Mootham, J.:— The applicant applies under section 301 of the Indian Succession Act for the removal of one Hrishikesh Sanyal from his office as executor of the will of the late Sarnath Sanyal. Sarnath Sanyal died in the year 1931 leaving a will whereof he appointed Hrishikesh Sanyal to be the sole executor. The will was not proved in court, but it is not in dispute that Hrishikesh Sanyal entered upon his duties as executor and as such proceeded to administer the estate.
[His Lordship set out the sixth, eighth and tenth clauses of the will.]
Hrishikesh Sanyal is said not to have complied, or not fully to have complied, with the obligations imposed on him by these clauses, and the question which arises is whether Hrishikesh Sanyal, as regards the execution of such obligations, held the character of executor or that of trustee. The answer to this question does not depend upon the words used in the will for the latter may create a trust of which the executor, although described as such, is in law the trustee. The duties of an executor in general terms are to collect the assets of the deceased, to pay his debts and the funeral and testamentary expenses and thereafter to, make over the residue of the estate to the person or persons entitled thereto under the will. Where the testator intends to create a trust of the whole or part of his property his will, if properly drawn, will direct the executor, after performing the ordinary-duties of administration, to make over the estate or such part thereof as the testator indicates to a trustee or trustees to be held by them upon such trusts as are set out in the will. The will may not however be properly drawn and may contain no specific reference to a trust, yet if it is clearly the intention of the testator that the whole or part of his estate shall not be immediately distributed but be retained by his execution and the income thereof be paid to certain persons or institutions, then in law a trust is created and the executor holds the property as a trustee on behalf of the persons beneficially entitled.
I am clearly of opinion that in this case Sarnath Sauyal's will created a trust, and that upon completion of the ordinary duties of administration Hrishikesh Sanyal lost his character of executor, and thereafter held the residue of the testator's property as a trustee upon the trusts set out, inter alia, in clauses (6), (8) and (10) of the will.
If this be so it follows that the remedy open to the petitioner in the present case is to apply for the removal of the trustee-under section 71 of the Indian Trusts Act. The present application under section 301 of the Indian Succession Act is, in my opinion, misconceived, and on that ground I am of opinion that the application should be dismissed with costs.
Harish Chandra, J.:— This is an application of Madhu Sudan Bagchi under section 301 of the Indian Succession Act, 1925 (Act XXXIX of 25) for the removal of opposite party 1, Hrishkesh Sanyal, from the office of executor with respect to the estate of his father, the late Sarnath Sanyal who died in October, 1931, leaving a will dated the 13th of September, 1931, in which he had appointed opposite party 1 as executor. No probate was obtained by opposite party 1 with respect to that will. But, admittedly, he has been in charge of the property. Opposite parties 2 and 3 are the minor brothers of the applicant and opposite party 4 is their guardian. As they did not join in the application they have been arrayed as opposite parties 2 to 4. They have not put in appearance and apparently do not contest the application which has been contested by opposite party 1 alone.
The late Sarnath Sanyal left two sons, Hrishikesh Sanyal opposite party 1, and Satyendranath Sanyal, and three daughters, namely Srimati Sarjoo Bala Devi, Srimati Shu Kuroari Devi and Srimati Lalana Bala Devi. By his will Sarnath Sanyal disinherited his younger son, Satyendranath Sanyal, who had not married and lived separately from him and, as stated in the will, had squandered much of the testator's money and had not been obedient to him. He, however, permitted him to live in his residential house if he so wished and if he also paid back the money which he had borrowed from the testator he was to be paid a sum of Rs. 15 per mensem 1 during his lifetime so long as he lived in the testator's residential house. The testator, in paragraph 5 of his will, also, gave the right to live in his house during their lifetime to his eldest daughter, Srimati Sarjoo Bala Devi and his youngest daughter. Srimati Lalana Bala Devi and fixed an allowance of Rs. 15 each per mensem for them so long as they lived in his house.
In the sixth paragraph of the will he says that his second daughter, Srimati Shu Kumari. Devi, was living in his house with her three minor sons and two minor daughters. He allowed her to live in his house with her children and fixed an allowance of Rs. 50 per mensem for her till her sons attained majority and her daughters were married. He also provided that she shall receive an amount of saving from the income of property, if any for her daughters' marriage. After her sons had attained majority and her daughters had been married the allowance was to be reduced to Rs. 15 per mensem in case she still continued to live in his house.
