Tara Chand Sharma and anr., Vs. Uma Aggarwal and ors. - Court Judgment

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trusts and societies - removal of trustees - section 301 of the indian succession act, 1925 - deceased bequeathed all his property to trust - probate in respect of will granted in favour of executive trustee - sister of deceased filed application under 301 of act for removal of appellants, executive trustee as well as other trustees - application allowed and appellants were removed - hence, present appeal - whether order of removal of appellants justifiable? - held, on perusal of facts it found that property was not used by appellants for purpose for which same is bequeathed or in accordance to will - therefore, conduct of appellants was illegal and made them liable to be removed - removal of appellants clearly called for under section 301 of act - thus, impugned order upheld and appeal dismissed - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 1. seth bhagirath dass was a well known senior advocate practicing in this court. besides this, i have no other relative except my sisters, who are all well settled except smt. failure to use bagichi which fell vacant after death of soni bai for purposes of trust; joshi, uma aggarwal failed to respond to notice dated 5.5.1990 and on that account, bansi lal chhapria and santosh bajaj were substituted in place of the trustees who had resigned. putting forward of an untenable right by the executor which was in conflict with rights of beneficiaries or any malafide act of the executor or failure to act for welfare of beneficiaries was sufficient to invoke jurisdiction under section 301. reliance was placed on judgment of madras high court in pb srinivasan and anr. (xi) the executor in the will was required to execute the will as well as to administer the estate of the deceased. 4. in the good of to submit that title tomrs. or (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; it is also well settled that a court of record always has jurisdiction unless shown otherwise. order dated 16.4.1991 granting probate clearly mentioned that yadvinder thakur was the executor and he was transposed as petitioner by order dated 18.5.1990 in that capacity. conduct of the appellants cannot be held to be good merely because conduct of the applicant was not above board. the removal of executor was clearly called for under section 301 and removal of other appellants was consequential being inter-connected to the functioning of the executor.adarsh kumar goel, j.1. seth bhagirath dass was a well known senior advocate practicing in this court. he died on 25.4.1989. he was survived by his wife and sisters but had no issue. he executed will and codicil dated 21.1.1985 and 29.12.1989 bequeathing most of his property to a trust formed by him in his life time in the name of his mother. main objects of the trust are meeting educational and health needs of the needy. he named yadvinder thakur, who was one of the trustees, as the executive trustee. probate in respect of the will was ordered to be granted in favour of shri thakur. however, application was filed by sister of the deceased under section 301 of the indian succession act, 1925 for removal of the executor. the said application, after trial, has been granted with other consequential orders, which are sought to be assailed by the removed executor and trustees by filing lpa nos. 112, 132 and 134 of 2006 which will stand disposed of by this order. operative part of the impugned order is as under:in brief, the conclusions are as under:1. yadvinder thakur-respondent no. 1 is removed from the office of executor as also from the office of the managing trustee.2. om parkash aggarwal-respondent no. 2 is removed from the office of trustee.3. the appointment of all other trustees by respondents no. 1 and 2 is declared illegal.4. respondents no. 1 and 2 shall hand over the properties of the trust to the successor executor for being managed by the trustees.5. they shall render accounts of these properties to the successor executor and the trustees.6. the respondents will even be prosecuted if they defaulted in rendering accounts which remedy will be open to the successor executor.7. the tenant in house no. 31, sector 9a chandigarh (property of the trust) shall be answerable and accountable to the board of trustees.8. the occupants of land measuring 22 kanals situated in village kapat, district hoshiarpur, shall be answerable to the successor executor-cum-board of trustees and will render account of income to them.9. honble mr. justice g.c.garg (retired) is appointed as successor executor, as also the managing trustee.10. shri m.s. lobana, district & sessions judge (retd.) now practicing as an advocate in this court and shri n.s. saini, additional district & sessions judge (retd.) resident of house no. 599, phase iii sas nagar, mohali, are appointed as the trustees, so as to make the board of trustees functional, as minimum 3 trustees are required.11. the executor shall consolidate the properties of the trust and place it at the disposal of the board of trustees for being managed for the purpose for which the trust is created.12. he shall also take the accounts of the income of these properties and account for the same to the board of trustees.13. the various items of movable property etc., shall also be consolidated in