JUDGMENT: — These two original petitions have been filed by the second son and the widow of a predeceased son of one late Dr. P. B. Annangarachari under the provisions of the Indian Succession Act (XXXIX of 1925) (hereinafter referred to as the Act). The proceedings concern the registered will of late Dr. P. B. Annangarachari which is of the date 26th April, 1973. The respondent in the two petitions is the executor appointed under the said will. O. P. No. 200 of 1979 is preferred under section 301 of the Act for the removal of the respondent as executor appointed under the will, O. P. No. 212 of of 1979 is one filed under sections 192 and 194 of the Act for a direction to the respondent to deliver to the petitioners possession of the X-Ray unit known as T. Nagar X-Rays, situate at No. 99, Usman Road, T. Nagar,Madras-17, on the ground, that the respondent has no lawful title to be in possession thereof. Before the respective cases of the parties are considered on merits, it becomes necessary to set out certain events which have preceded the institution of the present proceedings. Even during the life-time of late Dr. P. B. Annangarachari, the respondent seems to have been put in charge of the X-Ray unit at the premises in question. This is also evident from Exhibit P-9, copy of a letter addressed by the respondent to late Dr. P. B. Annangarachari, dated 23rd April, 1972, and copy of the reply dated 2nd October, 1972, written by late Dr. P. B. Annangarachari to the respondent. These two letters disclose that there was a register of dissatisfaction by the respondent with regard to the notes of instructions given by late Dr. P. B. Annangarachari over the manning of the X-Ray Unit and that was repelled by late Dr. P. B. Annangarachari pointing out to the respondent that his complaint was in bad taste and ignored actual facts. On 28th April, 1973, late Dr. P. B. Annangarachari executed the will in question under the original of Exhibit P-1 (which is a photostat copy) bequeathing the properties to his second son, the first petitioner, and the widow of his pre-deceased son, the second petitioner herein. The petitioners are the beneficiaries with regard to the X-Ray unit and as stated above, the executor appointed under the said Will is the respondent. 2. The petitioners are the beneficiaries with regard to the X-Ray unit and as stated above, the executor appointed under the said Will is the respondent. 2. On 8th September, 1973, late Dr. P. B. Annangarachari gave a general power under Exhibit P-7 to Dr. S. Srinivasachari, who is his eldest son-in-law. Under this general power, Dr. S. Srinivasachari was given the power to take charge of the running of the X-Ray unit, maintain accounts expand the sections, collect moneys due and payable to the X-Ray unit and do all further acts and things necessary for the purpose of efficiently running the X-Ray unit. It was further declared that the said power is irrevocable for a period of three years from the date of its execution. Dr. S. Srinivasachari seemed to have entered into an arrangement with the respondent, permitting him to run the X-Ray unit and agreeing to certain conditions. The arrangement was agreed to be in force from 1st April, 1976 till 31st March, 1979, and the understanding was that if any of the conditions stipulated was not adhered to, the arrangement should be revoked. The arrangement was reduced to writing and the document in the handwriting of Dr. S. Srinivasachari has been marked in this case as Exhibit R-1. It does not bear the signature of either party. The contents of Exhibit R-1 run as follows: “I, T. P. S. Varadhan, residing at 44-A, Thambiah Reddy Street, Madras-33, hereby agree to run the T. Nagar X-Rays in the same premises under the following terms and conditions: — 1. To take X-Rays and collect all money due to the Department and run the Department efficiently. 2. To pay the proprietor Dr. P. B. A. or to his nominee or to his heirs in the event of his death, a sum of Rs. 100 (Rupees one hundred only) per day. 3. To pay into any S. B. a/c Rs. 10 (Rupees Ten only) as a reserve fund for renewal and repairs. 4. To pay the bills of purchase of films, chemicals, stationery and printing and also electricity. This agreement shall be in force from 1st April, 1976 to 31st March, 1979 and shall be revoked if any of the above conditions being not adhered to.” Two other slips in the handwriting of Dr. 4. To pay the bills of purchase of films, chemicals, stationery and printing and also electricity. This agreement shall be in force from 1st April, 1976 to 31st March, 1979 and shall be revoked if any of the above conditions being not adhered to.” Two other slips in the handwriting of Dr. S. Srinivasachari are also found annexed to Exhibit R-1 and they have been marked as Exhibits R-2 and R-3. An unauthenticated copy of the Income and Expenditure account of the X-Ray unit for the year ending 31st March, 1978 has been filed, and marked in this case as Exhibit P-6. Late Dr. P. B. Annangarachari died on 26th January, 1979. After his death, troubles brewed between the parties and the correspondence that has come to be exchanged between them has been marked as Exhibits P-2 to P-5. From the said correspondence, it is clear that the respondent has chosen to claim a leasehold right over the X-Ray unit and this has precipitated the petitioners to institute the present proceedings for the reliefs set out above. 