V. SAMBANDAM Vs. V. NATARAJAN

JUDGEMENT

(1.) THE purported application is claimed to have been filed under Section 301 of the Indian Succession Act by a beneficiary under a will for the removal of an executor appointed under the terms of the will. The question for consideration is one of procedure to be followed on the Original Side of this Court the applicant herein contending that Section 301 authorises him to move this Court for the removal of an executor by means of an application as distinct from an original petition. On the other hand, the office takes the view, based upon Order 2, Rule 1 and Order 14, Rule 1 of the Rules of the High Court, 1956, that when a prayer is made under Section 301 of the Indian Succession Act, it should be made in the form of a petition only and not by an application, because it constitutes commencement of fresh proceedings, in relation to the subject -matter of the request.

(2.) MR . Anantarama Mudaliar, learned Counsel for the applicant, strongly relies on the use of the word ' Application ' in Section 301 of the Act and contends that whenever the statute contemplated a petition, it used the word ' petition ' and since the word ' petition ' is not present in Section 301 and only the expression, ' application ' is present in this section, he is entitled to come by way of an application alone as distinct from an original petition for the purpose of a prayer which can be obtained under Section 301 of the Act. It is necessary to refer to Section 301. That section says:

(3.) UNDER these circumstances, I am unable to accept the argument advanced by the learned Counsel that the request made by him under Section 301 in the particular case must be treated as an interlocutory application in a pending proceeding, namely, T. O. S. No. 6 of 1966. Probably one simple answer to this submission will be that T. O. S. No. 6 of 1966 is no longer pending on the file of this Court, having come to an end with the grant of the probate in favour of the executor concerned.