JUDGMENT : ( 1. ) THIS is an application under section 301 of the Indian Succession Act, 1925 on the original side of the High Court for removal of an executor appointed under a will. ( 2. ) APPLICANT No. 1 Dr. Smt. Kusum Kurre is the widow and applicant No. 2. Avinash Kumar, a minor, is the sons of Late Dr. R. P. Kurre who was the medical practitioner at Raipur. He died. Before his death however, be executed a will which is on record as Annexure-A. It is not disputed that it is his last will. He has appointed his brother Dharam Singh, the respondent as the executor of the will. Dharam Singh, therefore, after the death of his brother, applied for grant of a probate of that will. This application was made in the name of legatee viz. the applicant No. 2 and he described himself as the guardian of that child. With that application the respondent also annexed schedule of property by his deceased brother. The applicants opposed that application. They have, however moved this Court by the present application for removal of the respondent as executor of the will of deceased, Dr. R. P. Kurre. Further prayer has been made for appointment of the applicant No. 1 as the executor in place of the respondent. Number of documents have been filed. The application here* is supported by affidavit of the applicant. On being noticed the respondent entered appearance and filed the reply opposing the application and also filed a detailed affidavit supporting his reply. He has also filed documents in support of his contentions. Ordinarily, this application should have been tried insofar as it is possible as a suit. However, counsel for the parties agreed before this Court that the matter be decided on the basis of their affidavits and the available documents No evidence, therefore, was recorded. The counsel for the parties were heard at length. After hearing them I have reached a conclusion that the prayer for removal of the respondent as sole executor of the will of his deceased brother Dr. R. P. Kurre should be allowed and he be removed. However, I am not inclined to accede to the further prayer made by the applicants for appointment of applicant No. 1, Dr. Smt. Kusum kurre as executor in place of the respondent. R. P. Kurre should be allowed and he be removed. However, I am not inclined to accede to the further prayer made by the applicants for appointment of applicant No. 1, Dr. Smt. Kusum kurre as executor in place of the respondent. Executor is defined under Section 2 (c)of the Indian Succession Act, 1925 to mean a person to whom the execution of the last will of a decessed person is, by the testators appointment, confided. By force of section 211 of the Act, the executor of the deceased person is his legal representative for all purposes and all the property of the deceased person vests in him as such. He derives title under the will and immediately upon the testators death, testators property vests in him, there being no interval between the testators death and the vesting of the property. His personality vis-a-vis the property of the testator is distinct from that of a trustee for the executor has a general power to receive and pay what is due to and from the estate while trustee has power to pay what is vested in him as trustee to the persons for whose use holds that property. The property thus, vests in the executor for purposes of administration and in the legatee for enjoyment. All that the executor has to do is to accept the office as executor and the property thus vests in him. He, therefore, can do all that the deceased could have done in respect of the estate. Such vesting, however, is not of the beneficial interest in the property which interest vests in the legatee only, but the vesting is for purpose of representation only. ( 3. ) SECTION 213 of the Indian Succession Act, 1925 provides that no right as executor can be established in any Court of Justice unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed. The provision is made applicable to certain classes of cases as enumerated in sub-section (2) of Section 213 of the Act. The analysis of the aforesaid provision would indicate that because of such interest created in the executor in respect of the property of the deceased representing the legatee, he can manage the entire estate as the deceased himself would have done. He is responsible for execution of the last will of the deceased. The analysis of the aforesaid provision would indicate that because of such interest created in the executor in respect of the property of the deceased representing the legatee, he can manage the entire estate as the deceased himself would have done. He is responsible for execution of the last will of the deceased. By naming a person as executor in the will, the testator expresses his utmost confidence and also feels confident that his last wishes shall be carried out in the manner indicated. It is, therefore, clear that a person who is named as the executor in the will of the deceased may be allowed to continue to act as the executor and respresent the estate of the deceased and continue to manage it so long as he maintain the confidence reposed in him by the deceased and commits no breach of that confidence. The moment he does so be ceases to be person competent to continue to hold that office. Such a person in that event has to be removed and some other person has to be appointed succeeding him. Such a power has been given to the High Court only under Section 301 of the Act. Section 301 is as follows : "301- Removal of executor or administrator and provision for successor.