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PETITIONER:

CHIRANJILAL SHRILAL GOENKA (DECEASED) THROUGH L RS.

Vs.

RESPONDENT:

JASJIT SINGH AND ORS.

DATE OF JUDGMENT18/03/1993

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

SAHAI, R.M. (J)

CITATION:

1993 SCR (2) 454 1993 SCC (2) 507

JT 1993 (2) 341 1993 SCALE (2)146

ACT:

Arbitration Act :

Sections 8, 14, 17, 20, 30 and 33-Arbitrator-Whether

entitled to enquire into execution and genuineness of will.

Indian Succession Act, 1925. Sections 213, 217, 222, 223

and 276-Will-Probate of jurisdiction of probate court to

enquire into execution and genuineness of will-Whether-

Arbitrator can enquire into such issues under Arbitration

Act.

HEADNOTE:

The appellant Shri Chiranjilal Shri Lal Goenka was involved

in several suits, one of which was the present appeal. He

died on November 25, 1985 leaving behind his last Will dated

October 29, 1982 in which he appointed his younger daughter

Mrs. Sushila N. Rungta as the sole executrix Radhey Shyam,

the natural son of Shri Mangal Chand Kedia and Mrs. Sita

daughter of Shri C.S. Goenka; claimed to be the adopted son

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 should

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; and by a further order dated

November 1, 1991 by consent of parties appointed a retired

Chief Justice of the Bombay High Court as an Arbitrator to

settle the dispute as who would be the legal heirs to the

estate of late Chiranjilal Shri Lal Goenka. The arbitrator

entered upon the reference and on the riling of pleadings by

the parties framed diverse issues.

Issues No. 1 and 2 related to the two Wills and were : (1)

Does the claimant No. 1 prove. execution of the Will dated

29th Oct. 1982 and prove the same to be the last and genuine

Will of Shri G.S. Goenka. (2) If not does she prove the

execution of the Will dated 4.7.78 and prove the same

455

to be the last and genuine Will of the late Shri G.S.

Goenka. Simultaneous proceedings in the probate suit were

being pursued in Bombay High Court, and a Single Judge

expressed doubt whether the arbitrator had jurisdiction to

decide the probate suit. Similarly, on an application made

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before the arbitrator seeking clarification, he too stated

that with his appointment as arbitrator all the pending

suits in the schedule should be assumed to have been

referred for arbitration and that includes the probate suit

as well, but that he cannot give any clarification in that

behalf.

An Interlocutory Application was, therefore, moved in this

Court for clarification, and it was contended on behalf of

the applicant that the probate court had exclusive

jurisdiction to grant probate of the Will to the applicant

for due implementation of the directions contained in the

Will as the executrix, and that this issue cannot be

referred to arbitration and the arbitrator thereby is devoid

of jurisdiction to decide Issue Nos. 1 and 2 that had been

framed by him, and that the applicant had not consented to

refer the probate suit for arbitration.

The application was contested on behalf of the respondents

by contending that proceeding the order of the 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, and this was to

obviate the litigation pending in all the courts as to who

were the legal heirs of Shri C.S.Goenka, and thereafter this

court appointed the arbitrator,' that with a view to put an

end to the litigation in all the suits pending in different

courts, this Court appointed the arbitrator to decide all

the disputes in pending suits. It is, therefore, desirable

that the arbitrator should decide Issue Nos. 1 and 2 that

have been framed.

Disposing of the Application, this Court,

HELD : 1. Section 2(11) of Code of Civil Procedure 1908

defines "legal representatives" to mean a person who in law

represents the estate of a deceased person; and includes any

person who intermeddles with the estate of the deceased and

where a party sues or is sued in a representative character

the person on whom the estate devolves on the death of the

party so suing or sued. Order 22 rule 3 says that if one or

two or more plaintiffs dies and the right to sue survives,

the Court on an application made in this behalf, shall cause

the legal representatives of the deceased plaintiff

456

to be made a party and shall proceed with the suit. Mutatis

Mutandis by operation of Order 22 Rule 11 this rule applies

to the appellants at the appeal stage. Similarly, Order 22

Rule 4 applies in the case of death of one of several

defendants or of sole defendant and in case of a dispute

under Rule 5 such a question shall be determined by the

Court. [460H, 461A-B]

2. Inheritance is In some sort a legal and fictitious

continuation of the personality of the dead man, for the

prepresentation is in some sort identified by the law with

him who he represents. The rights which the dead man can no

longer own or exercise in propria persona and the

obligations which he can no longer in propria persona

fulfil, he owns exercises, and fulfils in the person of a

living substitute. To this extent, and in this fiction, it

may be said that legal personality of a man survives his

natural personality, until his obligations being duty

performed, and his property duly disposed of, his

representation among the living is no longer called for.