3. In O. P. No. 200 of 1979 the petitioners want the removal of the respondent from executor-ship for the reasons set out in pargraph 9 of the petition and they will be better appreciated if they stand extracted as follows: “1. The respondent has not so far taken any steps to obtain a probate of the Will, solely with a view to aggrandise himself. 2. The respondent has claimed falsely that he is a lessee of the X-Ray unit, which consists of very valuable properties and equipment. 3. Having been employed under the Testator, the respondent with fraudulent intention to defraud the beneficiaries under the Will and against the instructions of the petitioners and without their consent broke open the doors of the X-Ray unit on 19th May, 1979, and is carrying on business and appropriating the entire proceeds of the business without accounting to the petitioners, the beneficiaries for the whole of the realisations. 4. The respondent has not accounted for the entire realisations of the business from 27th January, 1979, which he ought to have done, but has been disclosing only an in finitely small part of the revenue and appropriating to himself the proceeds. This amounts to devastation of the estate of the deceased testator. 5. 4. The respondent has not accounted for the entire realisations of the business from 27th January, 1979, which he ought to have done, but has been disclosing only an in finitely small part of the revenue and appropriating to himself the proceeds. This amounts to devastation of the estate of the deceased testator. 5. When he was confronted, the respondent had the audacity to say that he will do whatever he likes and that he is an executor under the will and that the petitioners have no right to question him and the petitioners should obtain probate of the Will, which should be done by him and that if the petitioners or anybody else interfered with him, he would cause them bodily harm and would not permit the petitioners to have any access to the records and affairs of the T. Nagar X-Rays.” 4. In the counter-statement of the respondent, he would elaborately trace the events which preceded the institution of the proceedings and array them from his own angle, and would controvert the reasons advanced, as above, for his removal from executor-ship. But, in substance he would state that the X-Ray unit is maintained and managed by him under a lease agreement in his own capacity thereby indicating that he cannot give up his right to be in possession of the X-Ray unit as a lessee as claimed by him. The allegations in O. P. No. 212 of 1979 run similar to the allegations in O. P. No. 200 of 1979 and agitating their right to be in possession of the X-Ray unit as legatees under the Will of late Dr. P. B. Annangarachari and alleging that the respondent has no lawful right to be in possession of the said X-Ray unit, the petitioners want delivery of possession of the X-Ray unit from the respondent. The counter-statement of the respondent would resist this prayer on grounds of defence similar to those advanced in O. P. No. 200 of 1979. On the contentions raised in the pleadings of the parties, the following points arise for determination by this Court: “1. Whether the petitioners are entitled to have the respondent removed from the executor-ship under the Will in question? 2. Whether the petitioners are entitled to delivery of possession of the X-Ray unit in question from the respondent?” 5. On the contentions raised in the pleadings of the parties, the following points arise for determination by this Court: “1. Whether the petitioners are entitled to have the respondent removed from the executor-ship under the Will in question? 2. Whether the petitioners are entitled to delivery of possession of the X-Ray unit in question from the respondent?” 5. The main controversy between the parties centres around the lease-hold right claimed by the respondent over the X-Ray unit. There is no ambiguity that the arrangement evidenced by Exhibit R-1 came to an end with the expiry of the period on 31st March, 1979. The respondent has no specific case that the arrangement was continued after the lapse of the period reserved, by a renewal, express or implied. There is no such plea at all in the pleadings of the respondent, as to how the arrangement continued after 31st March, 1979. The evidence of the respondent as R. W. 1 at pages 111, 116 and 117 of the transcript of evidence, as extracted below, reveals his stand. (The extracts from evidence and discussion on facts are omitted: Ed.). 