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
JUDGMENT
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.
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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.”
*** *** ***
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
9and 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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