An executor who fails to comply with statutory provisions, does not make over or assent to legacy within reasonable time, and misappropriates or uses funds without authority is liable to be removed under section 301 of the Succession Act.

1. G.A. No. 3499 of 2006 is an application for removal of the executor under section 301 of the Succession Act, 1925 with an alternative prayer for revocation of the grant of probate. The elder brother applicant does not press the alternative prayer for revocation of the grant. G.A.No.1121 of 2008 is by the same applicant complaining of illegal conduct of the executor's part in connection with the creation of a tenancy in respect of a flat belonging to the estate.

2. The Will was made in March 1987. The testator died in August, 2000. The executor applied for grant of probate in 2001 to which the elder brother applicant consented. Probate was granted on August 29, 2002. The assets forming part of the estate include five immovable properties. The principal immovable property is the land and building at 7A, Shyamananda Road, Kolkata-700025. It is the admitted position that this property is a four-storied building including the ground floor and is made up of what is described as the front portion and another described as the rear portion, the two being separated by the staircase running down the middle. There are three other properties mentioned in the affidavit of assets of which the testator was the one-third undivided owner. These properties are at 1A, Khetradas Lane, 25, Ganesh Chandra Avenue; and, P28, Benaras Road. These three properties fetch substantial monthly rent and the testator was entitled to the undivided l/3rd share thereof. The fifth immovable property mentioned in the affidavit of assets is a land and structure at Agarpara which also appears to be rented.

Clause 13(i)(a) of the Will provides that younger son and executor Ajit would have the front portion of the Shyamananda Road of the property which comprises of "the ground-floor, first-floor, second-floor, third-floor and the roof thereon shown in the plan annexed (to the Will) and marked X..."

3. CLAUSE 13(ii)(a) of the Will records that elder son Ranjit would be entitled to the northern or back portion of the Shyamananda Road property including "the ground floor, first floor, second floor and the roof thereon shown in the plan annexed (to the Will) and marked 'X'... "The third floor is missed out in the reference but, despite some initial skirmish, the executor accepts that the entirety of the rear portion has been bequeathed to his elder brother.

4. ELSEWHERE in the Will both sons have been given equal share in the other immovable properties and there is no dispute in such regard. Clause 13(v) of the Will records that the testator was at the lime of execution of the Will a 50% partner in a firm. The testator desired that younger son Ajit who was the other partner in the firm would become the absolute owner of the business carried on by the partnership firm "subject however to the obligation and liability to pay my son Ranjit Kumar Paul out of my said share in the said business a lumpsum amounting to Rs. 1,00,000/-.......such payment is to be made within a year from date of the grant of the probate." The clause also provided that if the payment was not made within the time envisaged, the sum or the outstanding balance would carry interest at the rate of 12% per annum from the date of default.

The application for removal of the executor was made in the year 2006. The principal grievances of the elder brother are that the executor did not comply with the statutory provisions, that he continued to be in charge and control of the estate and properties without taking any steps to make over the same to the legatees and that he misappropriated or used funds without any authority. During the pendency of the application for removal of the executor, the elder brother brought the other application on the ground that the executor was about to induct a person in the rear portion of the Shyamananda Road property. The insinuation was that the tenant was sought to be inducted at a nominal rent against an undisclosed upfront cash consideration received by the executor.