6. To a question by this Court as to what are the rights of the respondent over the X-Ray unit after 31st March, 1979, his learned counsel could not give any convincing answer. It would be far-fetched to describe the arrangement under Exhibit R-1 as one of lease. Even assuming it could be characterised as an arrangement of lease of the X-Ray Unit, it came to an end with the lapse of March, 1979. How any right or obligation under it could survive and survived beyond 31st March, 1979, there is no tenable explanation. The learned counsel attempted to bring his client's claims as those of a lessee holding over within the ambit of the provisions of the Transfer of Property Act. This is a patent misconception, both in law and on facts. Such is not the plea of the respondent either in his pleadings or in his evidence. It does not require further consideration. Before parting with this aspect, it must be pointed out that the oral evidence placed in this case has gone beyond the scope of the real controversy, which alone need be solved in this case. Such is not the plea of the respondent either in his pleadings or in his evidence. It does not require further consideration. Before parting with this aspect, it must be pointed out that the oral evidence placed in this case has gone beyond the scope of the real controversy, which alone need be solved in this case. As to in what capacity or under what authority the respondent is still holding possession, his evidence at pages 126 to 128 of the transcript of evidence is interesting; and the same is extracted hereunder; (Extracts omitted-Ed.). * * * * 7. At no point of time earlier, he put forward the theory that his possession of the X-Ray unit is only in his capacity as an executor. Obviously, this stand is purely an after-thought, intended to modify the utter lack of bona fides when he put forth a claim as a lessee of the X-Ray unit. His evidence at pages 138 and 139 of the transcript of evidence runs contra to his earlier evidence referred to above, as could be seen from the following extract: (Extracts omitted-Ed.) * * * * 8. R. W. 1, the respondent categorically answered that even if the petitioners establish their right under the will, he is not prepared to give it up and he will not hand over back. Such is the attitude of the respondent. The analysis of the materials placed in this case leaves no room for doubt that the lease-hold right claimed by the respondent is patently unsustainable and is nothing but a myth coming out of the imagination of the respondent. Here is a person who put forward a claim as a lessee, obviously sensed its futility and has turned back, and would state that he would like to be in possession as an executor and even to this stand, he would not stick on and would further state that he would like to continue even after the beneficiaries establish their rights. A person who is capable of such prevaricating stand is not a desirable person to function as an executor under the will. He has no qualms to put forth a false claim, adverse to and defeating and thwarting the legitimate rights of the beneficiaries under the will. 9. A person who is capable of such prevaricating stand is not a desirable person to function as an executor under the will. He has no qualms to put forth a false claim, adverse to and defeating and thwarting the legitimate rights of the beneficiaries under the will. 9. The respondent does not dispute that the petitioners are the beneficiaries under the will and he would insist on the probate of the will being obtained by them. The very fact that he has put forth a right, which is absolutely untenable and which conflicts with the rights of the beneficiaries is sufficient for this Court to exercise the powers under section 301 of the Act. He has acted with extreme mala fides and his acts border to misconduct as an executor. The guide-line must be the welfare of the beneficiaries and certainly, the conduct of the respondent is not conducive to the welfare of the beneficiaries. 10. In this context, the orders passed by this Court in interlocutory applications cannot also be lost sight of. In Application No. 1956 of 1979, which is one for appointment of a Receiver, taken by the petitioners, this Court, by order dated 2nd July, 1979, instead of appointing a Receiver as prayed for, directed the respondent to pay the petitioners a sum of Rs. 200 per day from 1st May, 1979, and, further directed that the arrears upto date should be paid within two weeks from that day. The respondent had not cared to make the payments at the rate of Rs. 200 per day upto date from 1st May, 1979, in full. On this being brought to the notice of this Court, orders were passed on 27th August, 1979, giving the respondent a last chance to pay all the arrears upto date within a week from that date. In Application No. 3897 of 1979, the petitioners complained that apart from paying the amounts stated to be due up to 9th September, 1979, there has been a failure on the part of the respondent to make the payment as per orders of this Court. I do not find any rebuttal of the same by the respondent. This attitude of the respondent is highly reprehensible. 11. I do not find any rebuttal of the same by the respondent. This attitude of the respondent is highly reprehensible. 