JUDGMENT

Harish Chandra, J. - This is an application of Madhu Sudan Bagchi under S. 301, Succession Act, 1925 (Act XXXIX [39] of 1925), for the removal of opposite party 1 Hrishikesh Sanyal, from the office of executor with respect to the estate of his father, the late Sarnath Sanyal, who died in October 1931, leaving a will dated 13th September 1931, in which he had appointed opposite party 1 as executor. No probate was obtained by opposite party 1 with respect to that will. But, admittedly, he has been in charge of the property. Opposite parties 2 and 3 are the minor brothers of the applicant and opposite party 4 is their guardian. As they did not join in the application they have been arrayed as opposite parties 2 to 4. They have not put in appearance and apparently do not contest the application which has been contested by opposite party 1 alone.

2. The late Sarnath Sanyal left two sons, Hrishikesh Sanyal, opposite party 1, and Satyendranath Sanyal, and three daughters, namely, Srimati Sarjoo Bala Devi, Srimati Shu Kumari Devi and Srimati Lalana Bala Devi. By his will Sarnath Sanyal disinherited his younger son, Satyendranath Sanyal, who had not married and lived separately from him and, as stated in the will, had squandered much of the testator's money and had not been obedient to him. He, however, permitted him to live in his residential house if he so wished and if he also paid back the money which he had borrowed from the testator he was to be paid a sum of Rs. 15 per mensem during his lifetime so long as he lived in the testator's residential house. The testator, in para. 5 of his will, also gave the right to live in his house during their lifetime to his eldest daughter, Srimati Sarjoo Bala Devi and his youngest daughter, Srimati Lalana Bala Devi and fixed an allowance of Rs. 15 each per mensem for them so long as they lived in his house.

3. In para. 6 of the will he says that his second daughter, Srimati Shukumari Devi, was living in his house with her three minor sons and two minor daughters. He allowed her to live in his house with her children and fixed an allowance of Rs. 50 per mensem for her till her sons attained, majority and her daughters were married. He also provided that "she shall receive an amount of saving from the income of property, if any, for her daughters' marriage," After her sons had attained majority and her daughters had been married the allowance was to be reduced to Rs. 15 per mensem in case she still continued to live in his house.

4. In para. 8 of the will he also gave to his widowed daughter-in-law, Srimati Usha Bala Devi, the right to live in the house and to receive an allowance of Rs. 15 per mensem throughout her life.

5. In para. 9 of the will he made provision for certain expenditure to be incurred over his funeral and for the celebration of the Sradh and the Chaturthi Sradh ceremonies. He also provided that the cost of taking out probate was to be paid from his estate.

6. In para. 10 of the will he charged his eldest son, Hrishikesh Sanyal, opposite party 1, with the payment of the monthly allowances fixed by him, maintenance of his properties, payment of taxes, etc., and the carrying out of repairs to the buildings. The balance of the income was to be utilized by him for himself. He charged all his property with the payment of the allowances fixed by him and directed opposite party 1 not to "mortgage or sell" the property. In case a son was born to him, he would, if he survived, have "the absolute right to my estate." In the absence of any male child to his two sons, opposite party 1 was authorised "to dispose of the said properties in the way he thinks proper either by giving it to some charitable purpose or by giving it to my grand-children (daughters' sons)" adding that "this shall not operate during the lifetime of my children."

7. The applicant has made various allegations against opposite party 1 of breach of trust and his contention is that he is not a fit person to continue to ho