( 1 ) THIS is a petition presented under Section 302 of the Indian Succession act ('the Act' for short) by one of the beneficiaries under a Will dated 4-10-1965 left behind by one Sri Singaroyan s/o late J. Savarinayagam Pillao, praying for issue of directions to the administrators of this will namely Dr. Miss. Josephine Dominick, m. B. B. S. , D. G. O. , r/at No. 15, Hospital road, Civil Station, Bangalore, d/o late Dr. S. Bagianathan, the brother of the testator and Sri. K. Arokia-swamy s/o late Sri kankickam, r/at No. 75-G, Main Street, jopugpalyam, Ulsoor, Civil Station, Bangalore-8, the husband of step-sister of the testator to ensure compliance with the intentions of the testator as per the will for distribution of the properties under the Will executed by the testator and in terms of the order of probate dated 28-3-1978 granted in Prob. and Succession Case No. 7/1978 on the file of the Court of the City Civil Judge at Bangalore. ( 2 ) THE case of the petitioner is that the petitioner and respondents are the children of one Joseph alias Susairaj that the said susairaj had a step-brother by name singaroyan; that the children of Joseph susairaj were brought up by the said singaroyan who had left behind a Will as indicated earlier, under which the properties of the testator which remain after giving effect to the various wishes of the testator, should be shared amongst the three children of Joseph alias Susairaj; that the administrators of the Will had sought for issue of letters of administration by filing P and S. C. 7/1978 before the City Civil Court at Bangalore and that an order had been passed in those proceedings ordering furnishing of inventory' and accounts by the administrators. The further pleading is that the administrators never gave effect to the wishes of the testator; that instead, they acted in violation and contrary to the terms of the Will; that the administrators, perhaps in collusion with the second respondent, the brother of the petitioner and one of the beneficiary under the Will who is also entitled for 1/3rd share in the estate of the testator, executed what is known as the "deed of transfer of Trust" on 9-8-1978, under which they have purported to transfer the remaining property namely the house at Nos. 11 and 12, Murugesha Mudaliar Road, Frazer town, Bangalore, in favour of the second respondent and the administrators having not put the petitioner in possession of the petitioner's 1 /3rd share in the properties of the testator, this petition is filed praying for issue of directions to the Administrators to ensure compliance with the mandate of the testator and the terms of the Will. ( 3 ) THE petition is contested only by the second respondent. Objections are filed by the second respondent. The first respondent, a sister of the petitioner who is served and is represented by Counsel, has not opposed the petition or the prayer. ( 4 ) THE second respondent has contended that the petition itself is not tenable; that the second respondent being neither an executor nor an administrator appointed under the Will, no directions can be issued in this petition to the second respondent and a direction can be issued only to the administrators. It is also averred that the executors had been given absolute discretion by the testator and if the executor chose to settle the entire property and interest on the second respondent, it is in consonance with the terms of the Will itself and such action on the part of the executors having not been challenged by the petitioner for the past about twenty-five years subsequent to the grant of probate, it cannot be done so now. What is pleaded is that the petitioner should be deemed to have acquiesced with the developments and state of affairs as on date v/hich is that the petitioner is enjoying the entire property left behind by the testator to the exclusion of the other two beneficiaries under the Will. ( 5 ) WHILE there is a general denial of the other averments in the petition, the Will itself is not in dispute. The property that was available for being administered at the time of the death of the testator being the house property referred to above is not in dispute and that under the Will, the petitioner and respondents 1 and 2 were entitled to share the remaining property in equal share is also not disputed. Delay and laches are pleaded as defence for dismissing the petition. ( 6 ) 1 have heard Smt. Radha and Sri suresh S. Joshi, learned counsel appearing for the petitioner and second respondent respectively. Delay and laches are pleaded as defence for dismissing the petition. ( 6 ) 1 have heard Smt. Radha and Sri suresh S. Joshi, learned counsel appearing for the petitioner and second respondent respectively. ( 7 ) A preliminary objection raised on behalf of the second respondent by Sri Suresh joshi, learned counsel is that the petition is not tenable as the person who has sought for direction is not either an administrator or an executor of the Will. His submission is that it is only an administrator or the executor who is entitled to maintain a petition under Section 302 of the Act for seeking directions. ( 8 ) A cursory glance of the provisions of section 302 of the Act which reads as under :-"directions to executor or administrator :- 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. "makes it very clear that the High Court may, on application made to it give to the executor or administrator any general or special direction in regard to the estate or in regard to the administration of any estate where probate or letters of administration has/have been given. Therefore, it is very clear that the application may be filed by any person. At the best, this Court may examine the sufficiency of the locus of such a person to file a petition under Section 302 