Executors of Will – Duties & their Removal

Saji Koduvath, Advocate, Kottayam.

The duties of an administrator of a will (to whom letters of administration have been granted) and an executor (who has been authorised, in the will, to execute) are to execute the will honouring the wishes of the testator to the extent possible. It also includes the administration of his estate. In the Goods of Sarnath Sanyal v. Hrishikesh, AIR 1949 All. 93, it was held, with respect to the duties of an executor, as under:

• “14. The duty of an executor is to execute the will and to administer the estate of the deceased. The duties of an administrator to whom letters of administration have been granted and the duties of an executor who has obtained probate of a will are much the same and S. 291, Succession Act, gives some clue as to what such duties are. Under that section every person to whom any grant of letters of administration is committed is required to give a bond with one or more sureties, ‘engaging for the due collection, getting in and administering the estate of the deceased.’ Thus the duties of an executor mainly are to collect, get in and administer the estate of the deceased and after this has been done and the estate has been settled his duties as executor are finished and if he is required to continue to be in charge of the property for the benefit of certain beneficiaries he ceases to be an executor and becomes a trustee of the property.” (Referred to in Shanti Devi v. Yadvinder Thakur, 2006 143 PLR 799; 2006 4 RCR(Civ) 504.)

In an application for probate or letter of administration, no right is asserted or claimed by the applicant, who applies for probate. The duty of an executor is moral and not legal. In Kamakhya Prasad Gupta v. Jibon Lal Gupta, 2010 3 GauLD 430; 2010 4 GauLJ 495, it is observed it as under:

• “The applicant, in such a case, only seeks recognition of the court to perform a duty, which the Will may have imposed on him. Nevertheless, probate or letter of administration, issued by a competent court, is conclusive proof of the legal character throughout the world. By his Will, the testator casts a duty on an executor as regards the administration of his estate and by an application for probate or letter of administration, the administrator merely seeks permission of the court to perform the duty so cast on him by the testator. Thus, in an application for probate or letter of administration, what the applicant seeks is recognition from a court of his status as an executor of the Will to perform the duty cast by or under the Will. This duty is moral and not legal. No law compels the applicant to file application for probate or letter of administration. It is with a view to discharge his moral obligation that a person applies for probate seeking recognition from the court of his status as executor of the Will.”

The Madras High Court, in S. Krishnaswami v. E Ramiah, AIR 1991 Mad 214, also stated that the duty of an executor was only moral and it was not legal, and that he was only seeking recognition from the Court to perform this duty. The decision reads as under:

• “77. In a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the Court to perform a duty. Probate or letter of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the Proceeding filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty. There is only a seeking or recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the Court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law.”

Though the afore-quoted portion of the Madras decision was approved by the Supreme Court in Krishna Kumar Sharma v. Rajesh Kumar Sharma, AIR 2009 SC 3247, it rejected the observation of the High Court that the application for grant of probate or letters of Administration was not covered by Article 137 of the Limitation Act.

• 137. Description of application: Any other application for which no period of limitation is provided elsewhere in the Division.
• Period of Limitation: Three years.
• Time from which period begins to run: When the right to apply accrues.

The Supreme Court held, in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1977 SC 282, (1977)1 SCR 996, as under:

• “22. The changed definition of the words ‘applicant’ and ‘application’ contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityananda Joshi’s case (Nityananda M. Joshi v. Life Insurance Corporation of India, (1970) 1 SCR 396, AIR 1970 SC 209) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (Town Municipal Council, Athani v. Presiding Officer Labour Court, Hubli (1970) 1 SCR 51, AIR 1969 SC 1335) where this Court construed Article 137 to be referable to application under the Civil Procedure Code. Article 137 includes petitions within the word ‘applications’. These petitions and applications can be under any special Act as in the present case.
• 23. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge bench of this Court in Athani Municipal Council case (supra) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. ……”  Quoted in Thounaojam v.  S Huidrom Dwijendra Singh, AIR 2020 Mani 1 and referred to in Kamakhya Prasad Gupta v. Jibon Lal Gupta, 2010 3 GauLD 430; 2010 4 GauLJ 495.

The decision in Kerala State Electricity Board is followed in Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008) 8 SCC 463 and in Krishan Kumar Sharma v. Rajesh Kumar Sharma (2009) 11 SCC 537.

In Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463, the Supreme Court held as under:

• “…… …. The crucial expression in the petition is “right to apply”. In view of what has been stated by this Court, Article 137 is clearly applicable to the petition for grant of letters of administration. As rightly observed by the High Court in such proceedings the application merely seeks recognition from the Court to perform a duty because of the nature of the proceedings it is a continuing right. The court then concluded that the right to apply for probate accrues on the date of death of the testator.”   (Quoted in Thounaojam v.  S Huidrom Dwijendra Singh, AIR 2020 Mani 1.)

