REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6575          OF 2008 [Arising out of SLP (Civil) No. 13488 of 2007]

Chandrabhai K. Bhoir & Ors. …Appellants

Versus

Krishna Arjun Bhoir & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Application of Section 302 of the Indian Succession Act, 1925 (for

short “the Act”) is in question in this appeal which arises out of a judgment

and order dated 5.02.2007 passed by a Division Bench of the High Court of

Judicature at Bombay in Appeal No. 889 of 2006.

3. The basic fact of the matter is not in dispute.

One Kanha Barik Mhatre executed a Will on or about 8.09.1963; the

legatees whereunder are the respondents herein.  He expired on 6.08.1974.   

An application for grant of probate in respect of the said Will was

filed  by  the  respondents.   Appellants  filed  a  caveat  thereto,  pursuant

whereto a suit was directed to be registered.  In the said suit, a compromise

was entered into by and between the parties; the terms whereof inter alia

are:

“1. The parties have settled their disputes as per agreement executed today…

2. The  parties  agree  that  even  though  the Probate  will  be  granted  to  the  Petitioner unconditionally  the  terms  of  the  Will  stand changed  and/  or  altered  on  terms  of  agreement Annexure ‘A’ hereto.

3. The  parties  agree  that  they  have  no objection if the probate is granted unmodified by the terms of the agreement Ex. ‘A’.  However, the parties agree and undertake to this Hon’ble Court that  their  rights  and  obligations  would  be regulated  by  the  terms  of  Agreement  Ex.  ‘A’ hereto and that an order should be sought on the said terms.

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4. In view of the above agreements and terms the Caveators/ Caveatorics withdraw their caveat.”

However,  an  agreement  by  way  of  family  arrangement  was  also

entered into by and between the parties on or about 2.12.1992; Clauses 2, 3

and 5 whereof are relevant for our purpose, which read as under:

“2. The parties  of the First  Part  has  agreed to allow the party of the second part to develop the entire property including the share of the party of the First  Part  and also further  agree to sell  their share  to  the  party  of  the  second  part  for  Rs. 19,00,000/-.

3. The said amount is to be paid in the manner stated hereinafter:

(a) Rs.  6,00,000/-  (Rupees  Six  Lakhs  only) shall be paid by the Developer on the execution of these presents.

(b) Rs.  3,00,000/-  (Rupees  three  lakhs  only) within a period of six months from the date of the execution of these presents.

(c) Rs.  3,00,000/-  (Rupees  three  lakhs  only) within a period of 12 months from the date of the execution of these presents.

(d) Rs.  3,00,000/-  (Rupees  three  lakhs  only) within a period of 18 months from the date of the execution of these presents.

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(e) Rs.  4,00,000/-  (Rupees  four  lakh  only) within a period of 24 months from the date of the execution of these presents.”

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5. The party of the other part hereby agrees to pay the said amount as stated above to the party of the first part and further agrees to pay interest at the rate of 18% per annum on such amount which not paid on due date from the due date till payment thereof and till  that  date the said unpaid amount along  with  accrued  interest  shall  constitute  a charge over the property mentioned herein.”

Clause 6 contained in the recital part of the said agreement reads as

under:

“6. The party of the second part agrees to accept the  share  of  the  parties  of  the  1st  part  in  the property at Dahisar more particularly described in the  schedule  hereto  and  further  agree  that aggregate share of all the parties of the first part is by  consent  valued  at  Rs.  19,00,000/-  and  the parties of the first part have agreed to allow party of  the  second  part  to  develop  the  entire  land including the share of the parties of the first part which they have agreed to sell to the party of the second part or his nominees at the agreed price of Rs. 19,00,000/-.”

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4. Indisputably,  the  entire  amount  of  Rs.  19,00,000/-  was  not  paid.

Appellants cancelled the said agreement by service of a legal notice dated

26.11.1998.