1461D]

3. The grant of Probate by a Court of competent

jurisdiction is in the nature of a proceeding in rem. So

long as the order remains in force it is conclusive as to

the due execution and validity of the will unless it is duly

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revoked as per law. It binds not only upon all the parties

made before the Court but also upon all other persons in all

proceedings arising out of the Will or claims under or

connected therewith. The decision of the Probate. Court,

therefore, is the judgment in rem. The probate granted by

the competent court is conclusive of the validity of the

Will until it is revoked and no evidence can be admitted to

impeach it except in a proceeding taken for revoking the

probate. [465D]

Slieoparsan Singh v. Ramnandan Prasad Singh, (1916) ILR 43

Cal. 694 PC and Narbharam Jivram v. Jayvallabh Harjiwan, AIR

1933 Bom. 469, approved. [465E-F]

4. 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 of its

jurisdiction or lacks inherent jurisdiction is a corum non

judice. A decree passed by such a court is 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 or 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

457

waiver of the party. [467D]

A.R. Antulay v. R.S. Naik, [1988] 2 SCC 602; Bahadur Singh &

Anr. v. Muni Subrat Dass & Anr [1969] 2 SCR 432; Smt.

Kaushalya Devi and Ors. v. KL. Bansal, AIR 1970 SC 838;

Ferozi Lal Jain v. Man Mal & Anr, AIR 1979 SC 794 and Sushil

Kumar Mehta v. Gobind Rain Bohra (dead) through his Lrs, JT

1989 (suppl.) SC 329.

In the instant case, the applicant had consented to refer

for arbitration the dispute in the pending probate

proceedings, but consent cannot confer jurisdiction nor an

estoppel against statute. The other legatees in the Will

were not parties to it.

5. The Probate Court has been conferred with exclusive

jurisdiction to grant probate of the Will of the deceased

annexed to the petition (suit); on grant or refusal

thereof, it has to preserve the original will produced

before it. The grant of probate is final subject to appeal,

if any, or revocation if made in terms of the provision of

the Succession Act It is a judgment in rem and conclusive

and binds not only the parties but also the entire world.

The award deprives the parties of statutory right of appeal

provided under section 299. Thus the necessary conclusion

is that the Probate Court alone has exclusive jurisdiction

and the Civil Court on original side or the Arbitrator does

not get jurisdiction, even if consented to by the parties,

to adjudicate upon the proof or validity of the Will

propounded by the executrix, the appellant [468D-F]

6. The executrix was nominated expressly in the Will as a

legal representative entitled to represent the Estate of the

deceased but the heirs cannot get any probate before the

Probate Court. They are entitled only to resist the Claim

of the executrix of the execution and genuiness 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. This exposition or the law is only for

the purpose of finding the jurisdiction of the arbitrator

and not an expression of opinion on the merits in the

probate suit. [468G]

7. The Arbitrator cannot therefore proceed with the

probate suit to decide the dispute in Issue Nos. 1 and 2

framed by him. The High Court is to proceed with the

Probate suit, the Judge to fix the date and proceed day-to-

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day till it is concluded and decide the matter within six

months. Till

458

then the Arbitrator is not to decide Issue Nos. 1 and 2,

but at liberty to proceed with the other issues, to await

the decision of the probate Court and depending upon the

result thereon, conclude the findings on issue Nos.1 and 2

and then make the award and take the proceedings according

to law. [469H, 470A-B]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: I.A. No. 3 of 1992.

IN

Civil Appeal No. 732 of 1973.

From the Judgment and Order dated 29.9.79 of the Delhi High

Court in Civil Writ 734 of 1971.

