The court emphasized the importance of respecting the testatrix's wishes and the need for clear evidence of detrimental conduct to warrant the removal of an executor.

( 1 ) THIS petition is filed by two petitioners; under Section 301 of the Indian Succession Act (hereinafter referred to as 'the Act') for removing or suspending the respondent from the joint executorship of the will dated 12-10-1983 left by one Flora Swamidoss and to place the estate in the hands of the petitioners.

( 2 ) THE petitioners case putforth in the petition in brief is as hereunder: Miss. Flora Swamidoss has executed a will dated 12-10-1983 in respect of her assets and has appointed the petitioners and the respondent as the executors of her will. After the death of the testatrix the respondent took possession of all the moveables including gold jewels and silver and stainless steel articles, clothes, etc, without reference to the petitioners, put them in one room and locked that room and has thereby deprived access to the petitioner. The respondent and his wife took away gold jewels from one of the beneficiaries forcibly and are misusing them. The respondent has been himself managing the property of the deceased and is acting contrary to the wishes of the deceased. The respondent gave a very cheap funeral to the deceased and placed the body in corporation hearse in spite of protests of the petitioners and relatives. The respondent has removed many articles and jewels from the house of the deceased stealthily. He has also misappropriated the amount specifically meant for funeral expenses of the testatrix. As the respondent is acting contrary to the wishses of the testatrix he is not fit to be a joint executor of the will, as such he is liable to be removed as an executor.

( 3 ) THE respondent in his counter has denied the various allegations made in the petition. He has asserted that the deceased had provided a bank deposit of Rs. 4,490/- for funeral expenses, that he utilised that amount and certain other funds for conducting the funeral and subsequent ceremonies in a manner befitting the status and wishes of the testatrix, that he gave a first class funeral by engaging services of M/s. Snaize Brothers, who are the best known undertakers in Bangalore, that no corporation hearse or cheap treatment was given to the deceased as alleged by the petitioners and that he conducted all the ceremonies in accordance with the wishes of the testatrix. He has given a statement of the receipts and expenses to show that he has spent more than what had been provided by the deceased to meet the expenses. He has pleaded that as he is the sole beneficiary of all the moveables and other household assets of the deceased he had taken steps to keep them in his custody after making an inventory to the knowledge of the petitioners, that jewellery in his custody would be disposed of in accordance with the will after the completion of the probate proceedings or in accordance with the directions that, may be given by the competent court. According to him it is the petitioners who have been trying to dispossess him of the moveable with an ulterior motive and for that purpose they have given police complaints and that they are also collecting and appropriating the rents of the leased portion of the property of the deceased.

( 4 ) THE petitioners, in support of their petition, have examined the first petitioner as P. W. 1 and two other witnesses. The respondent has examined himself on his side.

( 5 ) THE learned Counsel for the respondent, during arguments, contended that as the will is still not probated this petition is not a maintainable under Section 213 of the Act. According to him the petitioners want to rely on the terms of the Will to contend that the respondent has acted against the wishes of the testatrix and that as such he is liable to be removed and that the, petitioners cannot rely on the terms of the will without the same having been probated. The sum and substance of the argument was that the contents of the Will cannot be looked into without the Will being probated and that as admittedly the Will is till not pro