5. Respondent No. 1 herein was the Executor of the said Will.  He took

out a Chamber Summons purported to be in terms of Section 302 of the Act

praying inter alia for the following reliefs:

“(a) That the Plaintiff  be directed to deposit  in this  Hon’ble  Court  the  sum  of  Rs.  13,78,422/- towards the share of the Defendant Nos. 2 to 4 and the  Respondent  Nos.  1  to  5  and  7  to  12  in  the estate of the deceased Kanha Barik Mhatre; (b) That it may be declared that on such deposit being  made  the  plaintiff  be  discharged  of  his obligation as Executor of the Will of the deceased Kanha Barik Mhatre and that the Defendant Nos. 2 to  4  and  the  Respondent  Nos.  1  to  12  have  no right, title and interest in the estate of the deceased and  particularly  in  respect  of  the  immovable property  more  particularly  described  in  the Schedule annexed hereto and marked Exhibit ‘A’; (c) ad-interim order in terms of prayer clauses (a) and (b) above.”

6. The  said  Chamber  Summons  was  dismissed  by  an  order  dated

11.08.2005.  An intra-court appeal was preferred thereagainst,  which was

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marked  as  Appeal  No.  897  of  2005.   By  a  judgment  and  order  dated

22.11.2005, the Division Bench held:

“10. It was not disputed before us that probate to the Will of the deceased Kanha Barik Mhatre has been  granted  by this  Court  in  Testamentary and intestate  jurisdiction  on  9th  July,  1998.   In  the probate granted by this Court on 9th July, 1998, the present Appellant has been appointed as a sole Executor as to the Will executed by Kanha Barik Mhatre, Section 302 of the Indian Succession Act, 1925 empowers the Testamentary Court to give to the Executor any general or special directions with regard to the estate of the deceased Testator.  The Probate  having  already  been  granted,  the  issue whether the sole Executor could be discharged of his obligation on deposit of the amount as set out in  the Chamber Summons was  surely within  the exclusive jurisdiction of the Testamentary Court. The  question  is  not  whether  in  the  facts  and circumstances set out in the affidavit in support of Chamber  Summons,  the  Appellant  at  all  could have been discharged as sole executor that would be seen by the learned Chamber Judge at the time of hearing of Chamber Summons.  However, that was  not  seen  and  the  learned  Chamber  Judge dismissed  the  Chamber  Summons on the  ground that  the  Chamber  Summons  was  beyond  the jurisdiction  of  the  Testamentary  Court.   The approach of the learned Chamber Judge cannot be countenanced.   It  was  for  the  learned  Chamber Judge to decide whether the sole Executor of the Will of the deceased Kanha Barik Mhatre could at all be discharged of his obligations as the Executor of  the  Will  as  this  could only be decided in  the Testamentary jurisdiction.”

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7. On  the  said  premise,  the  appeal  was  allowed.   The  order  dated

11.08.2005 was set aside and the matter was remitted to the Court of learned

Chamber Judge for hearing of the Chamber Summons afresh.   

8. By an order dated 23.06.2006, the learned Single Judge allowed the

respondents to withdraw the said Chamber Summons.

9.  However,  a  fresh  Chamber Summons bearing  No. 54 of  2006 was

taken  out  on  13.07.2006.   In  the  said  notice  of  motion,  the  Constituted

Attorney  of  the  Defendant  Nos.  2  and  3,  in  an  affidavit  affirmed  on

28.08.2006, stated as under:

“…I say that as against the total consideration of Rs. 19 lakhs, the sum of Rs. 13.5 lakhs was paid and balance amount was not paid.  I say that the amount was to be paid within 24 hours from the date  of  the  Agreement.   I  say  that  the  full consideration was not paid within 24 hours from the date of the Agreement i.e. on 2/3/1993.  I say that the amount was to be paid by 1/3/1995.  I say that  in  the  said  circumstances  the  Original Defendants terminated the said Agreement for sale by  Advocate’s  notice  dated  26/11/1998  and  the Plaintiff  also  replied  said  notice  dated 21/12/1998…”

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10. The  learned  Single  Judge  exercising  testamentary  jurisdiction,  by

reason of a judgment and order dated 28.09.2006, held as under:

“Thus,  the  probate  of  the  Will  granted  by  this Court without modifying the Will.  But the terms agreed  between  the  parties  for  withdrawal  of caveat were made part of the order of the Court. Perusal of the agreement entered into between the parties  which  is  mentioned  in  the  consent  terms shows that the amounts to be paid by the Petitioner to the parties who are mentioned in the agreement. The time when these amounts were to be paid is also  mentioned in  the  agreement.   Clause (5)  of this agreement deals with the event of parties who are  obligated  to  pay  amount  commits  default  in making payment…”

