CHANDRABHAI K. BHOIR vs KRISHNA ARJUN BHOIR

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(UK) 482

2009 (1) UAD 167
SUPREME COURT OF INDIA
Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Cyriac Joseph
Civil Appeal No. 6575 of 2008
CHANDRABHAI K. BHOIR & ORS. – Appellants
Versus
KRISHNA ARJUN BHOIR & ORS. – Respondents
Decided on : 07.11.2008

For the Appellants :Mr. Shekhar Naphade, Sr. Adv., Mr. S.R. Mishra, Mr. Vimal Chandra S. Dave, Mr. S.N. Singh and Ms. Neelam Kalsi, Advocates
For the Respondents:Ranjit Kumar, Sr. Adv., Mr. Santosh Paul, Ms. Aanchal Jain, Ms. Arvind Gupta, Mr. M.J. Paul, Mr. Yashwardhan Divekar and Mr. K. Rajeev, Advocates

Headnote:(A) Indian Succession Act, 1925, Sec. 302 — Application for grant of probate — Probate is granted in respect of a Will — Executor appointed to administer the estate of the testator in terms thereof — Ordinarily Will should be administered having regard to the last wishes of the testator himself — The terms of a Will cannot be changed or altered in terms of an agreement entered into between the parties — 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 — If this agreement was not a part of the Will, Sec. 302 of the Indian Succession Act will have no application. (Paras 15, 17, 18, 19, 22)
       (B) Res-judicata — Principles of — Application of — An order passed without jurisdiction would be a nullity — It will be a coram non judice — It is nonest in the eye of law — The principles of res judicata would not apply to such cases. (Paras 20, 21, 22)
       ¼v½ Hkkjrh; mRrjkf/kdkj vf/kfu;e] 1925] /kkjk&302 & bPNki= Lohdr djus gsrq izkFkZuk i= nk;j fd;k x;k & olh;r ds vuq:i gh bPNki= Lohdr fd;k x;k & mldh 'krks± ds vuqlkj olh;r fy[kus okys dh lEifRr dk izcU/k djus gsrq dk;Zikyd dh fu;qfDr dh xbZ & lk/kkj.kr;k olh;r fy[kus okys dh Lo;a dh vafre bPNk ds vuqlkj gh olh;r dk dk;kZUo;u fd;k tkuk pkfg, & olh;r dh 'krks± dks mHk;i{kksa ds e/; gq, fdlh djkj ds vk/kkj ij cnyk ugha tk ldrk & ,d bPNk i= tc Lohdr dj fn;k tkrk gS rks og lkjh nqfu;k ij ykxw gksrk gS & ;g ,d mipkfjr fu.kZ; gksrk gS & blfy, dk;Zikyd dks olh;r dh 'krks± ds vuqlkj gh e`rd dh lEifRr dk izcU/ku djuk gksrk gS uk fd olh;r ls lEcfU/kr i{kdkjksa ds e/; gq, fdlh vkilh bdjkjukes ds vk/kkj ij & ml n'kk esa tc olh;r dh 'krks± rFkk bdjkjukes ds e/; dksbZ fookn gks rks olh;r gh ekuh tk,xh & bl izdkj /kkjk&302 ds rgr U;k;ky; vius dk;Z{ks= dk ikyu djrs gq, olh;r dks ykxw dj ldrh gS uk fd bdjkjukes dh 'krks± dks & ;fn ;g bdjkjukek olh;r dk dksbZ Hkkx ugha Fkk rks /kkjk&302 Hkkjrh; mRrjkf/kdkj vf/kfu;e dk dksbZ izHkko ugha gksxkA
        ¼izLrj 15] 17] 18] 19] 22½
       ¼c½ iwoZfuf.kZr ds fl)kUr dk izHkkoh gksuk & dksbZ Hkh vkns'k tks dk;Z{ks= ds fcuk ikfjr fd;k x;k gks 'kwU; ekuk tk,xk & ;g vf/kdkfjrk foghu U;k;ky; ekuk tk,xk & dkuwu dh n`f"V esa bl dk dksbZ ewY; ugha gS & ,sls ekeyksa esa iwoZfuf.kZr dk fl)kUr ykxw ugha gksxkA ¼izLrj 20] 21] 22½

JUDGMENT

S.B. Sinha, J.— 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/Caveatories 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/-.

4. 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.”

... ... ...

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 the Act praying inte

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2008 Supreme(UK) 482

2009 (1) UAD 167SUPREME COURT OF INDIAHon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Cyriac JosephCivil Appeal No. 6575 of 2008CHANDRABHAI K. BHOIR & ORS. – Appellants VersusKRISHNA ARJUN BHOIR & ORS. – RespondentsDecided on : 07.11.2008

Cases Referred (2)

2009 (1) UAD 167
SUPREME COURT OF INDIA
Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Cyriac Joseph
Civil Appeal No. 6575 of 2008
CHANDRABHAI K. BHOIR & ORS. – Appellants
Versus
KRISHNA ARJUN BHOIR & ORS. – Respondents
Decided on : 07.11.2008