TaxTMI 
TaxTMI 
2018 (5) TMI 2174
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.... should be read with this one, and will be treated as incorporated in this order for the purposes of the factual background and the identification of the issues. 2. However, the position has marginally altered since. For, Notice of Motion (L) No. 101 of 2018 filed by Ashita, Monica and Pooja for removal of Vasant Sardal, was allowed to be withdrawn on 25th April 2018. 3. What remains is this. There is first of all Notice of Motion No. 74 of 2015 filed by Vasant Narayan Sardal ("Sardal") for recalling the order passed by Dr DY Chandrachud J (as he then was) on 30th July 2009 reinstating Behram Ardeshir ("Ardeshir") as an executor after his renunciation. In view of the order that I propose to pass today removing Sardal as an executor - my reasons follow - Mr Jeejeebhoy for Ardeshir states that Ardeshir will not continue and does not desire to continue as an executor. Ardeshir is present in Court. This will render Sardal's Notice of Motion No. 74 of 2015 infructuous. That Notice of Motion sought a reversion to a prior state of affairs where Ardeshir had renounced executorship and Sardal continued alone. 4. In any case, I believe Sardal's application would have had to be allowed eve....
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....nferment on a named individual by a person now dead. An executor's heirs cannot succeed to his position. He, and he alone, can occupy that position. For this reason, there is no 'deemed' or 'implied' renunciation.1 It must be in writing, or it must be to the Court. ISA, Section 230. 8. The executor (or administrator) of a deceased is his legal representative. The property of the deceased vests in him as such. ISA, Section 211 No right as an executor is established unless probate is granted. ISA, Section 213. Probate can only be granted to an executor named as such in the Will, and no one else, though the appointment may be express or implied. ISA, Section 222. Probate, when granted, establishes the Will from the death 9. 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. Otherwise, executors will constantly step in and out of probate proceedings. If executors constantly renounce executorship and then renounce their renunciation, the inevitable result is uncertainty, confusion and chaos in the administra....
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....cutor or administrator and provision for successor.- The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate." (Emphasis added) 15. Clearly the section speaks of an application for removal being made to the High Court. But what does this mean exactly? Can this ever mean that the hands of a Court of equity and a Court of conscience are so utterly tied that the Court is reduced to a helpless bystander as the executor of a Will that gives to charity, and of which there is no beneficiary can seek removal of the executor, plays ducks and drakes with the estate; deals with it contrary to the terms of the Will that appointed him in the first place; and is generally unaccountable for his actions? Where there is such a Will, one that gives to public causes, I do not believe that this Court's jurisdiction can ever be said to end at being a silent spectator. Whenever a Court in the performance of its duties sees wrong being done,....
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.... This was most apparent. In the little that he has been able to say to me, not once has Sardal mentioned Bipin Gupta or the interest of the estate. His only words are about his son and nothing and nobody else. 18. He also quite clearly said that whatever he was doing was for his son. That should end any further discussion. 19. I would be grossly remiss in my duties if I allowed Sardal to continue as an executor in his present condition. To allow him to do so only exposes him to further charges, responsibilities and duties which he is clearly unable to bear or discharge. 20. Simply on the ground of physical and mental incapacity Sardal must be removed at once. His acts as an executor are being directed entirely by his son and this is plainly apparent from what has transpired in Court before me. 21. Notice of Motion No. 74 of 2015 seeking a recall of the order of 30th July 2009 reinstating Ardeshir is dismissed on facts, although its reasoning is not the correct position in law for the reasons discussed earlier. 22. Vasant Narayan Sardal is removed as an executor but in consideration of his age and health, I will, for the foregoing observations notwithstanding, direct that this ....
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....ses will have to be summoned. Their evidence, on which I will issue separate directions, is to be taken directly in Court and not on Affidavit. I appoint Mr Ketan Trivedi, the Commissioner for Taking Accounts, to be substituted as the Plaintiff in the Testamentary Suit. He will carry out the necessary amendments to the Plaint and the Petition without need of reverification. 28. All three Notice of Motions are disposed of in these terms. No costs. 29. All funds that belong to the estate of Bipin Gupta and that are in the hands of Sardal will be deposited with the Prothonotary and Senior Master of this Court within four weeks from today. Mr Ardeshir, who is present in Court, says that no part of the estate of Bipin Gupta is with him. The statement is noted. 30. It seems that at some point when Sardal was younger and nimbler, and for some reason being assisted by Ardeshir, they gave instructions to M/s Bilawala & Co., then the Advocates engaged. In the course of this, M/s. Bilawala & Co. were entrusted with several documents and items. When disputes arose, M/s. Bilawala & Co., unsure of who was actually responsible for the estate, did not return the documents and items. Mr Ayaz Bil....