MAGANLAL PARIKSHAWALA Vs. SAMSON SHALOM

JUDGEMENT

(1.) THIS is an application by the manager of a temple which learned Counsel states is a public temple, and the application purports to be under Section 301, Succession Act. The application asks for the removal of the opposite party Samson Shalom, a Jew, residing in Cawnpore on the ground that he has committed embezzlement and should be removed from the executorship of a will. The will is stated to be dated 12 October 1912 by one Mt. Parbati Bai by which she endowed the public temple with a sum of money. Learned Counsel states that shortly after 1912, Mt. Parbati Bai died and the executors, of whom there were three, purchased certain Government promissory notes and it is alleged that the embezzlement has been committed in regard to this by selling the Government promissory notes and misappropriating the proceeds. Learned Counsel also states that a criminal complaint has been filed.

(2.) NOW whatever the merits of the present petition may be, it is not a petition which in our opinion can be brought under Section 301, Succession Act. That section deals with the power of a High Court to suspend, remove or discharge any private executor or administrator. NOW it may be that the will named three persons as executors but it does not follow that the use of the word "executor" in the will was correct. It appears to us that the will has set up a permanent trust and that the position of these persons named in the will was that of trustees. As they are trustees of property for an endowment of a public temple in our opinion the proper procedure would be to obtain sanction from the Legal Remembrancer and take proceedings under Section 92, Civil P.C. The present application is therefore dismissed.