Removal of executor by filing petition.

The purported application is claimed to have been filed under section 301 of the Indian Succession Act by a beneficiary under a will for the removal of an executor appointed under the terms of the will. The question for consideration is one of procedure to be followed on the Original Side of this Court the applicant herein contending that section 301 authorises him to move this Court for the removal of an executor by means of an application as distinct from an original petition. On the other hand, the office takes the view, based upon Order 2, rule 1 and Order 14, rule 1 of the Rules of the High Court, 1956, that when a prayer is made under section 301 of the Indian Succession Act, it should be made in the form of a petition only and not by an application, because it constitutes commencement of fresh proceedings in relation to the subject-matter of the request.

Mr. Anantarama Mudaliar, learned Counsel for the applicant, strongly relies on the use of the word ‘Application ‘in section 301 of the Act and contends that whenever the statute contemplated a petition, it used the word ‘petition ‘and since the word ‘petition ‘is not present in section 301 and only the expression, ‘application ‘is present in this section, he is entitled to come by way of an application alone as distinct from an original petition for the purpose of a prayer which can be obtained under section 301 of the Act. It is necessary to refer to section 301. That section says:

"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."

Section 302 states:

"Where probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof."

Two other sections on which reliance was placed by the learned Counsel are sections 192 and 193.

Section 192 (1) is:

"If any person dies leaving property, movable or immovable, any person claiming a right by succession thereto, or to any portion thereof, may make application to the District Judge of the District where any part of the property is found or situate for relief, either after actual possession has been taken by another person, or when forcible means of seizing possession are apprehended.

“Section 193 states:

"The Disttict Judge to whom such application is made shall, in the first place, examine the applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies, is really entitled and is likely to be materially prejudiced if left to the oridinary remedy of a suit, and that the application is made bona fide.”

The question for consideration is whether the expression, ‘application ‘occurring in these sections has been used in the sense contended for by the learned Counsel, namely, as distinct and opposed to a petition. In my opinion, the expression, ‘application' has not been used in the sense contended for by the applicant in these sections. Sections 270 and 276 throw a flood of light on this point. Section 270 of the Act provides:

“Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, movable or immovable, with