the sb account of the trust.14. the board of trustees shall manage and govern the properties of the trust in commensurate with the sentiments of the testator of the will dated 21.1.1985 and founder of the c.c. trust created by trust deed dated 18.1.1966 and in accordance with the contents of these documents. they shall maintain full accounts and the executor-cum- managing trustee would be paid rs. 20,000/-per month as honorarium, while the trustees would be paid rs. 2000/-per meeting. all of them will also be entitled to actual expenses spent to achieve the aim and objects of the will and of the trust deed.15. proper accounts will be maintained and be filed in this court within two months after the expiry of each financial year.16. the properties shall be managed by the board of trustees in parentally manner. however, it will not be sold without prior permission of the court.17. the successort-executor or the board of trustees will be free to seek any clarification from this court.18. henceforth, the bank accounts in the name of champawati charitable trust or in any other name relating to this case, operated by this court through its registrar, shall now be operated jointly by the executorcum- managing trustee and one of the two trustees.19. accordingly, cm no. 2565-cii of 1993 and cm no. 1357 cii of 2001 are accepted in terms stated above. all other misc. applications stand disposed of in terms of the above orders.copies of this judgment, alongwith a copy of the will, copy of codicil, copy of the trust deed, copy of the supplementary trust deed, be sent to the successor executor and to all the members of the trust and a copy of this order be sent to the registrar of this court and to the concerned bank authorities, for necessary compliance.2. immovable properties described in the will are as under:i) bagichi situated in bagh rama nand, amritsar (huf)ii) a tewala in katra man singh, amritsar (huf).iii) a tewala in katra karam singh (huf).iv) a bungalow situated at chandigarh no. 31, sector 9a, chandigarh (individual).v) land measuring about 22 kanals in village kapat, district hoshiarpur (huf) which has been given on lease.3. other relevant contents of the will are:2. that i have no male issues and i have only wife who is alive. besides this, i have no other relative except my sisters, who are all well settled except smt. geeta bai.3. that since there is nobody to look after my properties in the event of my death, i propose to dispose of my properties as under:i) that i have already a registered trust known as champawati charitable trust, amritsar, of which shri yadvinder thakur is one of the trustees. by this will, i dispose of all my properties in the name of champawati charitable trust which will be managed by the trustee above mentioned, plus shri prem tuteja advocate of gali no. 1 lawerance road, amritsar, and shri om parkash aggarwal, advocate of amritsar and mr. mp joshi, advocate. these four trustees shall manage all my properties. shri prem tuteja shall be the chairman of the trust in my absence and the executive trustee shall be shri yadvinder thakur, who will be paid a sum of rs. 500/-per mensem for administering my estate and for managing all my properties.ii) that the properties mentioned above shall vest in the trust and shall be administered by the trust, but so long as i am alive, champawati charitable trust would be run under my chairmanship.4. some of the relevant contents of the codicil are as under:besides the four trustees whom i have already named in my will to administer and manage the trust i hereby appoint and nominate shrimati uma aggarwal as the 5th trustee exercising all the powers as the other four trustees.(smt. uma aggarwal was dautherin- law of shanti, sister of seth bhagirath das).5. the objects of the trust deed are as under:a) to establish educational and technical training institutions an recreational centres;b) to award scholarships for the education of the indigent, needy and forlorn children; andc) to establish clinics dispensaries, hospitals for the treatment of ailing children.6. uma aggarwal filed application for probate under section 278 of the indian succession act, 1925 (in short, the 1925 act) in this court on 13.7.1989. soni bai, widow of late seth bhagirath dass, (respondent no. 9 in the petition) contested the application, inter-alia, stating that the testator had adopted one sanjay kumar, (respondent no. 8 in the petition) as a son on 13.7.1975 and adoption was reduced into writing on 13.4.1981. partition had taken place and partition deed was registered on 11.4.1986 in the office of sub registrar, amritsar wherein one of the properties mentioned in the will came to the share of soni bai and two of the properties mentioned therein came to the share of sanjay kumar.7. a joint written statement was filed by yadvinder thakur and om parkash aggarwal (respondent nos. 1 and 3 in the petition) supporting the plea of partition and also stating that as per contents of the will, probate was required to be granted to yadvinder thakur.8. on 18.5.1990, learned counsel for uma aggarwal stated that he had no objection if yadvinder thakur was transposed as co-petitioner and granted probate. however, there being dispute with regard to codicil raised by respondent no. 1, issues were framed and finally on 16.4.1991, probate was granted. it was held that the will and the