of the Act and nothing beyond. There is no other restriction imposed on a person filing such an application. A direction is to be given to the executor or administrator for the purpose of administration. ( 9 ) THERE is no doubt in my mind that the present petition filed by a person who was entitled to 1 /3rd share under the Will which has been probated and who has not been given that share by the administrators who have virtually mal-administered the estate and rather have acted in contravention of the wishes of the testator, can definitely be maintained and the present petitioner can certainly maintain a petition under Section 302 of the Act for issue of necessary directions to the administrators or the executors. The petition is, therefore, maintainable. The petition is, therefore, maintainable. ( 10 ) NOW, coming to the merits of the matter, if the petitioner seeks for directions to be issued to the executors /administrators to give effect to the Will in terms of the will itself, there is no question of this Court refusing or denying such relief sought for by the petitioner. Ultimately it is the duty of the Court to ensure that the wishes of the testator is given effect to in the manner in which it has been expressed in the Will itself. A person who takes out letters of administration from the Court cannot be permitted to act according to his whims and fancies and at any rate contrary to the provisions of the will itself. When the Court notices such errant action on the part of the administrator, the Court should set right things and issue necessary directions to the administrator to give effect to the Will in the manner in which it is executed. The opposition of Sri Suresh Joshi, learned counsel for issue of directions is that the action on the part of the administrator is perfectly justified and in consonance with the terms of the Will itself. What is contended by Mr. Joshi is that the administrators had full discretion to even sell away any part of the estate, apply the proceeds for the purpose of educating the three children of Mr. Joseph alias Susairaj, for the purpose of incurring expenses at the marriage of the two daughters namely the petitioner and the first respondent and to distribute the balance equally amongst the three beneficiaries. Joseph alias Susairaj, for the purpose of incurring expenses at the marriage of the two daughters namely the petitioner and the first respondent and to distribute the balance equally amongst the three beneficiaries. However, what is sought to be contended on behalf of the second respondent by Sri suresh Joshi is that at the time of execution of the Will, the testator had indicated that he had possessed three house properties and even during his lifetime, the testator had sold away two of the house properties for the marriage expenses of the petitioner and respondent No. 1 and what remained was only one house property and when this is the factual position, if the administrators had in their wisdom, given the remaining one house property available at the time of the death of the testator to the second respondent alone, it should be taken as in consonance with the wishes of the testator himself and in the exercise of the discretion that had been given to the administrators under the Will itself and in which event, it cannot be contended that what has been done by the administrator is anything contrary to the terms of the Will. The argument, though is made to look attractive, is not only fallacious but runs contrary to the very terms of the Will. The provisions of the will relating to the distribution of the properties are as under :-"my Executors shall in their discretion sell the abovesaid immovable properties, my mother movable properties and all my other assets which may be found at the place of my residence at the time of my demise, at an advantageous price, invest the same in either Government securities or some other income yielding investment and out of the proceeds maintain and educate the two daughters and the son of my deceased stepbrother Joseph who after the death of their father the said Joseph are being looked after and brought up as my own children. When the girls attain marriageable age they shall be settled decently in keeping with their status in life and the expenses of such marriage shall be met out of the principal amount of my estate. When the girls attain marriageable age they shall be settled decently in keeping with their status in life and the expenses of such marriage shall be met out of the principal amount of my estate. On the boy attaining the age of 25 years, if his conduct and behaviour are satisfactory and my Executors are of the opinion that he will be able to manage his affairs, then the residue of the Estate shall be divided in equal shares and handed over to the aforesaid three children. " ( 11 ) WHAT is very clear is that whatever remains after giving effect to the earlier wishes such as educating the children and performing the marriage of the two sisters, should be divided equally amongst the three beneficiaries. ( 12 ) IT leaves no doubt in the mind of any person that whatever remains even at the time of the death of the testator is required to be shared amongst the three beneficiaries in equal shares. It is also not the case of the second respondent that the administrators had utilised the funds from out of the estate for the benefit of the two sisters. The administrators were only required to distribute the remaining part of the estate that was available for distribution in equal shares amongst the three beneficiaries. Unfortunately that is not what the administrators have done but in the guise of using their discretion, have committed violations of the Will and to the wishes of the testator. ( 13 ) SRI Suresh S. Joshi, learned