When Right to Sue accrues for Probate?

In Balwant Singh v. Surbachan Singh (1993) 1 SCC 442, the Supreme Court observed as to right to sue for probate as under:

• “The period of limitation under Article 137 is three years, which commences from the date, when the right to apply accrues. The question, when such right to apply accrues, will depend on the facts and circumstances of each case“.

In Rajan v. State of Kerala AIR 1992 SC 1918, the Supreme Court observed that the right to apply for probate or letter of administration arise when difference arises between the parties as to the administration of the property of the deceased. It is held as under:

• “The right to apply accrues, when the difference arises or differences arise, as the case may be, between the parties. It is, thus, a question of fact to be determined in each case having regard to the facts of that case”. Quoted in Kamakhya Prasad Gupta v. Jibon Lal Gupta, 2010 3 GauLD 430; 2010 4 GauLJ 495,

The Bombay High Court, had observed in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani AIR 1983 Bom. 268, that when the right to apply accrues is unwarranted and that such an application is for the court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right, which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. But, in the light of the Supreme Court decisions in Kunvarjeet Khandpur (supra) and Krishan Kumar Sharma (supra), the observations in the Bombay decision, Vasudev Daulatram Sadarangani, does not stand correct.   Though the Apex Court also takes the view that a person merely seeks court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and that this right is a continuous right, which can be exercised at any time after the death of the deceased so long as the right to do so survives, it is held by the Apex Court that in view of  Article 137 of the Limitation Act, the right to apply for probate has to be taken as accrued on the date of the death of the deceased.

Condonation of Delay under Section 5 of the Limitation Act

After considering the Bombay-decision, Vasudev Daulatram Sadarangani (supra), and the aforementioned Supreme Court decisions it is held in Kamakhya Prasad Gupta v. Jibon Lal Gupta, 2010 3 GauLD 430; 2010 4 GauLJ 495, that though an application for probate is not made within 3 years from the date of death of the deceased, the delay could be condoned under Section 5 of the Limitation Act.

The Manipur High Court pointed out in Thounaojam v.  S Huidrom Dwijendra Singh, AIR 2020 Mani 1, that  if the application of probate had not been filed within 3 years from the date of death of the testator, application for condonation of delay could be filed under Section 5 of the Limitation Act.

Can an Executor be Removed? If so, When?

An executor of a will can be removed under Sec. 301 of the Succession Act.   In Shubh Karan Jalan v. Anandi Devi Jalan, 2011-1 CalLJ 77; 2011 1 Cal. HN 703, it is observed as under:

• 16. An executor of a Will is duty-bound to honour the wishes of the testator to the extent possible. This executor is obliged to give effect to the relevant bequest without unduly concerning himself with the consequence thereof. If the interest of an executor is in conflict with his duties as an executor, he has to keep the interest at bay and facilitate the bequest. On his failure to do so, the executor makes him liable to be removed from the position under Section 301 of the Succession Act. The personal interest of an executor cannot influence him in the discharge of his obligation under the Will. This mandate of law appears to have been lost on the executor. There is no prohibition in law for the executor to fulfil the relevant desire of the testator as embodied in the Will.

In Shanti Devi v. Yadvinder Thakur, 2006-143 PLR 799; 2006-4 RCR(Civ) 504, it is observed by the P&H High Court that if the trustees/executors have not rendered the accounts of the trust properties, they have rendered themselves liable for being removed from their offices as executor under Section 301 of the Act, 1925 and as trustees.

Read also

• Interpretation of Wills
• Interpretation of Inconsistent Clauses in a Will
• Executors of Will – Duties & their Removal
• A Witness to Hindu-Will will not Lose Benefit
• Will – Probate and Letters of Administration
• How to Write a Will? Requirements of a Valid Will
• Witnesses to the Will Need Not See the Execution of the Will
• How to Prove a Will, in Court? Is Presumption enough to Prove a Registered Will?
• When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?
• 30 Years Old Documents- No ‘Absolute’ Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Suit on Possessory Remedy, Other side Admits Possession; Should the Will be Proved?
• Presumption on Registered Documents & Truth of Contents
• Presumptions on Documents and Truth of Contents
• Parvathi Nairthi v. Laxmi Nairthy: Deprivation of Natural Heirs Not Amount to Suspicious Circumstance; A Will is not Required to be Proved with Mathematical Accuracy; Unregistered Will is Valid.

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