Case Note & Summary
The dispute concerned the administration of the estate of the testator Bipin Gupta under his Will, wherein the executors appointed were Vasant Narayan Sardal and Behram Ardeshir. Ardeshir had initially renounced executorship, but was reinstated by an order dated 30th July 2009 passed by Dr DY Chandrachud J. Sardal, as the continuing sole executor, filed Notice of Motion No. 74 of 2015 seeking recall of that order, contending it was contrary to Section 230 of the Indian Succession Act, 1925, which renders renunciation irrevocable. During the pendency, Ashita, Monica and Pooja (sisters and niece of the testator) moved an application for removal of Sardal but later withdrew it. The Court took up all connected applications, including the validity of consent terms entered into by Sardal with the said sisters and niece on 22nd November 2005, which compromised the estate property at Norman Guest House, Marine Drive, in violation of the Will’s terms. The Court held that under Section 230, once an executor renounces, he can never thereafter apply for probate, and the order of 30th July 2009 was incorrect in law as it relied on In Re Manchersha Pestonji, a case relating to administrators, not executors. Ardeshir’s counsel stated that Ardeshir did not wish to continue as executor, rendering Sardal’s application infructuous. On Sardal’s conduct, the Court found that he had acted in breach of trust by entering into consent terms that contravened the Will and transacted in respect of a flat at Mahim in favour of the sisters and niece, despite the Will prohibiting any benefit to them. The consent terms were of dubious legality as they contemplated sharing proceeds from surrender of tenancy rights, with no provision for the estate. The Court held that such misconduct justified removal under Section 301 of the Indian Succession Act. Moreover, even without an application from a legatee, the Court, as custodian of public interest in a charitable Will, has suo motu jurisdiction to remove an errant executor to prevent illegality, especially as a probate order operates in rem. Accordingly, Sardal was removed as executor, the consent terms were set aside in both the Testamentary Suit and the Administration Suit, and the order of 30th July 2009 was held to be incorrect in law.
Headnote
A) Succession - Renunciation of Executorship - Irrevocability - Indian Succession Act, 1925, Section 230 - Renunciation by an executor, once made orally or in writing, precludes him from ever thereafter applying for probate; the order of 30th July 2009 reinstating Behram Ardeshir as executor after renunciation was in ignorance of Section 230 and is incorrect. Held that Ardeshir cannot serve as executor having once renounced. (Paras 4-6, 10) B) Succession - Executor vis-à-vis Administrator - Distinction - Indian Succession Act, 1925, Section 230 - In Re Manchersha Pestonji dealt with reinstatement of an administrator, not an executor; an administrator is appointed by court, while an executor is appointed by Will. Held that Section 230 applies only to executors and the reliance on that decision was inapt. (Paras 5-6) C) Succession - Removal of Executor - Misconduct - Indian Succession Act, 1925, Section 301 - Executor Vasant Sardal entered into Consent Terms with sisters of testator in respect of immovable property known as Norman Guest House, contrary to the Will which provided that estate not go to sisters; also dealt with flat at Mahim in violation of Will. Held that this constitutes misconduct warranting removal. (Paras 11-14) D) Succession - Removal of Executor - Suo Motu Power of Court - Indian Succession Act, 1925, Section 301 - Although Section 301 requires an application for removal, the Court in a testamentary proceeding where the Will gives to charity and there is no named beneficiary can act sui motu to remove an errant executor as guardian of the estate and to prevent illegality. Held that the Court’s jurisdiction is not ousted and it can intervene to protect public interest especially in a probate order that operates in rem. (Paras 15-16) E) Practice and Procedure - Setting Aside Consent Orders - Invalidity of Compromise Contrary to Will - Consent Terms dated 22nd November 2005 in Testamentary Suit and Administration Suit, structured to share unlawful benefits from surrender of tenancy rights, are of dubious legality and are set aside. Held that the executor cannot transact in violation of testamentary directions. (Paras 11-13)
Issue of Consideration
Whether an executor who has once renounced executorship can be reinstated despite Section 230 of the Indian Succession Act, 1925; whether the executor Vasant Sardal should be removed for misconduct including entering into consent terms contrary to the Will and dealing with estate property in violation of testamentary directions; whether the High Court can suo motu remove an executor in a charitable will where no legatee has applied for removal.
Final Decision
Ardeshir's reinstatement order of 30th July 2009 is declared incorrect in law; Ardeshir is held not entitled to function as executor; Sardal's Notice of Motion No. 74 of 2015 is rendered infructuous; Sardal is removed as executor for misconduct, including entering into illegal consent terms; Consent Terms dated 22nd November 2005 in Testamentary Suit and Administration Suit are set aside.
Law Points
- renunciation of executorship is irrevocable under Section 230 Indian Succession Act
- 1925
- reinstatement of executor after renunciation is not permissible
- executor who renounces is precluded from ever applying for probate
- court has inherent jurisdiction to remove executor for misconduct in charitable will even without application
- consent terms contrary to will are illegal and void
- executor dealing with estate property in contravention of will commits breach of trust
- Section 301 Indian Succession Act 1925 empowers High Court to remove executor
- court as custodian of public interest in wills for charity can suo motu intervene
