Full Judgment Text
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PETITIONER:
CHIRANJILAL SHRILAL GOENKA (DECEASED) THROUGH L RS.
Vs.
RESPONDENT:
JASJIT SINGH AND ORS.
DATE OF JUDGMENT18/03/1993
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
SAHAI, R.M. (J)
CITATION:
1993 SCR (2) 454 1993 SCC (2) 507
JT 1993 (2) 341 1993 SCALE (2)146
ACT:
Arbitration Act :
Sections 8, 14, 17, 20, 30 and 33-Arbitrator-Whether
entitled to enquire into execution and genuineness of will.
Indian Succession Act, 1925. Sections 213, 217, 222, 223
and 276-Will-Probate of jurisdiction of probate court to
enquire into execution and genuineness of will-Whether-
Arbitrator can enquire into such issues under Arbitration
Act.
HEADNOTE:
The appellant Shri Chiranjilal Shri Lal Goenka was involved
in several suits, one of which was the present appeal. He
died on November 25, 1985 leaving behind his last Will dated
October 29, 1982 in which he appointed his younger daughter
Mrs. Sushila N. Rungta as the sole executrix Radhey Shyam,
the natural son of Shri Mangal Chand Kedia and Mrs. Sita
daughter of Shri C.S. Goenka; claimed to be the adopted son
of Shri C.S. Goenka.
The applicant, executrix; Radhey Shyam and his wife filed
substitution applications under Order 22 Rule 3 CPC setting
up rival claims. When the dispute arose as to who should
represent the estate of Shri C.S. Goenka by order dated
October 7, 1991 this Court brought all the three on record
as legal representatives; and by a further order dated
November 1, 1991 by consent of parties appointed a retired
Chief Justice of the Bombay High Court as an Arbitrator to
settle the dispute as who would be the legal heirs to the
estate of late Chiranjilal Shri Lal Goenka. The arbitrator
entered upon the reference and on the riling of pleadings by
the parties framed diverse issues.
Issues No. 1 and 2 related to the two Wills and were : (1)
Does the claimant No. 1 prove. execution of the Will dated
29th Oct. 1982 and prove the same to be the last and genuine
Will of Shri G.S. Goenka. (2) If not does she prove the
execution of the Will dated 4.7.78 and prove the same
455
to be the last and genuine Will of the late Shri G.S.
Goenka. Simultaneous proceedings in the probate suit were
being pursued in Bombay High Court, and a Single Judge
expressed doubt whether the arbitrator had jurisdiction to
decide the probate suit. Similarly, on an application made
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before the arbitrator seeking clarification, he too stated
that with his appointment as arbitrator all the pending
suits in the schedule should be assumed to have been
referred for arbitration and that includes the probate suit
as well, but that he cannot give any clarification in that
behalf.
An Interlocutory Application was, therefore, moved in this
Court for clarification, and it was contended on behalf of
the applicant that the probate court had exclusive
jurisdiction to grant probate of the Will to the applicant
for due implementation of the directions contained in the
Will as the executrix, and that this issue cannot be
referred to arbitration and the arbitrator thereby is devoid
of jurisdiction to decide Issue Nos. 1 and 2 that had been
framed by him, and that the applicant had not consented to
refer the probate suit for arbitration.
The application was contested on behalf of the respondents
by contending that proceeding the order of the Court dated
November 1, 1991 the counsel for the respondents addressed a
letter to the counsel for the petitioner including the
probate suit for reference to arbitration, and this was to
obviate the litigation pending in all the courts as to who
were the legal heirs of Shri C.S.Goenka, and thereafter this
court appointed the arbitrator,’ that with a view to put an
end to the litigation in all the suits pending in different
courts, this Court appointed the arbitrator to decide all
the disputes in pending suits. It is, therefore, desirable
that the arbitrator should decide Issue Nos. 1 and 2 that
have been framed.
Disposing of the Application, this Court,
HELD : 1. Section 2(11) of Code of Civil Procedure 1908
defines "legal representatives" to mean a person who in law
represents the estate of a deceased person; and includes any
person who intermeddles with the estate of the deceased and
where a party sues or is sued in a representative character
the person on whom the estate devolves on the death of the
party so suing or sued. Order 22 rule 3 says that if one or
two or more plaintiffs dies and the right to sue survives,
the Court on an application made in this behalf, shall cause
the legal representatives of the deceased plaintiff
456
to be made a party and shall proceed with the suit. Mutatis
Mutandis by operation of Order 22 Rule 11 this rule applies
to the appellants at the appeal stage. Similarly, Order 22
Rule 4 applies in the case of death of one of several
defendants or of sole defendant and in case of a dispute
under Rule 5 such a question shall be determined by the
Court. [460H, 461A-B]
2. Inheritance is In some sort a legal and fictitious
continuation of the personality of the dead man, for the
prepresentation is in some sort identified by the law with
him who he represents. The rights which the dead man can no
longer own or exercise in propria persona and the
obligations which he can no longer in propria persona
fulfil, he owns exercises, and fulfils in the person of a
living substitute. To this extent, and in this fiction, it
may be said that legal personality of a man survives his
natural personality, until his obligations being duty
performed, and his property duly disposed of, his
representation among the living is no longer called for.
