Executor Is The Living Instrument Of The Testator – He Cannot Administer The Estate At His Whims: Bombay High Court Removes Brother As Executor

“Persistent Non-Compliance And Vague Explanations Constitute Gross Misconduct Under Section 301”, In a powerful judgment reaffirming the sanctity of fiduciary obligations in testamentary matters, the Bombay High Court removed the Respondent as Executor under Section 301 of the Indian Succession Act, 1925, for persistent failure to administer the estate despite probate having been granted nearly a decade ago.

Justice Farhan P. Dubash opened the judgment with a reminder that strikes at the heart of testamentary law:

“An Executor is the living instrument of the deceased Testator’s final Will and stands in a fiduciary capacity, being entrusted with the sacred duty of ensuring that the voice of the Testator, though silenced by death, is carried into effect fully and in a timely manner.”

The Court held that prolonged inaction, non-compliance with court directions, and attempts to impose extraneous conditions not contemplated by the Will constituted gross misconduct warranting removal.

“Once Probate Is Obtained, The Executor Cannot Impose Conditions”

The Testator had passed away in 1997. Probate was granted to the Respondent in October 2016. Yet, even by 2026, substantial portions of the estate remained undistributed. The widow of the Testator had repeatedly approached the Court seeking distribution and ultimately passed away in 2024 “still awaiting her legacy.”

A prior order dated 29 January 2025 had granted the Executor a final opportunity with strict timelines — two months for movables and six months for immovables — clearly warning that failure would invite removal.

Instead of complying, the Executor continued to insist that beneficiaries sign a Memorandum of Family Settlement and furnish indemnities before distribution.

Rejecting this stand in emphatic terms, the Court reiterated its earlier findings:

“Once the Respondent obtained a Probate… it is not open to the executor to put condition for acceptance of the bequeath under the Will and obtain an indemnity from the beneficiaries.”

Referring to Section 317 of the Indian Succession Act, the Court reminded that the Executor is statutorily bound to exhibit a “true and full” inventory and accounts, and that furnishing an intentionally false account attracts consequences under Section 193 of the IPC. The insistence on indemnity, therefore, was “in the teeth of the statutory mandate.”

“Bare Assertions Are Not Compliance”: Shares, Dividends And IEPF Excuses Rejected

The Executor sought to justify delay on the ground that certain shares were transferred to the Investor Education and Protection Fund due to non-encashment of dividends, and that companies had refused transmission of jointly held shares.

The Court found these explanations wholly unsupported:

“Neither are any details of such shares provided nor is there any supporting documentary evidence produced by the Respondent.”

Crucially, the Court noted that even if shares were transferred to the IEPF, there was no explanation as to what steps were taken to recover them. Such indifference, the Court held, demonstrated failure to exercise due diligence expected of an Executor.

A chart tendered during arguments attempting to explain the status of each asset was disregarded, as most assertions were neither pleaded on oath nor supported by documents. Justice Dubash observed that such conduct amounted to “a complete disregard for the orders passed by this Court.”

Section 301: When Court’s Discretion Becomes Duty

Reproducing Section 301, the Court emphasised that the High Court has the power to suspend or remove an Executor when continuance would be detrimental to the estate or prejudicial to beneficiaries.

The Court held that this was not the first opportunity granted to the Executor. Even after the detailed 29 January 2025 order, which had recorded his failure yet extended indulgence, there was continued non-compliance.

In a telling observation, Justice Dubash declared:

“I refuse to be a mute spectator and stand by, allowing the Respondent to administer the estate, as per his own whims and fancies.”

The facts, the Court held, clearly satisfied the statutory requirements for removal under Section 301.

“The Testator Would Never Have Imagined Beneficiaries Waiting 30 Years”

Distinguishing precedents which caution that an Executor should not be lightly removed, the Court found that the present case revealed not mere delay but sustained misconduct and frustration of testamentary intent.

Noting that the widow had waited eight years after probate and passed away without receiving her full entitlement, the Court observed that the Testator “would never have imagined and wanted his beneficiaries to have to wait for almost 30 years to receive their legacy.”

Such conduct was held to be not only detrimental to the estate but destructive of the very purpose of the Will.

Executor Removed, Independent Administrator Appointed

Allowing the Interim Application, the Court removed the Respondent as Executor and appointed Justice Dilip Babasaheb Bhosale (Retd. Chief Justice, Allahabad High Court) as Administrator of the estate.

The Respondent was directed to hand over all records within one month and to file a true and full inventory on oath within 21 days. The Administrator has been tasked with completing distribution of the entire pending estate preferably within six months. The request for stay of the order was rejected.

Fiduciary Office Demands Accountability

This judgment reinforces that executorship is not a position of power but of trust. Once probate is granted, the Executor must administer the estate strictly in accordance with the Will and statutory mandates. Courts will not permit testamentary intent to be defeated by delay, conditionalities, or procedural evasions.

In declaring that it would not remain a “mute spectator,” the Bombay High Court has reaffirmed that fiduciary offices exist to serve the Will — not to control it.

Date of Decision: 18/02/2026