codicil were duly executed. lpa no. 559 of 1989 against the said order was dismissed on 13.7.1992.9. though, probate application was disposed of, as above, impugned order has been passed on misc. applications moved in the probate case itself. yadvinder thakur filed cm no. 1733 cii of 1993 under section 151 cpc for placing on record amended schedule of moveable and immovable properties mainly with regard to bagichi in bagh rama nand, amritsar, claimed to have fallen to the share of soni bai in partition deed dated 3.4.1986 (registered on 11.4.1986). he also filed application for being put in possession of chandigarh house and for direction to bank to pay court fee for probate out of account of the testator. cm no. 2565 cii of 1993 was filed by shanti devi, sister of the testator, under section 301 of the 1925 act for removal of yadvinder thakur as executor on the ground that yadvinder thakur and om parkash aggarwal had started misappropriating corpus of the c.c. trust for their personal use. prem tuteja, advocate (trustee) had resigned on 26.3.1990, while m.p. joshi, advocate (trustee) resigned on 14.4.1990. uma aggarwal, who was fifth trustee, was not taken into confidence with regard to management of c.c. trust property. it was further alleged that there was misappropriation of rental income of the trust for personal gains; failure to use bagichi which fell vacant after death of soni bai for purposes of trust; collection of rent by allowing trust property for parking purpose and using the money for personal gains; closing the hospital which was being run by the trust by dispensing with the services of the doctors and the compounders and not recovering income from bagichi at amritsar and land in village kapat.10. yadvinder thakur contested the application under section 301. his stand was that uma aggarwal had not handed over possession of kothi no. 31, sector 9a, chandigarh. shanti devi and uma aggarwal had filed suit under section 92 cpc for removal of trustees, which was dismissed by additional district judge, chandigarh. the application was to defeat order of giving of possession of chandigarh house. the bagichi at amritsar had come to the share of soni bai and other properties in katra karam singh and gate man singh had come to the share of sanjay kumar. om parkash aggarwal had opened his office in the bagichi as tenant under soni bai. sanjay kumar executed gift deed dated 9.5.1989 in favour of c.c. trust. soni bai created trust vide registered trust deed dated 8.12.1989 and had bequeathed her property to the said trust. the dispensary was not functioning on account of lack of funds. rental income of the trust was only rs. 3150/-p.m.,which was accounted for.11. cm no. 1357-cii of 2001 was filed in cm no. 2565 cii of 1993 seeking grant of direction for appointment of new trustees for running the c.c. trust or the properties of the trust be transferred or donated to any other institute carrying on similar objects. the said application was filed by the advocate after the death of shanti, without her heirs having been substituted. in reply to the said application, yadvinder thakur took the stand that after resignation of prem tuteja and m.p. joshi, uma aggarwal failed to respond to notice dated 5.5.1990 and on that account, bansi lal chhapria and santosh bajaj were substituted in place of the trustees who had resigned. on death of bansi lal chhapria on 30.3.1996, dr. vibhakar sharma was appointed as trustee. on resignation of santosh bajaj on 21.12.1996, major tara chand and sanjay aggarwal were appointed as trustees in meeting held on 3.2.1997. the application having been filed by advocate, of his own, was not maintainable. the executor had not started functioning, in absence of certificate of probate and in these circumstances, the application was not maintainable.12. keys of chandigarh house having been surrendered by uma aggarwal, proceedings for leasing out of kothi no. 31, sector 9a, chandigarh during pendency of the main case also took place. the said property was leased out at monthly rent of rs. 65000/-for some period. the said lease came to an end. on 5.2.1996 by an interim order, yadvinder thakur was restrained from acting as executor.13. findings recorded by learned single judge after considering the pleadings and rival contentions, can be summed up as under:(i) application under section 301 of the 1925 act was maintainable. removal of executor and appointment of his successor can be only under section 301. reliance was placed on judgment of lahore high court in karma devi v. radha kishan and ors. air 1935 lahore 406.(ii) non issuance of probate was no bar to maintainability of the application. putting forward of an untenable right by the executor which was in conflict with rights of beneficiaries or any malafide act of the executor or failure to act for welfare of beneficiaries was sufficient to invoke jurisdiction under section 301. reliance was placed on judgment of madras high court in pb srinivasan and anr. v. tps varadhan 1981(2) mlj 158. judgment of this court in sb ranjit singh and anr. v. s. santokh singh rais and ors. 1950 plr 313 was distinguished.