Courts Can Step In And Remove Errant Executor In Absence Of A Named Legatee: Bombay HC [Read Judgment]

The Bombay High Court has held that in the absence of a named legatee, courts can step in and remove an errant executor in order to protect the interests of one Bipin Gupta’s will.

Justice GS Patel removed the 82-year-old Vasant Narayan Sardal as an executor of Gupta’s will and directed him to deposit all the funds belonging to Bipin Gupta’s estate before the Prothonotary of the High Court within four weeks.

Case Background

Vasant Sardal was appointed by deceased Bipin Gupta as an executor of his will. The court noted that Sardal unlawfully entered into an agreement with Gupta’s sisters Ashita, Monica and his third sister’s daughter Pooja Bedi under certain consent terms regarding a property in Mumbai’s Marine Drive area.

The court was hearing a batch of testamentary suits and notice of motions filed thereunder, one of them filed by Sardal himself, seeking recall of an order by Justice DY Chandrachud at the Bombay High Court on July 30, 2009, reinstating Behram Ardeshir as the executor of Gupta’s estate even after Ardeshir’s renunciation.

Final Judgment

The court examined Section 230 of the Indian Succession Act, 1925 which states-

“Form and effect of renunciation of executorship. — The renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the Will appointing him executor.”

After hearing submissions from Ardeshir’s counsel Jehangir Jeejeebhoy, Justice Patel concluded that Ardeshir is not entitled to function or serve as an executor having renounced it.

The court observed that Sardal was in no physical condition to discharge his duties as an executor and was completely dependent on his son who had nothing to do with the will. In fact, all of Sardal’s financial dealings with the three ladies was handled by his son.

With regard to Sardal’s misgivings as an executor, the court said:

“In addition, and this is also not disputed, although Bipin Gupta said that no part of his estate was to go to his three sisters (Pooja is the daughter of a predeceased sister), Sardal has actually transacted with them in respect of a flat at Mahim. This he could not have done either.

The Consent Terms were structured in a way that contemplated receipt of money, presumably cash, from the landlord for surrender of tenancy rights of the Marine Drive flat at Firdaus. The Consent Terms proposed the sharing of this unlawful bounty (even if lawful under the Rent Act 1999, it is questionable and certainly unlawful under the terms of the Will) between Sardal and the three ladies. Interestingly, the Consent Terms do not mention that a half share would come to Bipin Gupta’s estate. They only name Sardal personally.”

Although Section 301 of the Indian Succession Act for the purpose of removal of executor or administrator and provision for successor states that the high court may, on application made to it, suspend, remove or discharge any private executor, in the present case no such application had been made.

Thus, the Justice Patel removed Sardal as the executor and said:

“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, it will step in. For, the primary task of a Court is to prevent a wrong from being done, and, if already done, to correct it, not to allow unlawfulness, illegality and injustice to run their polluted course. To allow that is unthinkable. It is a betrayal and abdication of any judge’s oath of office and judicial duty. I do not think there is anything in the ISA that says that a Court is to be sidelined and become a hapless, mute witness and nothing more. After all, when a Will is sought to be probated the result is an order in rem. It is global in reach. 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. Therefore, in a situation like this — where there is no named legatee 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.”