1461D]
3. The grant of Probate by a Court of competent
jurisdiction is in the nature of a proceeding in rem. So
long as the order remains in force it is conclusive as to
the due execution and validity of the will unless it is duly
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revoked as per law. It binds not only upon all the parties
made before the Court but also upon all other persons in all
proceedings arising out of the Will or claims under or
connected therewith. The decision of the Probate. Court,
therefore, is the judgment in rem. The probate granted by
the competent court is conclusive of the validity of the
Will until it is revoked and no evidence can be admitted to
impeach it except in a proceeding taken for revoking the
probate. [465D]
Slieoparsan Singh v. Ramnandan Prasad Singh, (1916) ILR 43
Cal. 694 PC and Narbharam Jivram v. Jayvallabh Harjiwan, AIR
1933 Bom. 469, approved. [465E-F]
4. It is settled law that a decree passed by a court
without jurisdiction on the subject matter or on the grounds
on which the decree made which goes to the root of its
jurisdiction or lacks inherent jurisdiction is a corum non
judice. A decree passed by such a court is a nullity and is
nonest. Its invalidity can be set up whenever it is sought
to be enforced or is acted upon as a foundation for a right,
even at the stage or execution or in collateral proceedings.
The defect of jurisdiction strikes at the very authority of
the court to pass decree which cannot be cured by consent or
457
waiver of the party. [467D]
A.R. Antulay v. R.S. Naik, [1988] 2 SCC 602; Bahadur Singh &
Anr. v. Muni Subrat Dass & Anr [1969] 2 SCR 432; Smt.
Kaushalya Devi and Ors. v. KL. Bansal, AIR 1970 SC 838;
Ferozi Lal Jain v. Man Mal & Anr, AIR 1979 SC 794 and Sushil
Kumar Mehta v. Gobind Rain Bohra (dead) through his Lrs, JT
1989 (suppl.) SC 329.
In the instant case, the applicant had consented to refer
for arbitration the dispute in the pending probate
proceedings, but consent cannot confer jurisdiction nor an
estoppel against statute. The other legatees in the Will
were not parties to it.
5. The Probate Court has been conferred with exclusive
jurisdiction to grant probate of the Will of the deceased
annexed to the petition (suit); on grant or refusal
thereof, it has to preserve the original will produced
before it. The grant of probate is final subject to appeal,
if any, or revocation if made in terms of the provision of
the Succession Act It is a judgment in rem and conclusive
and binds not only the parties but also the entire world.
The award deprives the parties of statutory right of appeal
provided under section 299. Thus the necessary conclusion
is that the Probate Court alone has exclusive jurisdiction
and the Civil Court on original side or the Arbitrator does
not get jurisdiction, even if consented to by the parties,
to adjudicate upon the proof or validity of the Will
propounded by the executrix, the appellant [468D-F]
6. The executrix was nominated expressly in the Will as a
legal representative entitled to represent the Estate of the
deceased but the heirs cannot get any probate before the
Probate Court. They are entitled only to resist the Claim
of the executrix of the execution and genuiness of the Will.
The grant of probate gives the executrix the right to
represent the estate of the deceased, the subject-matter in
other proceedings. This exposition or the law is only for
the purpose of finding the jurisdiction of the arbitrator
and not an expression of opinion on the merits in the
probate suit. [468G]
7. The Arbitrator cannot therefore proceed with the
probate suit to decide the dispute in Issue Nos. 1 and 2
framed by him. The High Court is to proceed with the
Probate suit, the Judge to fix the date and proceed day-to-
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day till it is concluded and decide the matter within six
months. Till
458
then the Arbitrator is not to decide Issue Nos. 1 and 2,
but at liberty to proceed with the other issues, to await
the decision of the probate Court and depending upon the
result thereon, conclude the findings on issue Nos.1 and 2
and then make the award and take the proceedings according
to law. [469H, 470A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: I.A. No. 3 of 1992.
