Removal of executor can proceed without probate, but clear proof of prejudice to the estate is still required.

A petition seeking removal or suspension of a joint executor was maintainable despite the will remaining unprobated, because Section 213 of the Indian Succession Act bars only attempts to enforce rights under the will and does not prevent reliance on an unprobated will for collateral purposes. However, removal of a named executor requires clear proof that continued office would prejudice the estate or defeat the testator's intention. On the facts, allegations of misappropriation of movables and jewels were not proved, and the complaints about funeral arrangements and incomplete implementation of the will did not establish sufficient misconduct. The application for removal therefore failed, and the executor remained in office.

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Issues: (i) Whether a petition for removal or suspension of a joint executor under Section 301 of the Indian Succession Act was maintainable even though the will had not been probated; (ii) Whether the respondent's conduct justified removal from executorship.

Issue (i): Whether a petition for removal or suspension of a joint executor under Section 301 of the Indian Succession Act was maintainable even though the will had not been probated.

Analysis: An executor is the legal representative of the deceased and the estate vests in the executor on the death of the testator. Probate is necessary to establish rights as executor or legatee under a will, but the bar in Section 213 operates only where such rights are sought to be established. A proceeding seeking removal of an executor is not a proceeding to enforce rights under the will. An unprobated will may be relied upon for collateral purposes, and an executor can act before probate. The petition for removal was therefore not hit by the absence of probate.

Conclusion: The petition was maintainable notwithstanding the fact that probate had not yet been granted.

Issue (ii): Whether the respondent's conduct justified removal from executorship.

Analysis: Removal of a named executor requires clear proof that his continuance would be detrimental to the estate or would frustrate the will. The evidence did not establish that the respondent had secretly removed or misappropriated the movables or jewels. The inventory was prepared with the petitioners' participation, and the allegation of removal of articles was not satisfactorily proved. As to the funeral arrangements, there were some lapses and disagreements, but the petitioners themselves were joint executors and shared responsibility for carrying out the testatrix's wishes. The failure to implement the will fully was also attributable to the parties' mutual discord and the pending probate proceedings. The record did not show any strong ground warranting removal.

Conclusion: The respondent was not liable to be removed as executor.

Final Conclusion: The application for removal of the joint executor failed, and the executor was allowed to continue in office.

Ratio Decidendi: A petition for removal of an executor is maintainable without probate, but removal will be ordered only on clear proof that the executor's continuance is prejudicial to the estate or defeats the testator's intention.

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