In the eighth paragraph of the will he also gave to his widowed daughter-in-law, Srimati. Usha Bala Devi, the right to live in the house and to receive an allowance of Rs. 15 per mensem throughout her life.
In paragraph nine of the will he made provision for certain expenditure to be incurred over his funeral and for the celebration of the Sradh and the Chaturthi Sradh ceremonies. He also provided that the cost of taking out probate was to be paid from his estate.
In the tenth paragraph of the will be charged his eldest son, Hrishikesh Sanyal, opposite party 1, with the payment; of the monthly allowances fixed by him, maintenance of his properties, payment of taxes, etc. and the carrying out of repairs to the buildings. The balance of the income was to be utilised by him for himself. He charged all his property with the payment of the allowances fixed by him and directed opposite party 1 not to “mortgage or sell” the property. In case a son was born to him, he would, if he survived have “the absolute right to my estate”. In the absence of any male child to his two sons, opposite party 1 was authorised “to dispose of the said properties in the way he thinks proper either by giving it to some charitable purpose or by giving it to my grand children (daughter's sons) adding that “this shall not operate during the lifetime of children”.
The applicant has made various allegations against opposite party 1 of breach of trust and his contention is that he is not a fit person to continue to hold the office of executor of tine estate of his deceased father. The application is strongly opposed by opposite party 1, who has filed a counter affidavit in answer to the affidavit filed by the applicant in support of his application.
[His Lordship, having considered certain preliminary objections raised by the opposite parties as to the right of the petitioner to maintain the present application, proceeded as follows:]
It seems obvious that a person cannot become an executor or continue as such merely because he has been so described in a will. In the case of lagan Maganlal Parikshawala…Applicant; v. Samson Shalom…Opposite Party. it appeal's that the will named three persons as executors. It, however, appeared that the will had set up a permanent trust and that the position of these persons named in the will was in fact that of trustees. An application for their removal under section 301 of Indian Succession Act was, therefore, dismissed.
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 section 291 of the Indian 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 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.
The leading case on the subject is that of Taran Singh Hazari v. Ram Ratan Tewari. One Gauri Debi had been appointed executrix of the will, of the minor's father Shib Lal Tewari. She continued to manage the property of the minor for some time and then applied to the Court of Wards to take over the estate. The Court of Wards took over the estate and subsequently brought a suit on behalf of their ward against the defendant Taran Singh to recover from him the amount due on a mortgage bond executed by him in favour of Gauri Debi as guardian of the minor. One of the defendant's contentions was that as Gauri Debi wasi the executrix appointed under the will and had taken out probate of the will she was the only person legally entitled to sue. It was held that Gauri Debi had ceased to manage sue property as executrix of the will of the deceased Shib Lal Tewari and that she was managing it as manager of the infant Ram Ratan Tewari before she applied to the Court of Wards to take over the estate and that, therefore, the Court of Wards had full authority to act under the provisions of the Court of Wards Act and to take possession of the property as guardian of the minor. Their Lordships have discussed the duties of an executor of a will and the following is reproduced from the judgment:—
“The will itself has not been translated, but it is not disputed on behalf of the plaintiff that Gauri Debi was appointed executrix under it. There is a further clause that she being executrix, should remain in charge of the property during the minority of Ram Ratan Tewari. On those terms in the will the argument has been advanced that Gauri Debi having once taken out probate of the will and the estate of the deceased having vested in her, she could not divest herself of the estate, nor could sire hand over the property to the Court of Wards on behalf of the minor till the terms of the will had been fulfilled and the minor had attained majority; she was therefore the only person who could sue to recover the debt in suit. It has also been contended that the Court of Wards bad no power to proceed under the provisions of sections 6, 27 and 35 of the Court of Wards Act to take over the estate as the property of the minor.