Satish Chandra, Pramod B. Agarwala and Mohinder Rupral for

the Appellants.

V.R. Reddy Additional Solicitor General, P. Chidambaram,

Syed Akhtar, C.L. Sahu, R.C. Bhalla, P. Parmeshwaran, C.V.S.

Rao, K. Swamy and E.C. Agarwala for the Respondents.

The Judgment of the Court was delivered by

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 Sri 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

.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

459

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, 1982 and prove

the same to be the last and genuine Will of

late Shri G.S. Goenka.

2. If not does she prove the execution of

the Will dated

4.7.1978and prove the same to be the last and

genuine Will of the late Shri G.S. Goenka".

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Simultaneously proceedings in the probate suit is being

pursued in Bombay High Court where in the learned Judge, on

application, expressed doubt, whether arbitrator has

jurisdiction to decide probate suit. Similarly, on

application 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 Hon'ble Court may be pleased to

allow the applicant to proceed with the

Probate Suit No. 65 of 1987 pending before the

Hon'ble High Court of Bombay in accordance

with law; and

B. to pass such order and other orders as

this Hon'ble Court may deem fit and proper in

the circumstances".

Shri Satish Chandra, learned Senior counsel for the

applicant contended, placing reliance on Gopi Rai v. B.N.

Rai, AIR 1930 Allahabad 840

460

Chellan Bhai v. Nandu Bhai, ILR 21 Bombay, 337 and Manmohini

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 issuses Nos.1

and 2. He also further contended that the applicant had not

consented to refer the probate suit for arbitration.

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 are the leg heirs of Shri C.S. Goenka. Thereafter

this Court appointed Shri Justice S.V. Deshpande. The

contention, therefore, of the applicant that she 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 will proceed

further in deciding the scope and effect of the order passed

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by this Court. As seen the order of reference to the

arbitrator relates "to settle dispute as to who would be the

legal heirs to the estate of Shri C.S. Goenka". Section

2(11) of CPC Act 5 of 1908 defines legal representatives

means a person who in law represents the estate of a

deceased person, and includes any person who intermeddles

with the estate of the deceased and where a party sues or is

sued in a representatives character the person on whom the

estate

461

devolves on the death of the party so suing or sued. Order

22 rule 3 says that if one or two or more plaintiffs die and

the right to sue does not survive to the surviving plaintiff

or plaintiff,-, alone, or a sole plaintiff or sole surviving

plaintiffs dies and the right to sue survives, the Court on

an application made in this behalf, shall cause the legal

representatives of the deceased plaintiff to be made a party

and shall proceed with the suit. Mutatis-Mutandis by

operation of Order 22 Rule 11 this rule applies to the

appellants at the appeal stage. Similarly, Order 22 Rule 4

applies in the case of death of one of several defendants or

of sole defendant and in case of a dispute under Rule 5 such

a question shall be determined by the court.

Inheritance is in some sort a legal and fictitious

continuation of the personality of the dead man, for the

presentation is in some sort identified by the law with him

who he represents. The rights which the dead man can no

longer own or exercise in propria persona and the

obligations which he can no longer in propria person a

fulfil, he owns, exercise and fulfils in the persons of a

living substitute. To this extent, and in this fiction, it

may be said that legal personality of a man survives his

natural personality until his, obligation being duty

performed, and his property duly disposed of, his

representation among the living is no longer called for.

In Black's Law Dictionary the meaning of the world 'Legal

Representative' is : The term is its broadest sense means

one who stands in place of, and represents the interests of

another. A person who overseas the legal affairs of

another. Examples include the executors or administrator of

an estate and a court appointed guardian of a minor or

incompetent person.

Term "Legal representative" which is almost always held to

be synonymous 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

462

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

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held that the legal representative, of course, would not be

liable for any sum beyond the value of the estate of the

deceased in his hands. Mulla on CPC 14th Ed., Vol. I at

P.27 stated that a person on whom the estate of the deceased

devolves would be his legal representative- even if he is

not in actual possession of the estate. It includes heirs

and also persons who without title either as executors,

administrators were in possession of the estate of the

deceased. It is, therefore, clear that the term legal

representative is wide and inclusive of not only the heirs

but also intermeddlers of the estate of the deceased as well

as a person who in law represents the estate of the

deceased. It is not necessarily confined 'to heirs alone.

