1. In my order of 9th April 2018 I set out at some considerable length factual background to the matter, the question that arises and the applications that were then pending before me. Since that order of 9th April 2018 is fairly comprehensive, I will not restate the facts once again. That order should be read with this one, and will be treated as incorporated in this order for the purposes of the factual background and the identification of the issues.

2. However, the position has marginally altered since. For, Notice of Motion (L) No. 101 of 2018 filed by Ashita, Monica and Pooja for removal of Vasant Sardal, was allowed to be withdrawn on 25th April 2018.

3. What remains is this. There is first of all Notice of Motion No. 74 of 2015 filed by Vasant Narayan Sardal (“Sardal”) for recalling the order passed by Dr DY Chandrachud J (as he then was) on 30th July 2009 reinstating Behram Ardeshir (“Ardeshir”) as an executor after his renunciation. In view of the order that I propose to pass today removing Sardal as an executor — my reasons follow — Mr Jeejeebhoy for Ardeshir states that Ardeshir will not continue and does not desire to continue as an executor. Ardeshir is present in Court. This will render Sardal’s Notice of Motion No. 74 of 2015 infructuous. That Notice of Motion sought a reversion to a prior state of affairs where Ardeshir had renounced executorship and Sardal continued alone.

4. In any case, I believe Sardal’s application would have had to be allowed even otherwise because the order of 30th July 2009 does not note Section 230 of the Indian Succession Act 1925 (“ISA”) which reads thus:

“230. Form and effect of renunciation of executorship. — The renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the Will appointing him executor.

(Emphasis added)

5. This places a complete and total prohibition on an executor who has made a renouncement from ever thereafter seeking probate, i.e fulfilling his primary duty as an executor. Indeed, the emphasis is on the words “when made” (as opposed to ‘when accepted’) and the words “from ever thereafter applying for probate”. There is no ambiguity about these words at all. The reliance in the decision of 30th July 2009 on the decision of Rangnekar J in In Re: Manchersha Pestonji, 65 ILR 172 (Bom). was, in my view, inapt. The reason is plain. Rangnekar J was not concerned with the reinstatement of an executor who had renounced. He was concerned with the reinstatement of an administrator, a very different thing. The argument before Rangnekar J was that an administrator and an executor stood at par. Rangnekar J did notice Section 230 of the Indian Succession Act 1925, but held that this had no application to an administrator, always someone appointed by a Court. This is to be carefully distinguished from the role of an executor who is never appointed by a Court but always only by a testamentary instrument. This is in fact the rationale for Section 230, and this why there is no corresponding section in regard to an administrator.

6. In fact, In Re: Manchersha Pestonji is actually against the proposition that was advanced on 30th July 2009. It said that an administrator could be re-appointed; it did not say that an executor could — that would have been in the teeth of Section 230 and entirely wrong. Thus, In Re: Manchersha Pestonji could not have been invoked in support of the very proposition it rejected or, at any rate, did not accept. The order of 30th July 2009 is, therefore, not the correct position in law.

7. The irrevocability of an executor’s renunciation is not to be taken lightly. It is the conscious giving up (hence, ‘renunciation’) of a very solemn charge in the nature of a duty of an entrustment; and this is a special conferment on a named individual by a person now dead. An executor’s heirs cannot succeed to his position. He, and he alo