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TMI Blog1993 (3) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onymous 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 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 held that the legal represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) 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 Hindu, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 the preserve the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Arbitrator 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 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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