-The 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. " It is pertinent to note that in the text of this section no specific grounds have been included/enumerated for removal of any private executor or administrator. The executor so named in the will, therefore, should be removed only when proper case in that behalf is made out for last wishes of the deceased as expressed in his will nominating a person and an executor should be highly respected. While exercising power under Section 301 of the Indian Succession Act, the Court must guard itself against any frivolous attempts for collateral purposes to remove the executor. If the court finds that the person making an application has not come out with a clear title or has not come with clean hands, the application should be refused. While exercising power under Section 301 of the Indian Succession Act, the Court must guard itself against any frivolous attempts for collateral purposes to remove the executor. If the court finds that the person making an application has not come out with a clear title or has not come with clean hands, the application should be refused. However, if the court finds on proper enquiry that the executor is acting contrary to the interest of the beneficiary, is not honestly carrying out wishes of the deceased, has started claiming title in the property adverse to the deceased or the legatee, is withering away the property to the detriment of the interest of the legatee, it shall be justified in exercising its jurisdiction under this provision in removing the executor and succeeding him by another. In such cases main guide must be the welfare of the beneficiary. Want of honesty or want of proper capacity to exercise duties or want of reasonable fidelity may well justify an order under this section directing removal of the executor. ( 4. ) IN the instant case, the material on record disclosed that the respondent soon after the death of the testator started betraying the trust reposed in him by claiming title in himself into the property which not only were left by the deceased but were specifically mentioned in the will itself as belonging to the deceased. He even did not care to mention any house property left by the deceased in the schedule annexed to the application for obtaining probate. In para, ten of the affidavit filed along with the reply the respondent has mentioned that the house which was mentioned by the deceased as his own in the will itself belonged to his father. This is how he explained the non-inclusion of that house property in that schedule. The respondent also filed an affidavit of one Poonaram, who claimed to have constructed those houses on behalf of the respondents father, Kalkatia. According to the Poonarams affidavit, the money for construction of those houses was paid by Poonaram. In my opinion, nothing more is required to remove such a person from the office of executor. There can be no better illustration of breach of trust of the faith reposed by the deceased in the person appointed as executor in his will. According to the Poonarams affidavit, the money for construction of those houses was paid by Poonaram. In my opinion, nothing more is required to remove such a person from the office of executor. There can be no better illustration of breach of trust of the faith reposed by the deceased in the person appointed as executor in his will. We also find that a scooter which belonged to the deceased was also claimed by the respondent as his own. After the death of the testator, he got it registered in his name in the office of a Regional Transport authority. The applicants have referred to a few more deeds of the respondent disentitling him to continue to hold the office of the executor. It is said that he opposed the application filed by the applicants for mutation of the names against certain nazul plots and agricultural land admittedly held by the testator. The respondent even went to the extent of denying the testators marriage with applicant No. 1, when the testator during his life time proclaimed her to be his wife. Again the respondent created all obstacles when a house was being let out to the Police Department by the applicants. Litigations including proceedings under Section 145 of the Criminal Procedure Code are pending between the applicants and the respondent and the applicant No. 1 has even accused him of indecency as misbehaviour. The respondent, in my opinion, has miserably failed to meet these accusations levelled against him. I am, therefore, of opinion that for these reasons he has rendered himself thoroughly incompetent to continue to hold the office of the executor of the will of his deceased brother, Dr. R P. Kurre. He is, therefore, liable to be removed. ( 5. ) I am also of the opinion that the applicant No. 1 also is not a fit person to be replaced as the executor. It appears from the will that the young Doctor Kurre was required to execute the will because of some family disputes, When he had appointed his separate brother as the executor this famaly dispute must reasonably be held to have a reference to some dispute between applicant No. 1 and the deceased. The respondent has sworn an affidavit that their relations were never good and at times the applicant No. 1 even threatened to leave the matrimonial home. The respondent has sworn an affidavit that their relations were never good and at times the applicant No. 1 even threatened to leave the matrimonial home. The applicant No. 1 also applied for mutation of her name against the property of the deceased. This is against the terms of the will which leaves the applicant No. 2 alone as the sole legatee. It is clear that the testator himself did not want the applicant No. 1 to be executor and does not seem to have reposed any confidence in her in that behalf. She too, therefore, in my opinion, is not a person who may be appointed as the executor. ( 6. ) THE result of the aforesaid discussion is that the application succeeds partly. The respondent No. 1 is hereby removed from the office of the executor of the last will of the deceased Dr. R. P. Kurre. Applicants prayer for appointment of applicant No. 1 as the executor is disallowed and to that extent the application is dismissed. ( 7. ) HOWEVER, in order to safeguard the interest of the applicant No. 2 i. e. sole legatee under the will of his deceased father Br. R. P. Kurre and for proper management of the testators property, I hereby appoint Shri D. S. Surana, Advocate, raipur as the executor of the last will dt. 6-7-1980 (Annexure-A) of the deceased Dr. R. P. Kurre. Counsel appearing for both the parties did not have any objection instead they expressly gave their accord for this appointment of Shri D. S. Surana, Advocate raipur as executor. Order accordingly. There shall be no order as to costs. Order accordingly.