In TEST.CAS. 59/2022-DEL HC- Registered document carries rebuttable presumption in its favour and is presumed to be genuine u/s 114(e) of Evidence Act; Burden is laid on party alleging contrary to its genuineness: Delhi HC
Justice Chandra Dhari Singh [23-12-2022]
 

Read Order: SWAPNIL GUPTA & ANR v. GOVT OF NCT OF DELHI & ORS 

Mansimran Kaur

New Delhi, December 29, 2022: The Delhi High Court has clarified that the Courts will not readily remove an executor appointed in probate proceedings unless gross misconduct, gross mismanagement, abuse, or misuse of probate is demonstrated. 

Justice Chandra Dhari Singh dismissed the present application preferred  by the fourth respondent,  being one of the beneficiaries of the Will under probate, under Section 247 of the Indian Succession Act, 1925 seeking appointment of Administrator of the Estate and assets of Late Ravindra Kumar Singhvi (Testator) and also for issuance of temporary injunction restraining the Petitioner (respondents) from alienating or creating third-party rights qua the estate and assets of the testator in the above-mentioned Will.

The Single-Judge Bench was of the view that the present application was not only liable to be dismissed on merits but also on the ground of maintainability as no preceding application under Section 301 of the Act was filed by the fourth respondent. 

The Testator was married to the second respondent  Smt. Amila Singhvi and out of the marriage two children being third respondent and fourth respondent took birth. A Will was executed by the Testator which was duly registered in the office of Sub-Registrar.

The Will was executed in the presence of two witnesses. Testator’s son and daughter being third & fourth respondents  were the only beneficiaries under the Will. The Testator left for heavenly abode and subsequent to his death and upon coming to the know about the existence of the alleged Will, the fourth respondent objected to the genuineness of the said Will and sought details of any transactions which were undertaken under the said Will. 

Subsequent to this, a probate petition came to be filed by the executors seeking probate of the Will but this application was dismissed as withdrawn. Subsequent to this, the present application came to be filed.

After considering the submissions from both the sides, the Court noted that the controversy in the instant application revolved around the appointment of an administrator pendente lite and removal of the executors which had been appointed by the Testator by way of the Will. 

The issues which arise for consideration were whether a case for appointment of administrator pendente lite u/s 247 of the Indian Succession Act, 1925 was made out and whether a prima facie challenge to the validity of the Will was raised.

In view of the same, the Court noted that it is trite law that the testator’s wish regarding as to who will be the executor of his estate and carry out his Will must typically be respected, and an executor named by the testator should not be removed from his office unless, there is convincing proof that his continued appointment would be harmful to the estates of the deceased and frustrate the testator’s Will. 

The named executor cannot be removed for a few isolated minor mistakes. This concept must be considered when determining whether the petitioners have provided enough evidence to have the executor removed from his/her role, the Bench added.

According to Section 211 of the Act, the executor of a deceased's will serves as the deceased's legal representative for all purposes and becomes the owner of the deceased's property as soon as the Testator passes away. The Bench also reaffirmed that the executor may exercise his authority and carry out the conditions of the will even if probate is not granted. 

There must be clear evidence that the executor's continued presence is detrimental or detrimental to the property and would frustrate the will which he is charged by law and the records of the will to administer. Minor errors, erroneous assessments, or inadequate handling of matters are not sufficient grounds to replace the testator's expression of confidence, the Court further noted. 

As per the Bench, if the Court is of the opinion that the Executor has acted or is acting improperly qua the Estate; or is acting in contravention to the intention of the Testator then, it shall be justified in exercising its jurisdiction under Section 301 of the Act in removing the executor and succeeding him by another. 

The main test which must guide the Court in reaching this conclusion is the best interests of the beneficiary. Even want of honesty or want of proper capacity to exercise duties or want of reasonable fidelity could justify an order under this section directing removal of the executor.

In view of the above-said principles, the Court was unable to agree that a case was made out for the appointment of an administrator pendente lite more so, as in the instant case, no application was moved under Section 301 to remove the incumbent Executor and provide for the succession of another person to such an office. 

Reference was also made to the judgments in  The Institute of Chartered Accountants of India vs. M/s Price Waterhouse & Anr.

In  view of the same, the Court further stated that  the issue of naming an administrator pendente lite would not come up unless and until the Executor is initially removed by the appropriate Court in accordance with section 301 of the Act.

On a perusal of the emails, the Court was of the firm opinion that Section 332 had been complied in the instant case as there had been a subsequent ratification of the transactions entered into by the third respondent by both the Executors herein.

Hence,  in  view of the foregoing discussion on law and facts, the Bench was of considered opinion that the present application was  not only liable to be dismissed on merits but also on the ground of maintainability as no preceding application under Section 301 was  filed by the fourth respondent.