IN
Civil Appeal No. 732 of 1973.
From the Judgment and Order dated 29.9.79 of the Delhi High
Court in Civil Writ 734 of 1971.
Satish Chandra, Pramod B. Agarwala and Mohinder Rupral for
the Appellants.
V.R. Reddy Additional Solicitor General, P. Chidambaram,
Syed Akhtar, C.L. Sahu, R.C. Bhalla, P. Parmeshwaran, C.V.S.
Rao, K. Swamy and E.C. Agarwala for the Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY. J. Shri Chiranjilal Shrilal Goenka was
involved in several suits and one of which is the pending
appeal at his behest. He died on November 25, 1985 leaving
behind last Will dated October 29.,1982 said to have been
executed in which he appointed his younger daughter Mrs.
Sushila N. Rungta as sole executrix of his Will. Radhey
Shyam claims to be the adopted son of Shri C.S. Goenka.
Radhey Shyam is the natural son of Shri Mangal Chand Kedia
and Mrs. Sita another daughter of Sri C.S. Goenka. The
applicant executrix; Radhey Shyam and his wife filed
substitution applications under order 22 Rule 3 CPC setting
up rival claims. When the dispute arose as to who would
represent the estate of Shri C.S. Goenka, by order dated
October 7, 1991 this Court brought all the three on record
as legal representatives. By further order dated November
1, 1991 this Court passed the following order
.lm15
" By consent of parties Justice V.S. Deshpande, retired
Chief Justice of the Bombay High Court is appointed as
arbitrator to settle the dispute as to who would be the
459
legal heirs to the estate of the late Chiranjilal Shrilal
Goenka."
The rest of the order is not necessary for the purpose of
this case, hence omitted. Pursuant thereto Shri Justice
V.S. Deshpande entered upon the arbitration. Preceding the
order counsel for Sri Radhey Shyam had enclosed a letter
giving details of all the pending suits and item No. 19,
Suit No. 65 of 1985, titled S.N. Rungta v. R. C Goenka, was
one such case. The schedule of the suits was annexed to the
order of appointment of the arbitrator. On filing the
respective pleadings, the arbitrator framed diverse issues.
Issues No. 1 and 2 relate to two Wills and are as under:
"1. Does Claimant No.1 prove execution of the
Will dated 29th (28th) October, 1982 and prove
the same to be the last and genuine Will of
late Shri G.S. Goenka.
2. If not does she prove the execution of
the Will dated
4.7.1978and prove the same to be the last and
genuine Will of the late Shri G.S. Goenka".
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Simultaneously proceedings in the probate suit is being
pursued in Bombay High Court where in the learned Judge, on
application, expressed doubt, whether arbitrator has
jurisdiction to decide probate suit. Similarly, on
application made before the arbitrator seeking
clarification, he too had stated that when the appointment
of him as arbitrator was made and all the pending
proceedings were referred to in the schedule, it would be
assumed that this Court applied its mind and referred to him
the probate suit as well but he cannot give any
clarification in that behalf. It would be expedient to the
applicant to seek clarification from this Court. Thus the
prayers in the application are :
"A. That this Hon’ble Court may be pleased to
allow the applicant to proceed with the
Probate Suit No. 65 of 1987 pending before the
Hon’ble High Court of Bombay in accordance
with law; and
B. to pass such order and other orders as
this Hon’ble Court may deem fit and proper in
the circumstances".
Shri Satish Chandra, learned Senior counsel for the
applicant contended, placing reliance on Gopi Rai v. B.N.
Rai, AIR 1930 Allahabad 840
460
Chellan Bhai v. Nandu Bhai, ILR 21 Bombay, 337 and Manmohini
Guha v. Banga Chandra Das, ILR 31 Cal. 357 that probate
court has exclusive jurisdiction to grant probate of the
Will to the applicant for due implementation of the
directions contained in the Will as the executrix. That
issue cannot be referred to arbitration and the arbitrator
thereby is devoid of jurisdiction to decide issuses Nos.1
and 2. He also further contended that the applicant had not
consented to refer the probate suit for arbitration.
Shri P. Chidambaram, learned Senior counsel for the
respondents contended that preceding the order of this Court
dated November 1, 1991, the counsel for the respondents
addressed a letter to the counsel for the petitioner
including the probate suit for reference to arbitration.
