JUDGMENT

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 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 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:

"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 legal heirs to the estate of late Chiranjilal Shrilal Goenka."

2. 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 Shri 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 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 C.S. Goenka.

2. If not does she prove the execution of the will dated July 4, 1978 and prove the same to be the last and genuine will of the late Shri C.S. Goenka."

3. Simultaneously proceedings in the probate suit is being pursued in Bombay High Court wherein the learned Judge, on application, expressed doubt whether arbitrator has jurisdiction to decide probate suit. Similarly, onapplication 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 Honble Court may be pleased to allow the applicant to proceed with the Probate Suit No. 65 of 1987 pending before the Honble High Court of Bombay in accordance with law; and

B. to pass such order and other orders as this Honble Court may deem fit and proper in the circumstances."

4. Shri Satish Chandra, learned senior counsel for the applicant contended, placing reliance on Gopi Rai v. B.N. Rai{AIR 1930 All 840, Ghellabhai Atmaram v. Nandubai{ILR 21 Bom 336} and Monmohini 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 issues 1 and 2. He also further contended that the applicant had not consented to refer the probate suit for arbitration.

5. 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