(iii) conduct of the executor was malafide. as against the stand of the testator in the will that he had no male issue and no other relatives except his wife and sisters and that there was no body to look after his properties after his death, soni bai pleaded adoption of sanjay kumar on 13.4.1975, which was reduced into writing on 13.4.1981. the executor yadvinder thakur referred to partition deed dated 3.4.1986 which records sanjay kumar as adopted son of late seth bhagirath dass and thus, contradicted the contents of the will. further in his reply to cm no. 2565 cii of 1993, he took a stand that sanjay kumar was adopted son of late seth bhagirath dass and some of the properties mentioned in the will had fallen to his share which he had retransferred by way of a gift. plea of partition being against the contents of the will and provision having been made for residence and maintenance of his wife, conduct of yadvinder thakur in pleading untrue facts was not appreciable.(iv) plea of the executor that while deciding application under section 301, the court could not determine title of the property, it was held that while deciding the conduct of the executor, all necessary facts could be seen. judgment of calcutta high court in the goods of nanda lal sett, deceased, : air 1955 calcutta 88, was distinguished.(v) with regard to plea of om parkash aggarwal being tenant under soni bai, it was observed that the rent was insignificant and even that amount was not accounted for. similarly, income from land in village kapat was not accounted for. dispensary had been closed. these facts made out a case for removing yadvinder thakur from the office of executor.(vi) dealing with the contention that a suit was earlier filed by uma aggarwal under section 92 cpc which was dismissed, it was held that if petition under section 301 was maintainable, earlier resort to remedy under section 92 cpc was no bar. judgment in maganlal parikshawala v. samson shalom : air 1938 allahabad 197 was held to be distinguishable. in that case, section 301 was held not to be applicable as there was no executor in the will in that case.(vii) as regards functioning of yadvinder thakur as trustee and also functioning of other trustees, it was observed that exercise of power of removal of executor under section 301 would include power of removing trustees if the trustees were inter-connected with the functioning of executor.(viii) dealing with the question of executor having ceased to have that capacity, it was observed that functions of the executor were not over in the present case. the executor had to consolidate the cc trust properties and utilize the properties for the trust. judgments in the goods of sarnath sanyal v. hrisikesh sanyal air 1949 all. 93 and patel vrajlal bhagwandas v. patel jamnadas tribhovandas and ors. air 1956 surashtra 51 were held to be distinguishable.(ix) as per will, number of trustees could not be less than three but the trust was being run by yadvinder thakur and om parkash aggarwal. no accounts had been rendered. they had disowned ownership of the trust in the bagichi. no effort was made to take care of the income of the property. dispensary had been closed.(x) as regards objection that advocate alone could not pursue the application, it was observed that litigation was for benefit of general public and same could not be dismissed on technical grounds.(xi) the executor in the will was required to execute the will as well as to administer the estate of the deceased.14. lpa no. 112 of 2006 has been filed by tara chand sharma and dr. vibhakar sharma who are stated to have been substituted as trustees, while lpa no. 132 of 2006 has been filed by yadvinder thakur and lpa no. 134 of 2006 has been filed by om parkash aggarwal.15. we have heard s/shri j.c. verma, senior advocate, appearing for the appellant in lpa no. 134 of 2006, h.s. giani, advocate for appellant in lpa no. 132 of 2006 and r.k. chhibbar, senior advocate in his capacity mentioned earlier and perused the record.16. shri verma submits that conduct of shanti devi, applicant in cm no. 2565 cii of 1993 was not above board. she had filed suit on 3.6.1990 under section 92 cpc which was dismissed for non- prosecution in the year 1996 and the same operated as res judicata. application was to avoid handing over of possession of kothi no. 31, sector 9a, chandigarh in spite of order granting probate. c.m. no. 1357-cii-2001 was filed purporting to be on behalf of shanti devi. shanti devi had already died and no legal heir had been substituted. the said application was not supported by any documents or affidavit in support of the allegations. uma aggarwal who filed probate application gave her statement in her replication that she had no objection to yadvinder thakur obtaining probate of the will. appearing as pw2, she admitted that soni bai was collecting and keeping the rent. she admitted that she did not attend the kirya ceremony of late seth bhagirath dass. she denied knowledge about family partition. she also admitted that soni bai had income from the bagichi (which literally means garden but which is in fact a house). she also admitted that house of late seth bhagirath dass at chandigarh was in possession of her mother-in-law and herself as trustee and that she was willing to hand over possession to the executor. she filed lpa no. 559 of 1991 and statement was made that grievance in the lpa was not to relief granted in main probate application but to orders passed in miscellaneous applications allowing possession to be taken over by executor. she took stand that possession was not with her but with