Bhaskar Bhattacharya, J.

This appeal is at the instance of an executor in a proceeding for grant of Probate where the Probate has already been granted and is directed against an order dated 10th December, 2010 passed by a learned Single Judge of this Court by which His Lordship disposed of two applications, one filed by the executor for direction under Section 302 of the Indian Succession Act, and the other, filed by the legatees for removal of the executor. By the order impugned in this appeal, the learned Single Judge was of the view that although the conduct of the executor would warrant his immediate removal, a chance should be given to the executor to carry out the mandate of the testator in respect of the particular item of the bequest within a period of four weeks from the date of the order, and in default, liberty was given to the grandson/legatee of the testator to seek the immediate removal of the executor. The learned Single Judge directed the executor to give effect to that part of the bequest by which the testator bequeathed his tenancy right in respect of a property situated in Kolkata in favour of his grandson without unduly concerning himself with the consequence thereof. Being dissatisfied, the executor has come up with the present appeal and a cross-objection has been filed by the grandson/legatee against some of the findings.

The following facts are not in dispute:

a) The executor is a son of the executants of a joint and mutual Will dated 30th July, 2001. The subject-matter of the present proceedings is the bequest relating to the tenancy right in respect of the north-west ground floor flat at premises No. 10, Lower Rawdon Street, Calcutta- 700 020, which the father of the executor held as a monthly tenant under a trust. The Will stipulated that such tenancy should go to a grandson of the testators through another son. The Probate of the joint and mutual Will was granted to the executor on September 06, 2007.

b) The grandson/legatee, by filing AORC No. 1 of 2010, complained that the uncle/executor refused to implement the relevant provision of the Will and thus, prayed for removal of the executor and even for impounding the legacy of the executor and the executor’s share in the residuary bequest.

c) Clause 4.3 of the Will makes the relevant bequest:

“4.3. The tenancy right in the said Flat at No. 10, Lower Rawdon Street, Calcutta, shall stand bequeathed to our grandson Promod Kumar Jalan, son of our son Shree Gopal Jalan, subject to the condition that in case our younger son Om Prakash Jalan and his family consisting of his wife, son, daughter-in-law, daughter or his any other relative etc., who are presently residing at Hyderabad or elsewhere come to visit Calcutta on business or for any other work then they shall be entitled to stay in the said Flat without any hindrance or obstruction on the part of Promod Kumar Jalan or any other person/persons occupying the said Flat”.

d) According to the grandson/legatee, despite demands made by him to the executor, the latter has refused to give assent to such legacy in favour of the rightful legatee or to make over possession of the said flat to the legatee. The grandson claimed that the executor in his other role as the trustee of the landlord/trust was trying to surrender the tenancy to the landlord with a view to frustrate the bequest.

e) The grandson instituted a suit before the Alipore Civil Court in the year 2009 against the executor and the trustee of the landlord/trust seeking a declaration that he was entitled to the tenancy rights in respect of the flat and for perpetual injunction restraining the defendant and their agents from effecting surrender of the said flat to the landlord or preventing the plaintiff from taking possession thereof. A further injunction was prayed for restraining the defendant Nos. 2 to 4 in that suit from acting in a manner inconsistent with the plaintiff’s entitlement to the tenancy right and a decree for recovery