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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