1. This order will dispose of the Miscellaneous Petition filed in a pending probate Petition.

2. The Miscellaneous Petition seeks the removal of the first two Respondents, Dr Arjun Sahgal and Bharat Sahgal, the probate Petitioners, as executors a Will dated 30th September 2001 of one Malati Srivastav who died unmarried on 31st August 2005 with no lineal descendants. I have not found it necessary to examine the grounds of removal themselves. In the view that I have taken, and for the reasons that follow, I have held that the Miscellaneous Petition itself is not maintainable in its present form. I propose, however, to leave all contentions open to the Applicants for being taken in an appropriate proceeding unaffected by the present order. For convenience, I propose to refer to the Petitioners in the Miscellaneous Petition as “the Applicants” and the first two Respondents as “the Executors”.

3. There is no dispute that the two Executors are named as such in the Will in question. It is also well settled that an executor is a creation of the Will that appoints him, and that he holds office as an executor only because of his appointment as such in the Will. The appointment is personal. Dr. Saraf for the Respondents in the Miscellaneous Petition is correct in pointing out that the very definition of an executor under Section 2(c) means a person to whom execution of the last Will of a deceased person is by the Testator's appointment, “confided”. That word itself tells us of the personal nature of the investiture of an executor.

4. Before I turn to the application itself, it is perhaps best to have a quick look at some of the relevant provisions in the Indian Succession Act, 1925. Section 222 makes it quite clear that probate can only be granted to the executor appointed by the Will, and that this appointment may be express or by necessary implication. Sections 211 and 213 are relevant. They read thus:-

“211. Character and property of executor of administrator as such.-

(1) The executor or administrator, as the case may be, of a deceased person in his legal representative for all purposes, and all the property of the deceased person vests in him as such.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.”

“213. Right as executor or legatee when established.-

(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2) ... ...

5. Section 301 deals with the powers of a Court to remove an execution. That Section reads thus:

“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.”

6. It is necessary to note that in Section 301 there is, prima facie, a twin provision. The provision is not simpliciter for removal of an executor or an administrator. That power certainly exists, but it is coupled with a power which, in my reckoning, is more in the nature of an obligation or a duty to make provision for a successor. This is clear not only from the heading of the Section but also from the wording of the Section which gives the Court a power to remove a private executor or administrator and provide for succession of another person to that office. The reason is obvious. The law does not, I think, contemplate the kind of vacuum that would ensue if