1. This is an appeal against an order of our brother Srinivasa Aiyangar, J., dismissing an application under Section 301 of the Indian Succession Act, XXXIX of 1925, to remove the executor Thangavelu Mudaliar appointed under the will of Vaidyalinga Mudaliar, dated the 21st Oct., 1925. An interim order appointing a receiver was made by our brother Beasely, J. When the matter came on for final disposal before Srinivasa Aiyangar, J., he held that the matters which had to be determined required a considerable quantity of evidence and the determination of various facts and issues some of which were really complicated. He was also of opinion that the petitioner has got another remedy for the removal of the executor by way of a regular suit and that the object of this section was merely to provide a summary remedy for such removal in addition to that by suit. No evidence was taken by the learned Judge in respect of the allegations made by the petitioner. On the view he has taken he dismissed the petition. He also expressed a suspicion that the petition was not made in good faith but was actuated by some other motives. Now Section 301 of the Succession Act, re-enacts Section 4 of the Administrator General's Act V of 1902. That Act itself reproduces the provisions of the Judicial Trustees' Act of England, 59 and 60 Vict. Ch. 35. Until the Judicial Trustees' Act of 1896 was passed in England and the Administrator General's Act V of 1902 was passed in India, the Courts had already no power to remove an executor. If the character of executor has ceased and he becomes merely a trustee he might be removed from his position as a trustee but' if he continued to be executor he could not be removed from his position as executor. This is the view of Kekewich, J., in Ratcliff, In re. (1898) LR 2 Ch. 352. At page 356, he says:
That is to say, the Court can under this Act, do what it could not do before--remove an executor.
2. The same view was taken in India by Tyabji. J., in Amerdiand Madhowji, Exparte I.L.R. (1905) B 188. He quotes Lewin on Trusts which says:
An executor is regarded in some sense as a trustee, but he cannot, like a trustee, be discharged, even by the Court from his executor-ship. When' the funeral' and testamentary expenses, debts, and legacies have been satisfied, and the surplus has been invested upon the trusts of the will, the executor then drops that character and becomes a trustee in the proper sense, and may then be discharged from the office like any other trustee.
3. Mr. Duraisami Aiyar appearing for the respondent argues that even prior to the Judicial Trustees Act of 1896 there was certainly some jurisdiction in the Court of Chancery by which the estate can be protected. He concedes that an executor cannot be removed but in the case of a bankrupt-executor or in case of waste or improper disposition of the property by the executor the Court of Chancery can appoint a receiver. But the Court will not interfere merely because an executor is poor. See Williams on Executors, 10th Edition, page 1615 and Ingpen on Executors, 2nd Edition, page 51. But this seems to be a remedy for a very limited kind and it is of a very indirect character when the Court restrains an executor from acting merely by the appointment of a receiver. Now, much wider powers are conferred upon Courts both in India and in England for the removal of an executor. Mr. Doraisami Aiyar 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 S. .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 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. The fact that Beasley, J., thought that a receiver ought to be appointed shows that in his opinion there was good reason for the appointment of a receiver. The learned Judge (Srinivasa Aiyangar, J.) does not say that the allegations made by the petitioner in this case do not make out a prima facie case, even if proved. That being so, we think the Court ought to enquire into the allegations made by the petitioner; and if the facts proved do not make out a proper case it is another matter. But it may not be open for a Court to dismiss the petition without any kind of enquiry into the allegations made. As to the apprehension that the Original Side may be flooded by applications of this kind, all that we can at present say is we do not know how far the apprehension is justified. In many cases the allegations themselves may be prima facie frivolous and in such cases petitions may fail without even an enquiry. But assuming that there may be a large number of such applications, that is no ground for refusing an obvious remedy now conferred upon the parties by the Legislature. I do not think it is necessary to pursue this kind of argument any further. The result is, the order of the learned Judge will be set aside and the case will go back to the Original Side for enquiry into the petition.
4. We are informed that the receiver appointed by Beasley, J., has been discharged as a result of the dismissal of the petition. Now that the order dismissing the petition is set aside, we think it is safe in the interest of the estate and in the interests of all parties that the receiver should continue. We do not mean to express any opinion as to the allegations and counter-allegations made by the parties against each other at this stage. Seeing that there has been a receiver up to the dismissal of the petition and his discharge was really a result of the dismissal of' the petition, we think it is proper that he should continue now that the order dismissing the petition is set aside.
5. The receiver will act under the directions of the Court.
6. Costs up to this stage will abide the result.
7. Stamp paid on appeal will be refunded.