This was to obviate the litigation pending in all the courts
as to who are the leg heirs of Shri C.S. Goenka. Thereafter
this Court appointed Shri Justice S.V. Deshpande. The
contention, therefore, of the applicant that she did not
consent to refer the probate suit for arbitration is an
after thought and cannot be accepted. He further contended
that this Court, with a view to put an end to the litigation
in all the suits pending ’in different courts, appointed the
arbitrator to decide all the disputes in pending suits go
that it would bind them. The arbitrator had accordingly
framed Issues Nos. 1 and 2, referred to herein before which
pertinently relate to the Wills ’in’ the probate suit
alongwith other suits. Therefore, the arbitrator alone has
got jurisdiction. The award of the arbitrator would be
subject to approval or disapproval by this Hon’ble Court and
on putting its seal it would bind all the parties and the
courts including the probate court. Therefore, it is
expedient that instead of parallel proceedings before the
probate court and the arbitrator to be permitted to
continue, it is desirable that the arbitrator should decide
issues Nos.1 and 2 with other issues and determine as to who
would be the legal heirs and his decision would be binding
in the probate suit. If any clarification is necessary it
may be indicated accordingly.
Having given our anxious consideration we will proceed
further in deciding the scope and effect of the order passed
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by this Court. As seen the order of reference to the
arbitrator relates "to settle dispute as to who would be the
legal heirs to the estate of Shri C.S. Goenka". Section
2(11) of CPC Act 5 of 1908 defines legal representatives
means a person who in law represents the estate of a
deceased person, and includes any person who intermeddles
with the estate of the deceased and where a party sues or is
sued in a representatives character the person on whom the
estate
461
devolves on the death of the party so suing or sued. Order
22 rule 3 says that if one or two or more plaintiffs die and
the right to sue does not survive to the surviving plaintiff
or plaintiff,-, alone, or a sole plaintiff or sole surviving
plaintiffs dies and the right to sue survives, the Court on
an application made in this behalf, shall cause the legal
representatives of the deceased plaintiff to be made a party
and shall proceed with the suit. Mutatis-Mutandis by
operation of Order 22 Rule 11 this rule applies to the
appellants at the appeal stage. Similarly, Order 22 Rule 4
applies in the case of death of one of several defendants or
of sole defendant and in case of a dispute under Rule 5 such
a question shall be determined by the court.
Inheritance is in some sort a legal and fictitious
continuation of the personality of the dead man, for the
presentation is in some sort identified by the law with him
who he represents. The rights which the dead man can no
longer own or exercise in propria persona and the
obligations which he can no longer in propria person a
fulfil, he owns, exercise and fulfils in the persons of a
living substitute. To this extent, and in this fiction, it
may be said that legal personality of a man survives his
natural personality until his, obligation being duty
performed, and his property duly disposed of, his
representation among the living is no longer called for.
In Black’s Law Dictionary the meaning of the world ’Legal
Representative’ is : The term is its broadest sense means
one who stands in place of, and represents the interests of
another. A person who overseas the legal affairs of
another. Examples include the executors or administrator of
an estate and a court appointed guardian of a minor or
incompetent person.
Term "Legal representative" which is almost always held to
be synonymous with term "personal representative", means in
accident cases, member of family entitled to benefits under
Wrongful death statute. Unsatisfied claim and judgment
fund. In The Andhra Bank Ltd. v. R. Srinivasan and Ors.,
1963 (1) and. W.R.(S.C.) 14 this Court considered the
question whether the legatee under the Will is the legal
representative within the meaning of Section 2(11) of the
Code. It was held that it is well known that the expression
"Legal Representative" had not been defined in the Code of
1882 and that led to a difference of judicial opinion as to
its denotation. Considering the case law developed in that
behalf it was held that respondents 2 to 12, the legatees
under the Will of the estate are legal
462
representatives of the deceased Raja Bahadur and so it
follows that the estate of the deceased was sufficiently
represented by them when the judgment were pronounced.
In The Official Liquidator v. Parthasarathi Sinha and Ors.,
AIR 1983 SC 188 this Court considered whether the legal
representative would be bound by the liability for
misfeasance proceeding against the deceased. While
considering that question under section 50 CPC this Court
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held that the legal representative, of course, would not be
liable for any sum beyond the value of the estate of the
deceased in his hands. Mulla on CPC 14th Ed., Vol. I at
P.27 stated that a person on whom the estate of the deceased
devolves would be his legal representative- even if he is
not in actual possession of the estate. It includes heirs
and also persons who without title either as executors,
administrators were in possession of the estate of the
deceased. It is, therefore, clear that the term legal
representative is wide and inclusive of not only the heirs
but also intermeddlers of the estate of the deceased as well
as a person who in law represents the estate of the
deceased. It is not necessarily confined ’to heirs alone.