her mother-in-law which was rejected. shanti devi had earlier filed suit for removal of the executor with a view to get over the order passed in probate proceedings and to avoid handing over possession. the suit was pending when application cm no. 2565 cii of 1993 for removal of executor was filed and the said application was barred under section 10 cpc. shanti devi was a witness to the gift deed executed by sanjay kumar. shanti devi and uma aggarwal obstructed taking over of possession by the executor. details of the rent from the property were duly given. the tenants were old tenants and the amount of rent received was insignificant. no details were available of the property in hoshiarpur district. all allegations in the application were duly replied by yadvinder thakur vide his reply dated 30.5.1995. the trustees deposited a sum of rs. 6 lacs to save the property. no probate was actually granted. after grant of probate, the court was functus officio and application being cm no. 2565 cii of 1993 was not maintainable. he relied upon following judgments:1. maganlal to submit that aparikshawala v. trustee could be samson removed only undershalom section 92 cpc and not under section 301: 1938 allahabad 197 of the succession act.2. s.b ranjit to submit that powersingh and to remove an anr. v. executor could bes.santokh exercised only if asingh bais and proper case was made ors. out and only if the1950 plr 313 application is bonafide. 3. chiranjilal to submit thatshrilal goenka probate court cannot v. jasjit singh decide question ofand ors. title and even natural heir cannot question: (1993) 2 scc 507 the probate which is conclusive as to due execution and validity of will.4. in the good of to submit that title tomrs. lydia and property is not ors. v. mrs. affected by the grantelizabeth of probate. egbert, : air 1952 all 543 5. jinder kaur to submit that ifand ors. v. legal heirs do notsarabjit singh seek to be bajaj and substituted, theyors. cannot question ex2003(2) plr 255 parte order. 6. vinoy kumar to submit thatv. state of up advocate has no right to file a petition in his: air 2001 sc 1739 own name and substitute himself for his client.17. shri giani submitted that the will was in favour of trust and the executor was trustee as per the trust deed. factum of adoption of sanjay kumar was mentioned by wife of the testator herself. cm no. 1357 cii of 2001 was unauthorized as the original applicant had died and legal representatives were not brought on record. trustee could not be termed as executor to invoke section 301 of 1925 act. this court could not be stated to be court of district judge. allegations of misconduct against the trustees were not substantiated. partition deed had been duly executed by testator late seth bhagirath dass, his wife and the adopted son. it had been duly registered and the same was never challenged. the applicant herself had frustrated working of the trust. sanjay kumar having returned the property by way of gift deed, plea of his adoption was irrelevant. no executor had been appointed in the will. only executive trustee had been named. in any case, the property having been bequeathed to the trust, the executor had no role. he relied on cit v. estate of v.l. ethiraj : (1979) 120 itr 271 (mad.) and amba parshad and anr. v. lt. james skinner air 1929 lahore 600 to submit that executorship comes to an end on obtaining a probate.18. shri r.k. chhibbar, senior advocate who was representing the respondents-applicants in cm nos. 2565 cii of 1993 and cm no. 1357 cii of 2001 stated that even if the applicant died and he did not receive any instructions, he has continued to appear as member of general public who is the beneficiary under the will. he relied on judgment of the privy council in letterstedt v. broers (1884) uk pc 1 to submit that trustee exists for beneficiaries. he also submitted that lpa was not competent as order of learned single judge was discretionary and did not amount to judgment. he relies on judgment of patna high court in basudeo narain singh v. prayag dutt narain shahi : air 1962 patna 69. he also relies on judgment of this court in sakow indusxtries v. sbi 1976 plr 783 and judgment of honble supreme court in shanti kumar v. home insurance co. : air 1974 sc 1719 about maintainability of lpa against order of single judge which may not be held to be judgment. reliance has also been placed on l. janakirama iyer and ors. v. p.m. nilakanta iyer and ors. : air 1962 sc 633, to submit that under section 48 of trust act, 1882, all trustees had to jointly act; judgment of this court in jarnail singh v. intzamia committee 1972 plr 654, to submit that under section 14 of the trust act, trustees could not set up title adverse to the interest of beneficiary; judgment of honble supreme court in chiranjilal v. jasjit singh : 1993 (2) scc 507 to submit that under section 213 of the succession act, role of probate court is only of deciding of factum of will and not to decide the question of title. he supported the findings recorded by learned single judge and opposed the submissions made on behalf of the appellants.19. the questions which arise for consideration in this appeal are:(i) whether lpa against order of single judge is maintainable?(ii) whether application under section 301 of the 1925 act was maintainable?