The executor, administrators, assigns or persons acquired

interest by devolution under Order 22 Rule 10 or legatee

under a Will, are legal representatives.

Section 3(f) of the Hindu Succession Act, 1956 defines

"heirs" means any person, male or female who is entitled to

succeed to the property of an intestate under this Act.

Section 8 thereof provides that the property of a male Hindu

dying intestate shall devolve according to the provisions of

this Chapter 'Chapter 11' (Inestate succession) firstly upon

the heirs, being the relatives specified in Class 1 of the

Schedule......... Schedule provides Class 1 heirs are Son,

daughter, widow, mother............ Thus under the personal

law of Hindu Succession Act, if a Hindu dies intestate, the

heirs either male or female specified in Schedule 1 Class 1,

are heirs and succeed to the estate as per law. In' their

absence, the next class or classes are entitled to succeed

to the property of an intestate under the Act. In Sudama

Devi and Ors. v. Jogendra Choudhary and Ors., AIR. 1987

Patna 239, (Full Bench) considered the question whether

father of the minor in possession of his property and who

himself was a party to the suit alongwith the minor is legal

representative. The minor died. The father was held per

majority to be legal representatives under section 2(11) of

the Code as an intermeddler. It must therefore be held that

not only that Class I heirs under Section 8 read with

Schedule of the Hindu Succession Act but also

463

the executor of the Will of the deceased Goenka are legal

representatives within the meaning of Section 2(11) of the

Code.

Section 213 of the Indian Succession Act (Act 39) 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 Hlndu, 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

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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) application for probate .... with the Will annexed,

shall be made by a distinctly written in English.... the

will as the case may be, the particulars are the details

mentioned in' Cls.(a) to' (e) and further details provided

in sub-sections (2) and (3), the mention of the details

whereof are not material for the purpose of this case. The

petition shall be verified in the manner prescribed under

section 280 and also further to be verified by at least one

of the witnesses to the will in the manner and to the affect

specified therein. The Caveator is entitled to object to

its grant by operation of Section 284 When it is contested

Section 295 directs that probate proceedings shall take, as

nearly as may be, the form of a regular suit, according to

the provisions of C.P.C. and the petitioner for probate ....

shall be the plaintiff and the person who had appeared to

oppose the

464

grant shall be the defendant. Section 217 expressly

provides that save as otherwise provided by this Act or by

any other law for the time being in force, all grants or

probate .... with the will annexed .... shall be made or

carried out, as the case may be, in accordance with the

provisions of Part IX. Section 222 declares that (1) Probate

shall be granted only to an executor appointed by the will.

(2) The appointment may be expressed or by necessary

implication Section 223 prohibits grant of probates to the

persons specified therein. Section 224 gives power to

appoint several executors. Section 227 declares the effect

of probate thus:- Probate of a will when granted establishes

the will from the. death of the testator, and renders valid

all intermediate acts of the executor as such. Section 248

envisages grant of probate for special purposes, namely, if

an executor is appointed for any limited purpose specified

in the will, the probate shall be limited to that purpose,

and if he should appoint an attorney....... with the will

annexed, shall be limited accordingly.

Section 273 declares conclusiveness of probate thus :-

Probate shall have the effect over all the property and

estate moveable or immovable, of the deceased, throughout

the State in which the same is or are granted, and shall be

conclusive as to the representative title against the

debtors of the deceased and all persons holding property

which belongs to him, and shall afford full indemnity to all

debtors, paying their 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

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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

465

the preserve the original Will in its custody. The

Succession Act is a self contained code in so far as the

question of making an application for probate, grant or

refusal of probate or an appeal carried against the decision

of the probate court. This is clearly manifested in the

fasecule of the provision of Act. The probate proceedings

shall be conducted by the probate court in the manner

prescribed in the Act and in no other ways. The grant of

probate with a copy of the Will annexed establishes con-

clusively as to the appointment of the executor and the

valid execution of the will. Thus it does no more than

establish the factum of the will and the legal character of

the executor. Probate court does not decide any question,

of title or of the existance of the property itself.

