IMPORTANT POINT
Removal as Executrix – Normally, where Executor is named by testator, Court would be loath to remove him and appoint an Administrator pendente lite, or post grant of Probate, unless there is gross misconduct or mismanagement or waste of assets on part of Executor – Executor who is not a beneficiary cannot be permitted to continue to act as executor and trustees under the Will and codicil and as per provisions of Indian Succession Act.

JUDGMENT

This Petition is filed, inter alia, to remove the Respondent who has been appointed as an executrix, under the Will and last testament dated 21 April 2012, of Puthenveetil Rajagopal Menon (deceased), and allow the Petitioner Nos.1 and 3 to administer the property and credits of the deceased and also to direct the Respondent - executrix to produce proof of payments, give inspection and furnish copies of the documents, receipts and vouchers, referred to in the affidavit to file inventory and accounts, to deposit the original documents of title and also direct the Respondent - executrix to join the Petitioners in the sale of the property situated at Peramangalam Village, Thrissur District, Kerala (Ambadi House property) and restrain the Respondent, acting as executrix, from unilaterally selling, transferring, alienating or otherwise creating any third party rights in the said Ambadi House property.

2. The Petition arises in the backdrop of the following facts:

2.1 The deceased passed away on 29 July 2012. The deceased left behind the last Will and Testament dated 21 April 2012. The Respondent and Sudarsh Menon, husband of Petitioner No.3, were named as the executors in the said Will. Under the said Will, Ambadi House property has been bequeathed to all four children i.e. Petitioner Nos.1 to 3 and the Respondent. In Testamentary Petition No.1893 of 2015, filed by the Respondent as executrix, this Court granted Probate on 13 April 2016.

3. The Petitioners assert, post grant of Probate, the Respondent has abused her position as executrix and committed various acts of commission and omission detrimental to the estate of the deceased and interest of the beneficiaries under the Will.

3.1 It is, inter alia, asserted that, after the grant of Probate, the money which was standing to the credit of the account of the deceased, being Account No.34832 maintained with Canara Bank, Fort Branch, Mumbai, was appropriated by the Respondent towards the fees and expenses in connection with the Probate proceedings. The Petitioners / beneficiaries were kept in the dark. The Respondent has claimed inflated expenses and appropriated the amount.

3.2 As regards the Ambadi House property, the Petitioners alleged, the Respondent has not furnished accounts of the proceeds of sale of the trees, which were cut, and the fruits, obtained from the trees standing in the said property.

3.3 All the four co-owners decided to sell Ambadi House property as none of them was in a position to purchase the share of the rest three. On 12 August 2016, a Memorandum of Understanding (MOU) was executed with Mr. Jose Konikkara to sell Ambadi House property for a consideration of Rs.10.02 Crores. A part consideration of Rs.3 Crores was paid by Mr. Jose Konikkara, which has been distributed amongst the Petitioners and Respondent. Mr. Jose Konikkara, however, committed default in payment of the balance consideration, and, therefore, in accordance with the terms of the contract, as the time was essence, the agreement stood cancelled and part consideration stood forfeited.

3.4 Mr. Jose Konikkara addressed a legal notice on 1 November, 2017, adverting to the fact that the Respondent had demanded a sum of Rs.1 Crore for herself, over and above the sale consideration, and Mr. Jose Konikkara was compelled to pay a sum of Rs.25 Lakhs as an advance towards the said additional Rs.1 Crore. Out of the said amount, a sum of Rs.8 Lakhs was paid to the husband of the Respondent and Rs.4 Lakhs was paid to the daughter of the Respondent. This fraudulent act of the Respondent renders her unfit to continue to act as an executrix. The Respondent has, thus, committed breach of trust and confidence, reposed in her by the executrix, and acted in violation of the terms and conditions of the Will, subject to which the Probate has been granted to her.

3.5 The Petitioners further assert that they also learnt that the Respondent and Mr. Jose Konikkara had entered into a separate MOU on 9 July 2017 f