Executor of will in appropriate cases can be removed by Bombay Court
The judge observed an executor is a confidante of choice of the testator. Once he renounces this most solemn trust, the renunciation is irrevocable and irreversiblemumbai Updated: Jun 09, 2018 01:07 IST
The Bombay high court has said it can on its own remove the executor of a will in appropriate cases, although Section 301 of the Indian Succession Act (ISA), 1925, requires an application to be made to that effect. Accordingly, the court removed Vasant Sardal, 82, from functioning as an executor of the will left behind by Bipin Gupta, the deceased maternal uncle of actor Pooja Bedi.
“I don’t think there is anything in ISA that says a court is to be sidelined to become a hapless, mute witness and nothing more (even if it comes across as wrongdoing),” justice Gautam Patel said. He said, when a will is sought to be probated the result is an order in rem (against the entire world).
“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,” justice Patel said.
“Therefore, in a situation like this, where there is no named legatee (beneficiary under the will) who can seek removal of an errant executor, the court can and will step in as a guardian and custodian of the interest that devolves in that will.”
The judge was irked to note Sardal had entered into consent terms with Gupta’s sisters, Ashita and Monica. Pooja was a representative of her deceased mother, Protima, also Gupta’s sister. This was in contradiction to terms of the will left behind by the deceased. Gupta had said in terms that no part of his estate shall go to the sisters, despite which Sardal entered into consent terms with them with regards to tenancy rights of a property at Marine Drive.
According to Justice Patel, what was more upsetting was the fact that half the proceeds of the tenancy rights of the Marine Drive property were to go to the three sisters, and rest half to Sardal personally and not to the estate of the deceased.
The court removed Sardal on the ground that because of advanced age and difficulty in hearing, he was unable to function as an executor of Gupta’s will and appointed another person in his place. Justice Patel also struck down the consent terms entered between Sardal and the three sisters, way back in 2005.
In the course of his order, Justice Patel also clarified that renunciation of an executor is irrevocable. If an executor renounces his position as such, he cannot be allowed to function as an executor again.
“An executor is a confidante of choice of the testator. Once he renounces this most solemn trust, the renunciation is irrevocable and irreversible. He cannot be allowed re-entry. He cannot renounce or recant his renunciation,” said Justice Patel.