The executor, administrators, assigns or persons acquired
interest by devolution under Order 22 Rule 10 or legatee
under a Will, are legal representatives.
Section 3(f) of the Hindu Succession Act, 1956 defines
"heirs" means any person, male or female who is entitled to
succeed to the property of an intestate under this Act.
Section 8 thereof provides that the property of a male Hindu
dying intestate shall devolve according to the provisions of
this Chapter ’Chapter 11’ (Inestate succession) firstly upon
the heirs, being the relatives specified in Class 1 of the
Schedule......... Schedule provides Class 1 heirs are Son,
daughter, widow, mother............ Thus under the personal
law of Hindu Succession Act, if a Hindu dies intestate, the
heirs either male or female specified in Schedule 1 Class 1,
are heirs and succeed to the estate as per law. In’ their
absence, the next class or classes are entitled to succeed
to the property of an intestate under the Act. In Sudama
Devi and Ors. v. Jogendra Choudhary and Ors., AIR. 1987
Patna 239, (Full Bench) considered the question whether
father of the minor in possession of his property and who
himself was a party to the suit alongwith the minor is legal
representative. The minor died. The father was held per
majority to be legal representatives under section 2(11) of
the Code as an intermeddler. It must therefore be held that
not only that Class I heirs under Section 8 read with
Schedule of the Hindu Succession Act but also
463
the executor of the Will of the deceased Goenka are legal
representatives within the meaning of Section 2(11) of the
Code.
Section 213 of the Indian Succession Act (Act 39) of 1925
for short ’the Succession Act’ provides right to the
executor to obtain probate of the Will thus
"(1) No right as executor.... can be
established in an), Court of Justice, unless
court of competent jurisdiction in (India) has
granted probate of the will under which the
right is claimed with a copy of the Will
annexed. By operation of sub-section 2(i)
only in the case of wills made by any
Hindu .... where such wills are of the classes
specified in Cls. (a) and (b) of Sec. 57...
Section 57 provides that the provisions of
part which are set out in Schedule 111, shall,
subject to the restrictions and modifications
specified therein apply (a) to all wills
made by any Hlndu, on or after the first day
of September, 1870, within the local limits of
the ordinary original civil jurisdiction of
the High Court of Judicature at Madras and
Bombay... (c) to all wills and codicils made
by any Hindu on or after the first day of
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January, 1927, to which those provisions are
not applied by Cls. (a) and (b). In other
places the Dist. Court or Court to whom the
power is delegated alone are entitled to grant
probate.
Section 276 provides the procedure to obtain probate, namely
(1) application for probate .... with the Will annexed,
shall be made by a distinctly written in English.... the
will as the case may be, the particulars are the details
mentioned in’ Cls.(a) to’ (e) and further details provided
in sub-sections (2) and (3), the mention of the details
whereof are not material for the purpose of this case. The
petition shall be verified in the manner prescribed under
section 280 and also further to be verified by at least one
of the witnesses to the will in the manner and to the affect
specified therein. The Caveator is entitled to object to
its grant by operation of Section 284 When it is contested
Section 295 directs that probate proceedings shall take, as
nearly as may be, the form of a regular suit, according to
the provisions of C.P.C. and the petitioner for probate ....
shall be the plaintiff and the person who had appeared to
oppose the
464
grant shall be the defendant. Section 217 expressly
provides that save as otherwise provided by this Act or by
any other law for the time being in force, all grants or
probate .... with the will annexed .... shall be made or
carried out, as the case may be, in accordance with the
provisions of Part IX. Section 222 declares that (1) Probate
shall be granted only to an executor appointed by the will.
(2) The appointment may be expressed or by necessary
implication Section 223 prohibits grant of probates to the
persons specified therein. Section 224 gives power to
appoint several executors. Section 227 declares the effect
of probate thus:- Probate of a will when granted establishes
the will from the. death of the testator, and renders valid
all intermediate acts of the executor as such. Section 248
envisages grant of probate for special purposes, namely, if
an executor is appointed for any limited purpose specified
in the will, the probate shall be limited to that purpose,
and if he should appoint an attorney....... with the will
annexed, shall be limited accordingly.
Section 273 declares conclusiveness of probate thus :-
Probate shall have the effect over all the property and
estate moveable or immovable, of the deceased, throughout
the State in which the same is or are granted, and shall be
conclusive as to the representative title against the
debtors of the deceased and all persons holding property
which belongs to him, and shall afford full indemnity to all
debtors, paying their debts and all persons delivering up
such property to the person to whom such probate have been
granted. The further details are not necessary for the
purpose of this case. Under section 294 it shall be the
duty of the court to preserve original Wills. Section 299
gives right of appeals against an order or the decree of the
court of probate. By operation of Section 211(1) the
executor of a deceased person is his legal representative
for all purposes, and all the property of the deceased
person vests in him as such.