(iii) whether there are grounds justifying order of removal of executor and the trustees and passing further consequential order?20. we proceed to deal with the said questions.re: (i)21. objection raised by shri chhibbar that no appeal could lie against order of removal of executor under section 301 of the succession act, cannot be accepted. no doubt, in judgment of patna high court in basudeo narain (supra), such a view was expressed by holding that the power of removal of executor being discretionary, such an order was not judgment, we are unable to subscribe to the view that order under section 301 is discretionary in the sense that no adjudication is involved. such an order requires recording a finding of misconduct. other judgments relied upon by shri chhibbar on maintainability of lpa are distinguishable. in shah babulal khimji v. jayaben d. kania and anr. : air 1981 sc 1786, it has been held that when an order which goes to the root of action, is passed against a party, it amounts to judgment (paras 101, 106). it was also held that word judgment in letters patent had wider meaning than it had under cpc. even an interlocutory order may be judgment which decides matters of moment or affect vital and valuable rights (para 115). objection raised by shri chhibbar as to maintainability of the appeal has, thus, to be over-ruled. question (i) is answered against the respondent and in favour of the appellants.re: (ii)22. section 301 of the 1925 act is as under:301. removal of executor 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.section 92 cpc is as under:92. public charities: (1) in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the advocate-general, or two or more persons having an interest in the trust and having obtained the leave of the court may institute a suit, whether contentious or not, in the principal civil court of original jurisdiction or in any other court empowered in that behalf by the state government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree?(a) removing any trustee;(b) appointing a new trustee;(c) vesting any property in a trustee;(cc) directing a trustee who has bee removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;(d) directing accounts and inquires;(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;(g) settling a scheme; or(h) granting such further or other relief as the nature of the case may require.(2) save as provided by the religious endowments act, 1863 (20 of 1863) or by any corresponding law in force in the territories which, immediately before the 1st november, 1956, were comprised in part b states, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that subsection.(3) the court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy press in one or more the following circumstances, namely:?(a) where the original purposes of the trust, in whole or in part,?(i) have been, as far as may be, fulfilled; or(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust;(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or(ii) ceased, as being useless or harmful to the community, or(iii) ceased to be, in law, charitable, or(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.23. a plain reading of section 301 shows that an executor can be removed by this court. remedy under section 92 cpc cannot, in any manner, affect jurisdiction of this court. it is also well settled that a court of record always has jurisdiction unless shown otherwise. reference may be made to judgment of the honble supreme court in naresh shridhar mirajkar and ors. v. state of maharashtra and anr. : air 1967 sc 1, para 59.24. there is no force in the contention that order in proceedings under section 92 cpc operated as res judicata or is a bar to proceedings under section 301 of the succession act. the said proceedings were not pending before court competent to try application for removal of executor nor order dismissing application under section 92 cpc for non prosecution could be said to be by court having jurisdiction to grant relief sought under section 301 of the succession act so as to operate as res judicata.25. thus, contention of shri verma that proceedings under section 301 of the succession act were barred on the principle of sub judice under section 10 cpc or on the principle of res judicata under section 11 cpc, cannot be accepted.26. as regards the plea that invoking of jurisdiction has to be bonafide, this relates to exercise and not existence of jurisdiction.27. contention of shri giani that will was in favour of trust and the executor was acting in his capacity as a trustee and was not, therefore, covered under section 301 of the succession act, can also not be accepted. merely because executor is trustee also is not enough to exclude section 301. it can also not be held that an executor having applied for probate, his role comes to an end. judgments in v.l. ethiraj and amba parshad (supra) are distinguishable. in the present case, role of yadvinder thakur as executor had not come to an end, as rightly held by learned single judge. yadvinder thakur himself made an application in probate proceedings for being joined as co-applicant in his capacity as executor. order dated 16.4.1991 granting probate clearly mentioned that yadvinder thakur was the executor and he was transposed as petitioner by order dated 18.5.1990 in that capacity. mere fact that he was also to act as trustee and the property was bequeathed in favour