The said Chamber Summons was allowed issuing various directions,

which are as under:

“(i) The  Petitioner  to  deposit  the  amount mentioned  in  prayer  clause  (a)  of  the  chamber summons with the Prothonotary and Senior Master of this Court within a period of two weeks from today with due notice to the respondents. (ii) In  case  the  respondents  apply  before  the Prothonotary  & Senior  Master  of  this  Court  for withdrawal of the amount  within a period of six months from the date of deposit, the Prothonotary

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and Senior Master of this Court shall permit them to withdraw the amount. (iii) On  deposit  being  made  immediately  the amount  shall  be  invested  in  fixed  deposit  in  a nationalised bank.  In case respondents apply for withdrawal,  the  amount  be  paid  to  them  with accruals, if any. (iv) In  case  the  respondents  institute proceedings in appropriate court within a period of six  months  and  secure  appropriate  orders,  the disposal  of the amount shall  be governed by the order that may be passed by the competent court. (v) In  case  neither  the  respondents  apply  for withdrawal  of  the  amount  nor  Prothonotary  and Senior  Master  of  this  Court  receives  any  order from  the  competent  Court  in  relation  to  the disposal  of  the  amount,  the  Prothonotary  and Senior  Master  of  this  Court  shall  permit  the petitioner to withdraw the amount, with accruals.”

11. The Prothonotary & Senior Master of the court accepted the security

furnished by the respondents herein.

An appeal  preferred  against  the order  dated  28.09.2006 before  the

High Court has been dismissed by reason of the impugned judgment.

Appellants are, thus, before us.

12. Mr. Shekhar Naphade, learned senior counsel appearing on behalf of

the appellants, would submit:

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(i) Section 302 of the Act cannot have any application in the instant case

inasmuch as the rights and obligations of the parties are governed by

the terms of agreement having regard to the fact that by reason of the

order of the court on the terms of settlement or otherwise, the Will

remained unaltered.   

(ii) The development agreement which was a contract between the parties

could not have been specifically enforced by the High Court, while

exercising its testamentary jurisdiction.

13. Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the

respondents,  on  the  other  hand,  would  contend  that  the  consent  terms

formed part  of  the  decree  passed  in  the  suit  and as  in  terms thereof  the

Executor was required to administer the Will, Section 302 of the Act would

be applicable.   

Drawing  our  attention  to  the  well-settled  legal  principle  that  the

probate  is  granted  against  the  whole  world,  it  was  argued  that  the

consequences of non-payment of the amount under the contract having been

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stipulated  therein  itself,  viz.,  payment  of  interest,  the  application  under

Section 302 of the Act was maintainable.

It was submitted that  the property in question  being subject  to  the

Will  and  as  by  reason  of  clause  5  of  the  agreement,  a  charge  has  been

created  on  the  property,  in  absence  of  any  proceeding  initiated  by  the

appellants to revoke the grant of probate or to reopen the decree and/ or to

enforce the charge, a direction by the court in that behalf was imperative.

Our attention was furthermore drawn to the fact that the purported

termination of the contract was made in 1998, i.e., after five years of the

passing of the decree and in view of the fact that now the entire amount

together with interest has been paid, the impugned judgment should not be

interfered with.

It was contended that in the earlier round of litigation, the judgment

of  the  Division  Bench  upholding  the  maintainability  of  the  proceedings

under  Section  302  of  the  Act  having  been  upheld  and  the  same having

attained finality, the said question cannot now be gone into once over again.

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14. Section 302 of the Act reads as under:

“302 - Directions to executor or administrator  

Where  probate  or  letters  of  administration  in respect  of  any  estate  has  or  have  been  granted under this Act, the High Court may, on application made to it,  give to  the executor  or  administrator any general or special directions in regard to the estate or in regard to the administration thereof.”

15. A probate is granted in respect of a Will.  An Executor is appointed to

administer the estate of the testator in terms thereof.  The Will ordinarily

should  be  administered  having  regard  to  the  last  wishes  of  the  testator

himself.

16. Appellant  No.  1  herein  was  a  caveator.   He  withdrew  his  caveat

which was noticed by the court in terms of the order dated 11.02.1993.  The

probate was granted unconditionally.   