In Inswardeo Narain Singh v. Smt. Kanta Devi & Ors., AIR
1954 SC 280 this court held that the court of probate is
only concerned with the question as to whether the document
put forward as the last will and testament of a deceased
person was duly executed and attested in accordance with law
and whether at the time of such execution the testator had
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sound disposing mind. The question whether a particular
bequest is good or bad is not within the purview of the
Probate Court. Therefore the only issue in a probate
proceeding relates to the genuineness and due execution of
the Will and the court itself is under duty to determine it
and preserve
465
the preserve the original Will in its custody. The
Succession Act is a self contained code in so far as the
question of making an application for probate, grant or
refusal of probate or an appeal carried against the decision
of the probate court. This is clearly manifested in the
fasecule of the provision of Act. The probate proceedings
shall be conducted by the probate court in the manner
prescribed in the Act and in no other ways. The grant of
probate with a copy of the Will annexed establishes con-
clusively as to the appointment of the executor and the
valid execution of the will. Thus it does no more than
establish the factum of the will and the legal character of
the executor. Probate court does not decide any question,
of title or of the existance of the property itself.
The grant of a Probate by Court of competent jurisdiction is
in the nature of a proceeding in rem. So long as the order
remains in force it is conclusive as to the due execution
and validity of the will unless it is duly revoked as per
law. It binds not only upon all the parties made before the
court but also upon all other persons in all proceedings
arising out of the Will or claims under or connected
therewith. The decision of the Probate Court, therefore, is
the judgment in rem. The probate granted by the competent
court is conclusive of the validity of the Will until it is
revoked and no evidence can be admitted to impeach it except
in a proceeding taken for revoking the probate. In
Sheoparsan Singh v. Ramnandan Prasad Singh, (1916) ILR 43
Cal., 694 PC the judicial committee was to consider, whether
the Will which had been affirmed by a Court of competent
jurisdiction, would not be impugned in a court exercising
original jurisdiction (Civil Court) in suit to declare the
grant of probate illegal etc. The privy council held that
the Civil Court has no jurisdiction to impugne the grant of
probate by the court of competent jurisdiction. In that
case the subordinate court of Muzafarbad was held to be had
no jurisdiction to question the validity of the probate
granted by the Calcutta High Court. In Narbheram Jivram v.
Jevallabh Harjivan, AIR 1933 Bombay, 469 probate was granted
by the High Court exercising probate jurisdiction. A civil
suit on the Original Side was filed seeking apart from
questioning the probate, also other reliefs. The High Court
held that when a probate was granted., it operates upon the
whole estate and establishes the Will from the death of the
testator. Probate is conclusive evidence not only of the
factum, but also of the validity of the Will and after the
probate has been granted, in is incumbent on a person who
wants to have the Will declared null and void, to have the
probate revoked before proceeding further. That could
466
be done only before the Probate Court and not on the
original side of the High Court. When a request was made to
transfer the suit to the Probate Court, the learned Judge
declined to grant the relief and stayed the proceeding on
the original side. Thus it is conclusive that the court of
probate alone had jurisdiction and is competent to grant
probate to the will annexed to the petition in the manner
prescribed under the Succession Act. That court alone is
competent to deal with the probate proceedings and to grant
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or refuse probate of the annexed will. It should keep the
original will in its custody. The probate thus granted is
conclusive unless it is revoked. It is a judgment in rem.
We agree with Mr. Chidambaram that the applicant had
consented to refer the dispute for arbitration of dispute in
the pending probate proceedings, but consent cannot confer
jurisdiction nor an estoppel against statute. The other
legatees in the will were not parties to it. In A.R.
Antulay VI R.S. Naik, [1988] 2 SCC 602 when a Constitution
Bench directed the High Court Judge to try the offences
under the Prevention of Corruption Act with which the
petitioner therein was charged and the trial was being
proceeded with, he ’questioned by way of writ petition the
jurisdiction of this Court to give such a direction. A
Bench of seven judges per majority construed meaning of the
word ’jurisdiction’, Mukerjee, J. as he then was, speaking
per himself. Oza and Natarajan, JJ. held that the power to
create or enlarge jurisdiction is legislative in character.
