[ Chandrabhai K. Bhoir & Ors. v. Krishna Arjun Bhoir &
Ors., AIR 2009 SC 1645]
The question that arose for consideration was in respect of
application filed u/s.302 of the Indian Succession Act 1925.
One Mr. K. B. Mhatre executed a will on or about 1963, the
legatee whereunder are the respondents. On his expiry an application for grant
of probate in respect of the said will was filed by the respondents. The
appellant filed a caveat pursuant to which a suit was registered. In the said
suit a compromise was entered into by and between the parties. Subsequently
the appellant cancelled the said agreement. Thereafter pursuant to certain
orders passed by the Court in Chamber Summons the matter reached the Court by
appeal filed by the appellant. The appellant contended that the contract
between the parties could not be specifically enforced by the High Court while
exercising its testamentary jurisdiction.
The Court observed that the effect of termination of such
agreement entered into by and between the parties was required to be gone into
in an independent suit and not in a proceeding u/s.302 of the Act. The
testamentary Court in exercise of its jurisdiction u/s.302 of the Act cannot
enforce a contract qua
contract only because the executor is a party thereto.
The submission of the appellant that the decision of the
High Court constitutes res judicata cannot be accepted. Thus, the issue
did not attain finality. In 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.
As S. 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, S. 302 will have no
application.
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.
The appeal was allowed. The order of High Court was set
aside.