The grant of a Probate by Court of competent jurisdiction is

in the nature of a proceeding in rem. So long as the order

remains in force it is conclusive as to the due execution

and validity of the will unless it is duly revoked as per

law. It binds not only upon all the parties made before the

court but also upon all other persons in all proceedings

arising out of the Will or claims under or connected

therewith. The decision of the Probate Court, therefore, is

the judgment in rem. The probate granted by the competent

court is conclusive of the validity of the Will until it is

revoked and no evidence can be admitted to impeach it except

in a proceeding taken for revoking the probate. In

Sheoparsan Singh v. Ramnandan Prasad Singh, (1916) ILR 43

Cal., 694 PC the judicial committee was to consider, whether

the Will which had been affirmed by a Court of competent

jurisdiction, would not be impugned in a court exercising

original jurisdiction (Civil Court) in suit to declare the

grant of probate illegal etc. The privy council held that

the Civil Court has no jurisdiction to impugne the grant of

probate by the court of competent jurisdiction. In that

case the subordinate court of Muzafarbad was held to be had

no jurisdiction to question the validity of the probate

granted by the Calcutta High Court. In Narbheram Jivram v.

Jevallabh Harjivan, AIR 1933 Bombay, 469 probate was granted

by the High Court exercising probate jurisdiction. A civil

suit on the Original Side was filed seeking apart from

questioning the probate, also other reliefs. The High Court

held that when a probate was granted., it operates upon 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

466

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

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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 consent cannot confer

jurisdiction nor an estoppel against statute. The other

legatees in the will were not parties to it. In A.R.

Antulay VI R.S. Naik, [1988] 2 SCC 602 when a Constitution

Bench directed the High Court Judge to try the offences

under the Prevention of Corruption Act with which the

petitioner therein was charged and the trial was being

proceeded with, he 'questioned by way of writ petition the

jurisdiction of this Court to give such a direction. A

Bench of seven judges per majority construed meaning of the

word 'jurisdiction', Mukerjee, J. as he then was, speaking

per himself. Oza and Natarajan, JJ. held that the power to

create or enlarge jurisdiction is legislative in character.

So also the power to confer a right of appeal or to take

away a right of appeal. The Parliament alone can do it, by

law and not Court, whether interior or both combine, can

enlarge the jurisdiction of a Court and divest a person of

his rights of appeal or revision. Ranganath Misra, J. as he

then was, held that jurisdiction comes solely from the law

of the land and cannot be exercised otherwise. In this

country, jurisdiction can be exercised only when provided

for either in the Constitution or in the laws made by the

Legislature. Jurisdiction is thus the authority or power of

the Court to deal with a matter and make an order carrying

binding force in the facts. Oza, J. supplementing the

question held that the jurisdiction to try a case could only

be conferred by law enacted by the legislature. The Supreme

Court could not confer jurisdiction if it does not exist in

law. Ray, J. held that the Court cannot confer a

jurisdiction on itself which is not provided in the law. In

the dissenting opinion Venkatachaliah, J., as he then was to

lay down that the expression jurisdiction or prior

determination is a "verbal coat of many colours". In the

case of a Tribunal an error of law might

467

become not merely an error in jurisdiction but might partake

of the character of an error of jurisdiction. But,

otherwise, jurisdiction is a 'legal shelter' and a power to

bind despite a possible error in the decision. The

existence of jurisdiction does not depend on the correctness

of its exercise. The authority to decide embodies a

privilege to bind despite error, a privilege which is

inherent in and indispensable to every judicial function.

The characteristic attribute 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

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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. The

dispute was referred to the arbitration. An award was made

directing the tenant to run the workshop upto a specified

time and thereafter to remove the machinery and to deliver

vacant possession to the landlord. The award was signed by

the arbitrators, the tenant and the landlord. It was filed

in the court. A judgment and decree were passed in terms of

the award. On expiry of the time and when the tenant did

not remove the machinery nor delivered vacant possession,

execution was levied under Delhi and Ajmer Rent Control Act.