“We have heard the learned vakil at great length in support of his contentions, but we are unable to accept them as valid. No doubt, after Gauri Debi had taken out probate of the will, the estate of the deceased would under the law vest in her as executrix for the purpose of carrying out her duties as such, and those duties would be generally to collect the debts due to the estate to pay the debts due from the estate, to pay off legacies and other bequests, etc., and then to make over the property to the residuary legatee. It would be no part of her duties as executrix to manage the property for the benefit of the minor till he attained majority. The position and duties of an executor in this country are not very well understood, and considerable confusion exists as to duties of the executor in administering the estate. The duties of the executor are to administer the estate of the deceased only so far and so long as to enable him to carry out the terms of the will of which he is executor. After the property has ceased to be the estate of the deceased and has become the property of the residuary legatee under the will, the executor as such has no authority to manage the estate on his behalf. Under the will the beneficial interest in the property vested in the minor as soon as the testator died, and Gauri Debi was appointed as executrix, to manage the property till the minor attained majority. In describing her as executrix for this purpose there has in our opinion been a confusion or misinterpretation of the term “executrix”. What was intended appears to us to be that she should as executrix administer the estate and see that the terms of the will were carried out and this being done, that she should manage the property covered by the will not as executrix under the will and administrix of the deceased's estate, but as manager for the minor till he attained majority. The intention clearly was to appoint her to be manager of the minor's estate. We think that in interpreting the will we must have regard not merely to the words used but to the evident intention of the testator.
“It has been suggested that she could not as executrix make over the property to herself as manager of the infant without an administration suit or without the will being revoked. We cannot accept this contention as correct. It is opposed to the ordinary practice and there is no authority to support it.
“We hold, therefore that Gauri Debi had ceased to manage the property as executrix of the will of the deceased Shib Nath Tewari and that she was managing it as manager of the infant Ram Ratan Tewari before she applied to the Court of Wards to take over the estate. We accordingly hold that the Court of Wards had full authority to act under the provisions of sections 6, 27 and 35 of the Court of Wards Act, 1879, and to take possession of the property as guardian of the minor. And such being the case, the manager under the Court of Wards had frill power, to institute this suit, and the objection raised disputing his power fails”.
This case was followed in another Calcutta case of Shanker Nath Mukerji v. Biddutlata Debi. In that case the testatrix had died more than thirty-five years ago and it appeared that the estate had been fully administered. An application was made for the probate of the will and it was contended on behalf of the applicant that “there were certain debts and legacies unpaid, and that it was necessary to grant administration to manage the properties dedicated for deba sheba provided for in the will of Bhayaharini.”
In dealing with the question of deba sheba Chatterji, J. by whom the case was decided observed:—
“The last point relates to deba sheba and the contention is that the sheba is to be carried on by the executors. This contention was raised in smother appeal to this Court arising out of the application made by Biddutlata for revocation of the probate granted to Girindra and Harendra Nath Mooterji. Mr. Justice Coxe in disposing of that contention observed as follows:—
‘As regards the idol it is argued that the sheba has to be performed for ever and that consequently the estate cannot have been completely administered. It appears to us that this argument amounts to redactio ad absurdum’.”
A quotation from Lewin on Trusts occurring in the judgment in the case of Dhanabakkiyammal v. Thangavcha Mudaliar is reproduced below:—
“An executor is regarded in some sense as a trustee, but he cannot like a trustee, be discharged, even by the Court from his exccutorship. When the funeral and testamentary expenses, debts, and legacies have been satisfied, and the surplus has been invested upon the trusts of the will, the executor then drops that character and becomes a trustee in the proper sense, and may then be discharged from the office like any other trustee”.
The duties of an executor and a trustee are quite different. But an executor may also be a trustee under a will appointing him executor and creating the trust and in this connection the following is reproduced from the judgment in the case of Hara Commar Sircar v. Doorgamani Dasi:—
“The learned pleader for the respondent contends that an executor is in fact a trustee, and that as such a court of equity can either grant or refuse him probate at its discretion. We think, however, that this contention is not sound. An executor may no doubt be regarded as occupying the position of a trustee for the purpose of administering the estate, and he may also be a trustee-under a will appointing him executor and creating the trust, but that is quite a different matter from saying that an executor qua executor is a trustee. The true position, powers and duties of an executor are essentially different from those of a trustee”.
Applying these principles to the present case my view is that the estate having been administered, funeral ceremonies of the deceased having been long over and the daughters of Srimati Shukumari Devi having been married, the remaining duties of opposite party are more of a trustee than of an executor. He is to look after the property, pay allowances to whomesoever they may be due, and in the absence of any male-child to the testator's sons to dispose of the property in the manner provided by the will. As he is no longer an executor an application for his removal under section 301 of the Indian Succession Act does not lie.
In view of this finding it is unnecessary to consider the other issues and I would dismiss the application with costs.
Application dismissed.