So also the power to confer a right of appeal or to take
away a right of appeal. The Parliament alone can do it, by
law and not Court, whether interior or both combine, can
enlarge the jurisdiction of a Court and divest a person of
his rights of appeal or revision. Ranganath Misra, J. as he
then was, held that jurisdiction comes solely from the law
of the land and cannot be exercised otherwise. In this
country, jurisdiction can be exercised only when provided
for either in the Constitution or in the laws made by the
Legislature. Jurisdiction is thus the authority or power of
the Court to deal with a matter and make an order carrying
binding force in the facts. Oza, J. supplementing the
question held that the jurisdiction to try a case could only
be conferred by law enacted by the legislature. The Supreme
Court could not confer jurisdiction if it does not exist in
law. Ray, J. held that the Court cannot confer a
jurisdiction on itself which is not provided in the law. In
the dissenting opinion Venkatachaliah, J., as he then was to
lay down that the expression jurisdiction or prior
determination is a "verbal coat of many colours". In the
case of a Tribunal an error of law might
467
become not merely an error in jurisdiction but might partake
of the character of an error of jurisdiction. But,
otherwise, jurisdiction is a ’legal shelter’ and a power to
bind despite a possible error in the decision. The
existence of jurisdiction does not depend on the correctness
of its exercise. The authority to decide embodies a
privilege to bind despite error, a privilege which is
inherent in and indispensable to every judicial function.
The characteristic attribute of a judicial act is that it
binds whether it be right or it be wrong. Thus this Court
laid down as an authoritative proposition of law that the
jurisdiction could be conferred by statute and this Court
cannot confer jurisdiction or an authority on a tribunal.
In that case this Court held that Constitution Bench has no
power to give direction contrary to Criminal Law Amendment
Act, 1952. The direction per majority was held to be void.
It is settled law that a decree passed by a court without
jurisdiction on the subject matter or on the grounds on
which the decree made which goes to the root to its
jurisdiction of lacks inherent jurisdiction is a corum non
judice. A decree passed by such a court in a nullity and is
nonest. Its invalidity can be set up whenever it is sought
to be enforced or is acted upon as a foundation for a right,
even at the stage of execution or in collateral proceedings.
The defect of jurisdiction strikes at the very authority of
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the court to pass decree which cannot be cured by consent or
waiver of the party. In Bahadur Singh & Anr. v. Muni Subrat
Dass & Anr., [1969] 2 SCR 432 an eviction petition was filed
under the Rent Control Act on the ground of nuisance. The
dispute was referred to the arbitration. An award was made
directing the tenant to run the workshop upto a specified
time and thereafter to remove the machinery and to deliver
vacant possession to the landlord. The award was signed by
the arbitrators, the tenant and the landlord. It was filed
in the court. A judgment and decree were passed in terms of
the award. On expiry of the time and when the tenant did
not remove the machinery nor delivered vacant possession,
execution was levied under Delhi and Ajmer Rent Control Act.
It was held that a decree passed in contravention of Delhi
and Ajmer Rent Control Act was void and the landlord could
not execute the decree. The same view was reiterated in
Smt. Kaushalya Devi and Ors. v. KL. Bansal, AIR 1970 SC
838. In Ferozi Lal Jain v. Man Mal & Anr., AIR 1979 SC 794
a compromise dehore grounds for eviction was arrived at
between the parties under section 13 of the Delhi and Ajmer
Rent Control Act. A decree in terms thereof was passed.
The possession was not delivered and execution was
468
laid. It was held that the decree was nullity and,
therefore, the tenant could not be evicted. In Sushil Kumar
Mehta v. Gobind Ram Bohra (dead) through his Lrs. JT 1989
(SUPPI.) SC.329 the Civil Court decreed eviction but the
building was governed by Haryana Urban (Control of Rent &
Eviction) Act 11 of 1973. It was held that the decree was
without jurisdiction and its nullity can be raised in
execution. In Union of India v. M/s. Ajit Mehta and
Associates. Pune and Ors., AIR 1990 Bombay 45 a Division
Bench to which Sawant, J. as he then was, a member was to
consider whether the validity of the award could be
questioned on jurisdictional issue under section 30 of the
Arbitration Act. The Division Bench held that Clause 70 of
the, Contract provided that the Chief Engineer shall appoint
an engineer officer to be sole arbitrator and unless both.