It was held that a decree passed in contravention of Delhi

and Ajmer Rent Control Act was void and the landlord could

not execute the decree. The same view was reiterated in

Smt. Kaushalya Devi and Ors. v. KL. Bansal, AIR 1970 SC

838. In Ferozi Lal Jain v. Man Mal & Anr., AIR 1979 SC 794

a compromise dehore grounds for eviction was arrived at

between the parties under section 13 of the Delhi and Ajmer

Rent Control Act. A decree in terms thereof was passed.

The possession was not delivered and execution was

468

laid. It was held that the decree was nullity and,

therefore, the tenant could not be evicted. In Sushil Kumar

Mehta v. Gobind Ram Bohra (dead) through his Lrs. JT 1989

(SUPPI.) SC.329 the Civil Court decreed eviction but the

building was governed by Haryana Urban (Control of Rent &

Eviction) Act 11 of 1973. It was held that the decree was

without jurisdiction and its nullity can be raised in

execution. In Union of India v. M/s. Ajit Mehta and

Associates. Pune and Ors., AIR 1990 Bombay 45 a Division

Bench to which Sawant, J. as he then was, a member was to

consider whether the validity of the award could be

questioned on jurisdictional issue under section 30 of the

Arbitration Act. The Division Bench held that Clause 70 of

the, Contract provided that the Chief Engineer shall appoint

an engineer officer to be sole arbitrator and unless both.

parties agree in writing such a reference shall not take

place until after completion of the works or termination or

determination of the Contract. Pursuant to this contract

under section 8 of the Act, an Arbitrator was appointed and

award was made, Its validity was questioned under section

30 thereof. The Division Bench considering the scope of

Sections 8 and 20(4) of the Act and on review of the case

law held that Section 8 cannot be invoked for appointment of

an Arbitrator unilaterally but 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

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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 him to be referred to the arbitration of an

arbitrator. He has got to be specified that the Will is a

genuine document before the order of granting probate is

passed. He cannot delegate those functions to a

465

private individual and decide the point through him.

Similar was the view laid in Manmohini Guha's case, Sarda

Kanta Das v. Gobinda Das 6 Indian. Cases 912 and Khelawati

v. Chet. Ram Khub Rain, AIR 1952 Punjab 67. When the plea

of estoppel was raised, Sulaiman. J. in Gopi Rai's case

held that "We cannot hold that there is any estoppel against

Gopi Rai on this question of jurisdiction. That is a matter

which we can take into account only when ordering costs.','

The decision in Nalla Ramudamma v. Nalla Kasi Naidu, AIR

1945 Madras 269 relied on by Shri Chidambaram does not help

his clients. Therein the question was the matrimonial

dispute. The Arbitrator had decided at the request of the

parties and a decree was passed. It was held that the

dispute would come under section 21 of the Arbitration Act.

The question of jurisdiction was not raised therein. Equal-

ly the decision in Mt. Mahasunader Kuer and Anr. v. Ram

Ratan Prasad Sahi. AIR 1916 Patna 382 is also of little

assistance. The question of adoption, it was held, cannot

be decided in the probate proceedings.

On a conspectus of the above legal scenario we conclude that

the Probate Court has been conferred with exclusive

jurisdiction to grant probate of the Will of the deceased

annexed to the petition (suit); on grant or refusal thereof,

it has to preserve the original Will produced before it.

The grant of probate is final subject to appeal, if any, or

revocation if made in terms of the provisions of the

Succession Act. It is a judgment in rely and conclusive and

binds not only the parties but also the entire world The

award deprives the parties of statutory right of appeal

provided under section 299. Thus the necessary conclusion

is that the Probate Court alone has exclusive jurisdiction

and the Civil Court on original side or the Arbitrator does

not get jurisdiction even if consented to by the parties, to

adjudicate upon the proof or validity of the Will propounded

by the executrix, the applicant. It is already seen that

the executrix was nominated expressly in the will is a legal

representative entitled to represent the Estate` of the

deceased but the heirs cannot get any probate before 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 Ar.

470

bitrator 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

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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

decision of the Probate Court; depending upon the result

thereon, he would conclude his findings on Issues Nos.1 and

2 and then make the award and take the proceedings according

to law. The application is accordingly ordered but without

cost.

N.V.K Application disposed of.

471