AIR 1935 BOMBAY 84

Bombay High Court

Hon'ble Judge(s): B. J. Wadia , J

(A) Executor - Mahomedan executor can establish right without taking probate. There is no statutory obligation on a Mahomedan executor to take out probate of the testator's will. A Mahomedan executor can establish his right in a Court without taking such probate: 1922 Bom 392 and 8 Bom 241, Rel. on.(Para 86C1) (B) Executor - Liability for wilful default - Onus of proving wilful default is on party alleging it-Also loss or damage to estate from such wilful default must be proved. Wilful default can only be decreed against executors in respect of something which the executors could have received but for their wilful default or neglect, and such default or neglect must be proved by the party alleging it. He must not merely give proof of such default but prove clearly and affirmatively at least one act of wilful default to the satisfaction of the Court before the Court can make a reference for taking accounts on that footing. It must also be shown that the estate has suffered loss or damage, and that such loss or damage is due to circumstances of wilful neglect or default on the part of the executrors.(Para 86C2) (C) Executor - Investing money of estate in....