of the trust itself did not affect the position of yadvinder thakur as being executor. yadvinder thakur is estopped from pleading that he was not the executor under the will. the application duly filed under section 301 of the succession act was not liable to be dismissed merely because original applicant had died and his legal representatives were not brought on record.28. the question of existence of power under section 301 has, thus, to be answered in favour of the applicant and against the appellants.re:(iii)29. question which survives is whether jurisdiction under section 301 ought to have been exercised. no doubt any person coming to court has to come with clean hands and his conduct has to be above board. at the same time, while dealing with an application alleging misconduct of an executor, the court cannot shut eyes to conduct of executor and allow an executor to continue, irrespective of his working to the detriment of the property bequeathed merely because complainants conduct was not above board. the court has to take an overall view of the matter. we are in agreement with the view taken by the learned single judge that when the will specifically mentions that the testator was not survived by any issue and that he owned properties including one described as bagichi, bagh rama nand, amritsar, the very fact of pleading directly or indirectly factum of adoption of a son by the testator will not be conduct which will be above board. similarly, even after death of widow of late seth bhagirath das, there is nothing to show that the property was put to use for purposes indicated in the will. thus, conduct of an executor was not above board and he rendered himself liable to be removed. we are also in agreement with the learned single judge that appointment of other trustees to which the executor was a party, has to be annulled. conduct of om parkash aggarwal in setting up tenancy and continuing in possession of the trust for his personal benefit and there being hardly tangible account of use of the property for the last 20 years, sufficient grounds are made out for exercise of power under section 301. contention of shri verma that application under section 301 of the succession act was moved only to avoid handing over of possession, can also not be accepted. the possession stands handed over and unless finding of learned single judge about the misconduct of the appellants can be set aside, there is no ground to reject the application. conduct of the appellants cannot be held to be good merely because conduct of the applicant was not above board. the real issue is whether the will of the testator was being given effect to and whether the executor instead of discharging his duty as per will was abusing his position to divert the property of the testator for his personal benefit. the finding of learned single judge that as against clear statement in the will that the testator had no issue, plea of testator having adopted a son was raised apart from plea of partition which affected the title of the testator to the bequeathed property and the fact that one of the trustees was allowed to plead his own tenancy on the property bequeathed for the benefit of the public have not been shown, in any manner, to be erroneous, which by itself were sufficient grounds justifying removal of an executor, acting in dual capacity as executor and the trustee. continuance of substituted trustees is inter-connected to finding of conduct of executor and chief trustee. the removal of executor was clearly called for under section 301 and removal of other appellants was consequential being inter-connected to the functioning of the executor. there is, thus, no ground to interfere with the finding recorded by the learned single judge. the question is answered against the appellants and in favour of the respondents.30. the appeals are, thus, liable to be dismissed as far as the appellants are concerned. we order accordingly.31. however, one consequential matter remains to be considered. learned single judge had made arrangement to substitute the appellants but the chief trustee appointed in the impugned order expressed inability to function and was allowed to withdraw from the office of executive managing trustee vide order of this court dated 11.9.2006. vide order dated 23.8.2007,it was directed that the appellants will not deal with the property of the trust in any manner without permission of this court. thereafter, on 26.5.2008, a senior advocate of this court was substituted as trustee in place of sh. tara chand sharma but on 1.8.2008, the said order was also withdrawn on the request of senior advocate who was so appointed. there has been an interim order of stay of operation of impugned judgment. in view of this, question of suitable arrangement for making the will operative and functional, ought to be decided afresh. the matter has to be remanded to learned single judge for this purpose. we order accordingly. to consider suitable arrangement, since properties are either in the state of punjab or at chandigarh, notice ought to be issued to advocate general, punjab and senior standing counsel, ut, chandigarh, to suggest appropriate mechanism.32. till mechanism is worked out or till any further order is passed by learned single judge, status quo will continue.list for further directions before learned single judge on 26.10.2009.