counsel for the second respondent submits that neither of the two administrators pointed out under the Will are now available as both of them have passed away and as such no directions can be issued to any one as of now. Though it is vehemently submitted by Sri suresh Joshi that things should not be disturbed at this late point of time particularly after twenty five years, the submission cannot be accepted for the simple reason that illegality cannot be allowed to be perpetuated by this Court just because of lapse of time. Moreover, the cause of action remains for the petitioner so long as she is not put in possession of her 1/3rd share in the properties of the testator namely Mr. Singaroyan. Moreover, the cause of action remains for the petitioner so long as she is not put in possession of her 1/3rd share in the properties of the testator namely Mr. Singaroyan. So long as there is violation in terms of the Will and moreso by the act of the administrators, it is the duty of this court to set right that and to ensure that the Court order is not misused for committing illegality or to deprive a beneficiary of her legitimate share under a Will, in respect of which a Court has issued letters of administration. ( 14 ) THE factual position is that the second respondent has enjoyed the entire property namely the house property bearing Old nos. 11 and 12, New No. 11 of Murugesh mudaliar Road, Fraser Town, Civil Station, bangalore-5 measuring East to West-23 feet and North to South-59 feet with the boundaries mentioned in the schedule to the petition, for all these years exclusively though he was entitled to only 1/3rd shares in this property and to the detriment and exclusion of his other two sisters. As submitted by Sri suresh Joshi, the administrators are not available for complying or implementing the terms of the Will in accordance with the same. It is very necessary that this Court issues suitable directions in ensuring that the illegalities are set right and not allowed to be continued for ever. ( 15 ) MR. Suresh Joshi has also relied upon a Single Bench decision of the Calcutta High court in AIR 1949 Cal 462 (In the goods of Akshoy K. Ghose Deceased - Ordinary Original Civil Case, Decided on 23rd february, 1949) in support of his submission that substantial rights of the parties cannot be decided in a petition under Section 302 of the Act or to give any declaration to any of the rights of the parties. ( 16 ) IT is no doubt true that this Court will not embark upon an exercise of inter se rights of parties when there is a dispute. In the present case there is absolutely no dispute in respect of entitlement of right of the parties and that each of the party is entitled to l/3rd share. It is also not disputed that all the three are claiming only under the Will and not any other title. In the present case there is absolutely no dispute in respect of entitlement of right of the parties and that each of the party is entitled to l/3rd share. It is also not disputed that all the three are claiming only under the Will and not any other title. The only question is giving effect to the Will in the manner in which it was required to be done and setting right the illegality committed with the consent/connivance of the administrator and to the advantage of the second respondent for the benefit of the second respondent and to the disadvantage of the petitioner and the first respondent. I am of the view that setting right and issuing suitable directions is definitely within the scope of a petition under Section 302 of the Act. ( 17 ) THE purpose of a petition under Section 302 of the Act is for issue of directions to the administrators. In the present case the administrators have virtually abdicated their function and have transferred the entire property to the 2nd respondent. The second respondent, though a beneficiary under the Will, is virtually put in the position of the executor itself as he in possession of the property required to be distributed under the Will in his possession. Therefore, in the absence of the executors appointed under the Will, necessary directions are required to be issued to the second respondent itself. ( 18 ) IN the circumstances, this petition is allowed. The second respondent is hereby directed to put in possession of the petitioner of her 1/3rd share of the house property bearing Old Nos. 11 and 12, New no. 11 of Murugesh Mudaliar Road, Fraser town, Civil Station, Bangalore-5 measuring east to West - 23 feet and North to South -59 feet with the boundaries mentioned in the schedule to the petition, which has been given to her share under the Will and likewise, to put in possession the first respondent of her l/3rd share in the house property referred to above. Second Respondent to comply with these directions within a period of three months from today. Second Respondent to comply with these directions within a period of three months from today. ( 19 ) THE second respondent is also directed to render accounts of the proceeds and benefits, if any, that he has received from this property ever since 1978 when he was put in illegal possession of the entire property by the administrators purporting to be in terms of the Deed dated 9-8-1978. Accounts to be rendered within three months from today. Second respondent also to render an account for the mesne profits in respect of the property till he puts the petitioner and first respondent in possession of their respective shares. ( 20 ) THE conduct of the second respondent is most unjustified, unreasonable and the stand taken in the present petition is most untenable. The circumstances warrant the second respondent being mulcted with commensurate costs. ( 21 ) PETITION is allowed levying costs of rs. 5,000/- on the second respondent. Petition allowed. --- *** --- .