parties agree in writing such a reference shall not take
place until after completion of the works or termination or
determination of the Contract. Pursuant to this contract
under section 8 of the Act, an Arbitrator was appointed and
award was made, Its validity was questioned under section
30 thereof. The Division Bench considering the scope of
Sections 8 and 20(4) of the Act and on review of the case
law held that Section 8 cannot be invoked for appointment of
an Arbitrator unilaterally but be available only. under
section 20(4) of the Act. Therefore, the very appointment
of the Arbitrator without consent of both parties was held
void being without jurisdiction. The Arbitrator so
appointed inherently lacked jurisdiction and hence the award
made by such Arbitrator is nonest. In Chellan Bhai’s case
Sir C. Farran, Kt., C.J. of Bombay High Court held that the
Probate Court alone is to determine whether probate of an
alleged will shall issue to the executor named in it and
that the executor has no power to refer the question of
execution of Will to arbitration. It was also held that the
executor having propounded a Will, and applied for probate,
a caveat was filed denying the execution of the alleged
Will, and the matter was duly registered as a suit, the
executor and the caveatrix subsequently cannot refer the
dispute to arbitration, signing a submission paper, but such
an award made pursuant thereto was held to be without
jurisdiction.
In Gopi Rai’s case, Sulaiman, J. as he then was, speaking
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for the Division Bench held that the Civil Court has no
jurisdiction to allow the dispute relating to the
genuineness of a Will in a probate proceedings pending
before him to be referred to the arbitration of an
arbitrator. He has got to be specified that the Will is a
genuine document before the order of granting probate is
passed. He cannot delegate those functions to a
465
private individual and decide the point through him.
Similar was the view laid in Manmohini Guha’s case, Sarda
Kanta Das v. Gobinda Das 6 Indian. Cases 912 and Khelawati
v. Chet. Ram Khub Rain, AIR 1952 Punjab 67. When the plea
of estoppel was raised, Sulaiman. J. in Gopi Rai’s case
held that "We cannot hold that there is any estoppel against
Gopi Rai on this question of jurisdiction. That is a matter
which we can take into account only when ordering costs.’,’
The decision in Nalla Ramudamma v. Nalla Kasi Naidu, AIR
1945 Madras 269 relied on by Shri Chidambaram does not help
his clients. Therein the question was the matrimonial
dispute. The Arbitrator had decided at the request of the
parties and a decree was passed. It was held that the
dispute would come under section 21 of the Arbitration Act.
The question of jurisdiction was not raised therein. Equal-
ly the decision in Mt. Mahasunader Kuer and Anr. v. Ram
Ratan Prasad Sahi. AIR 1916 Patna 382 is also of little
assistance. The question of adoption, it was held, cannot
be decided in the probate proceedings.
On a conspectus of the above legal scenario we conclude that
the Probate Court has been conferred with exclusive
jurisdiction to grant probate of the Will of the deceased
annexed to the petition (suit); on grant or refusal thereof,
it has to preserve the original Will produced before it.
The grant of probate is final subject to appeal, if any, or
revocation if made in terms of the provisions of the
Succession Act. It is a judgment in rely and conclusive and
binds not only the parties but also the entire world The
award deprives the parties of statutory right of appeal
provided under section 299. Thus the necessary conclusion
is that the Probate Court alone has exclusive jurisdiction
and the Civil Court on original side or the Arbitrator does
not get jurisdiction even if consented to by the parties, to
adjudicate upon the proof or validity of the Will propounded
by the executrix, the applicant. It is already seen that
the executrix was nominated expressly in the will is a legal
representative entitled to represent the Estate‘ of the
deceased but the heirs cannot get any probate before the
Probate Court. They are entitled only to resist the claim
of the executrix of the execution and genuineness of the
Will. The grant of probate gives the executrix the right to
represent the estate of the deceased, the subject-matter in
other proceedings. We make it clear that our exposition of
law is only for the purpose of finding the jurisdiction of
the arbitrator and not an expression of opinion on merits in
the probate suit.
From this perspective we are constrained to conclude that
the Ar.
470
bitrator cannot proceed with the probate suit to decide the
dispute in issues Nos.1 and 2 framed by him. Under these
circumstances the only course open in the case is that the
High Court is requested to proceed with the probate suit
No.65/85 pending on the probate jurisdiction of the High
Court of Bombay and decide the same as expeditiously as
possible. The learned Judge is requested to fix the date
and proceed day-to-day at his convenience till it is
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concluded and decide the matter according to law preferably
within six months. Till then the Arbitrator is requested
not to decide issue Nos.1 and 2. He may be at liberty to
proceed with the other issues. He is requested to await the
decision of the Probate Court; depending upon the result
thereon, he would conclude his findings on Issues Nos.1 and
2 and then make the award and take the proceedings according
to law. The application is accordingly ordered but without
cost.
N.V.K Application disposed of.
471