11. In Dhanabakkiyammal v. Thangavelu Mudaliar1, a Division Bench of this Court, consisting of Ramesam and Cornish, JJ., delineated the powers of this Court under section 301 of the Act in the following terms: “Now, much wider powers are conferred upon courts both in India and in England for the removal of an executor. Mr. Doraiswami Iyer, does not contend that a regular suit for the removal of an executor lies, apart from section 301. It is, therefore, clear that if the removal of an executor is sought, and not an indirect restraint on him by merely getting the appointment of a receiver, the only remedy that is open is under section 301. The use of the word ‘may’ in this section shows merely that a proper case must be made out and the Court shall act only if a proper case is made out. To that extent, no doubt, the power vested in a Court under this section is discretionary but the discretion is not arbitrary but it is a judicial discretion. It may be that the section does not try to exhaust the kinds of charges that may be brought against an executor or other circumstances that ought to be made out before his removal can be obtained.” In my view the facts of the present case warrant the exercise of the discretion vested in this Court under section 301 of the Act. 12. The respondent has pleaded that a suit alone is competent. However, this plea was not seriously advanced by his learned counsel in the course of hearing of these petitions. In any event, this plea is not sustainable in view of the position in law that the power to remove an executor and provide for a successor to his office is one conferred upon the High Court alone by section 301 of the Act and such a relief cannot be sought by a regular suit. 13. The matter is not without an authority. Coldstream, J., speaking for a Division Bench of the Lahore High Court in Karam Devi v. Radha Krishnan2, observed as follows: “There being no power in the Courts to remove an executor by virtue of their jurisdiction under section 9, Civil Procedure Code. Mr. Mehr. 13. The matter is not without an authority. Coldstream, J., speaking for a Division Bench of the Lahore High Court in Karam Devi v. Radha Krishnan2, observed as follows: “There being no power in the Courts to remove an executor by virtue of their jurisdiction under section 9, Civil Procedure Code. Mr. Mehr. Chand's argument that there is a presumption against a construction of section 301 in such a manner as to oust or limit the jurisdiction of the ordinary Courts is without substance. When a new cause of action is created by statute and a special jurisdiction outside the course of the general law is prescribed, there is no ouster of the jurisdiction of the ordinary Courts, for, they never had any (see Maxwell on the Interpretation of Statutes, 7th Edition, p.115). On the other hand, the proposition is well established that where an Act creates a special jurisdiction and provides a special remedy such jurisdiction is exclusively conferred upon the Court expressly empowered to deal with the matter. My conclusion is that the power to remove on executor and to provide for a successor to his office is one conferred upon the High Court alone by section 301, Succession Act, and that such relief cannot be sought by regular suit.” I am in respectful agreement with the above dictum of the Division Bench of the Lahore High Court. 14. Yet another contention was put forth by the learned counsel for the respondent when he stated that the petitioners cannot seek remedies under section 301 of the Act in the present petition without first obtaining probate of the will in question under the provisions of the Act. Neither the language of the provision nor any authority supports this contention of the learned counsel for the respondent. The question came up for consideration in a very early judgment of this Court in O. P. No. 117 of 1926, dated 6th September, 1926. V.V. Srinivasa Iyengar, J., after considerably discussing the position, observed as follows: “It is possible that the legislature might have intended that even before grant of probate such a right to remove the executor should vest in the Court, because there may be causes in which by putting off taking probate executors might seek to take advantage of their own wrong and thereby stove off the liability under section 301. The conclusion I have therefore arrived at is that, even though probate has not been granted in respect of the will referred to in this matter the application is competent and not open to any objection.” 15. Learned counsel for the respondent is not in a position to quote any authority which has held otherwise. With regard to the other grounds urged by the petitioner for the removal of the respondent from executor-ship they are not of much substance, and most of them practically stem from the main controversy concerning the leasehold right claimed by the respondent. But, that does not bring any assuage to the highly reprehensible conduct of the respondent. Once this Court removes the respondent from executor-ship and his case of lease is disbelieved he has no lawful title to be in possession of the X-Ray unit. It would be iniquitous and would cause prejudice to the petitioners to drive them to the ordinary remedy of a suit for recovery of possession in the context of the case. 16. For all the above reasons, I am inclined to hold against the respondent. Accordingly, the petitions are allowed. The respondent is removed from his office as an executor under the registered will of late Dr. P. B. Annangarachari, dated 28th April, 1973. It is brought to my notice that the petitioners have already taken steps to have the said will probated, claiming rights of executor-ship by implication. The respondent is directed to hand over to the petitioners forthwith possession of the X-Ray unit known as T. Nagar X-Rays, situate at No. 99, Usman Road, T. Nagar,Madras-17, with all the equipments. The petitioners are entitled to costs of these proceedings from the respondent. S. J. ----- Petitions allowed.