SMT. RADHIKA BHARGAVA, A HINDU INDIAN INHABITANT OF U.P., RESIDING AT 3/11, VISHNUPURI, KANPUR 208 002, U.P. Vs. DR. ARJUN SAHGAL, A HINDU INHABITANT OF U.K. RESIDING AT 31, THE RIDING, KENTON NEWCASTLE UPON TYNE, NE3 4LQ, UNITED KINGDOM

JUDGEMENT

(1.) This order will dispose of the Miscellaneous Petition filed in a pending probate Petition.

(2.) The Miscellaneous Petition seeks the removal of the first two Respondents, Dr. Arjun Sahgal and Bharat Sahgal, the probate Petitioners, as executors a Will dated 30th Sept. 2001 of one Malati Srivastav who died unmarried on 31st Aug. 2005 with no lineal descendants. I have not found it necessary to examine the grounds of removal themselves. In the view that I have taken, and for the reasons that follow, I have held that the Miscellaneous Petition itself is not maintainable in its present form. I propose, however, to leave all contentions open to the Applicants for being taken in an appropriate proceeding unaffected by the present order. For convenience, I propose to refer to the Petitioners in the Miscellaneous Petition as "the Applicants " and the first two Respondents as "the Executors ".

(3.) There is no dispute that the two Executors are named as such in the Will in question. It is also well settled that an executor is a creation of the Will that appoints him, and that he holds office as an executor only because of his appointment as such in the Will. The appointment is personal. Dr. Saraf for the Respondents in the Miscellaneous Petition is correct in pointing out that the very definition of an executor under Sec. 2(c) means a person to whom execution of the last Will of a deceased person is by the Testator's appointment, "confided ". That word itself tells us of the personal nature of the investiture of an executor.