However, Clause 1 of the consent terms appears to be vague.  How

the terms of the Will can be changed or altered in terms of the agreement

defies all comprehension.  Both would be contradictory to or inconsistent

with each other.   

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17. A probate when granted binds the whole world.  It is a judgment in

rem.  The Executor, therefore, has to administer the estate of the testator in

terms of the Will and not on the basis of the settlement arrived at by and

between the parties which would be inconsistent with the terms of the Will.

In case of any conflict between the terms of the Will and the settlement, the

former will  prevail.   The court,  thus,  in exercise of its  jurisdiction under

Section 302 of the Act can enforce only the terms of the Will and not the

terms of the agreement.   

18. The agreement although formed part of the terms of settlement, but it

may only be held to be a collateral document.  A purported agreement of

family  arrangement  which  in  effect  and  substance  is  a  development

agreement cannot form the part of a decree granting probate.   

Admittedly, a sum of Rs. 19,00,000/- was to be paid in consideration

of  the  appellants’  allowing  the  Executor  to  purchase  his  share  in  the

property for the aforementioned sum.  The terms of payment had also been

settled thereby.  There is a dispute between the parties as regards the actual

amount to be paid by the Executor to the appellant.

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19. The effect of non-payment, according to the respondents, is governed

by Clause 5 of the agreement in terms whereof interest at the rate of 18% on

the unpaid amount could be levied from the due date till date of payment of

the unpaid amount along with the accrued interest, which would constitute a

charge over the property.  The said agreement is not registered.  Whether by

reason of such a provision, a valid charge can be created would be separate

question.  But the fact remains that rightly or wrongly the said agreement

stood terminated.  The effect of termination of such agreement entered into

by and between the parties is required to be gone into in an independent suit

and not in a proceeding under Section 302 of the Act.  The testamentary

court  in  exercise  of  its  jurisdiction  under  Section  302 of  the  Act  cannot

enforce a contract qua contract; only because the Executor is a party thereto.

From the prayers made in the notice of  motion,  it  would appear that  the

Executor  had  sought  for  direction  against  himself.   Such  a  prayer  was

whether  maintainable  in  terms  of  Section  302  of  the  Act  had  not  been

adverted to by the courts below.

20. Submission  of  Mr.  Ranjit  Kumar that  the  decision  of  the  Division

Bench of the High Court dated 22.11.2005 constitutes res judicata cannot be

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accepted.  It is one thing to say that an application under Section 302 of the

Act would be maintainable but it is another thing to say that as to whether

by reason  of  the  Chamber  Summons,  the  respondent  No.  1  would  have

discharged  as  sole  Executor  was  dependant  upon  the  facts  and

circumstances of the case.

21. Thus, the said issue, in our opinion, did not attain finality.  In any

view of the matter, an order passed without jurisdiction would be a nullity.

It will be a coram non judice.  It is non est in the eye of law.  Principles of

res judicata would not apply to such cases.  [See  Chief Justice of Andhra

Pradesh and Others v. L.V.A. Dixitulu (1979) 2 SCC 34, Union of India v.

Pramod Gupta (2005) 12 SCC 1 and National Institute of Technology and

Ors. v. Niraj Kumar Singh (2007) 2 SCC 481]

22. Thus,  if  Section  302 of the  Act was not  attracted  in  the facts  and

circumstances  of  this  case,  the  principles  of  res  judicata  would  also  not

apply.

If the agreement was not a part of the Will, in our opinion, Section

302 will have no application.   

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23. It is not necessary for us also to go into the question in regard to the

effect of delay in termination of the agreement.  We must, however, make a

distinction between the two functions of the respondent No. 1; one as an

Executor of the Will and the other as a developer.  Whereas his action as an

Executor is subject to the direction of the testamentary court, his action as a

developer is not.  An Executor or a Trustee would not put him in such a

position in which his personal interest and his duties under the Will come in

conflict with each other.  The testamentary court must give effect to the Will

and not  an  agreement  by and  between  the  Executor  and  the third  party,

which would be contrary to the wishes of the testator.

24. For the  reasons  aforementioned,  the impugned judgment  cannot  be

sustained which is set aside accordingly.  The appeal is allowed.  No costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; November 07, 2008

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