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2008(8) Supreme 571
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha and Cyriac Joseph, JJ.
Chandrabhai K. Bhoir & Ors. — Appellants
versus
Krishna Arjun Bhoir & Ors. — Respondents
Civil Appeal No. 6575 of 2008
[Arising out of SLP (Civil) No. 13488 of 2007]
Decided on : 07-11-2008
(b) Indian Succession Act, 1925 – Section 302 – A purported agreement of family arrangement which in effect and substance is a development agreement cannot form the part of a decree granting probate. (Para 18)
(c) Indian Succession Act, 1925 – Section 302 – The effect of termination of agreement entered into by and between the parties cannot be gone into in a proceeding u/s 302 – It is required to be gone into in an independent suit – The testamentary court cannot enforce a contract qua contract only because the Executor is a party thereto. (Para 19)
(d) Code of Civil Procedure, 1908 – Section 11 – Res judicata – An order passed without jurisdiction would be a nullity, a coram non judice and non est in the eye of law – Principles of res judicata, therefore, would not apply to such cases. (Para 20)
(1979) 2 SCC 34; (2005) 12 SCC 1; (2007) 2 SCC 481 – Relied upon.
Facts of the case :
1. 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. An agreement by way of family arrangement was also entered into by and between the parties.
2. Indisputably, the entire amount of Rs. 19,00,000/- as per the agreement was not paid. Appellants cancelled the said agreement by service of a legal notice dated 26.11.1998.
3. 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.
4. By an order dated 23.06.2006, the learned Single Judge allowed the respondents to withdraw the said Chamber Summons. A fresh Chamber Summons was taken out on 13.07.2006. This was allowed.
5. An appeal preferred thereagainst before the High Court has been dismissed by reason of the impugned judgment.
Finding of the Court :
Impugned judgment cannot be sustained.
Result : Appeal allowed.
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.
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.
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.
(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/-.”
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
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