 (A):

A person cannot become an executor or continue as such merely because he has been so described in a will. The duty of an executor is to execute the will and lo administer the estate of I lie deceased. The duties of an administrator to whom letters of administration have been granted and he duties of an executor who has obtained probate of a will are much the same. The duties n. an executor mainly are H> cool led, fjet in and id minister the estate of the deceased and alter this has been done and the estate has been settled, Jigs duties as executor are finished and if he is inquired to continue to be in charge of .the property for the benefit of certain benidarh.-be an executors and becomes a trustee of the properly, The duties of an executor and a am quite different. When after the estate has been administered, the executor becomes a trustee of the properly for the benefit of the beneficiaries, an application for has removal u/s 101 is not maintainable.

And for the proposition that where a breach of trust is alleged by any trustee and that is made it ground for his removal the appropriate remedy is be way of a suit. I-may refer to a Bench decision of the Bombay High Court in Nathabhai Devidas Vs. Vaghjibhai Jhaverbhai, wherein it was held .that applications for the removal of trustees should generally speaking he brought by a suit, where it is alleged that the trustees have committed breach of trust. This nil lug has boon referred to in a Siitd decision it "Tirathdus Dhararndas v. Sh. l''tinneRhwiirbal AIR 1043 Sine 22 (C), wherein it is observed that Section 73 and 74, Trusts Act are not intended lo apply to contentious or disputed cases where proceeding by way of suit is appropriate, but to cases appropriated to a summary procedure where facts are not disputed or cannot reasonably be disputed.

In the present case there is a good deal of dispute and bad blood between the parties, each is charging the other with breach of trust although in fact there is very little'' property to administer. Nevertheless, on this technical plea the Appellant is entitled to succeed as the application u/s 301, Succession Act is not maintainable. The result is that this appeal succeeds and the order of the lower Court is set aside. In view of the peculiar circumstances of the case and as this point! does not seem to have been argued in the lewi Court- I order each party to bear his own c throughout