CHANDRABHAI K. BHOIR & ORS. versus KRISHNA ARJUN BHOIR & ORS.

Citation: [2008] 15 S.C.R. 652 · Decided: 07-11-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2008] 15 S.C.R. 652 
A 
CHANDRABHAI K. BHOIR & ORS. 
v. 
).... 
KRISHNA ARJUN BHOIR & ORS. 
(Civil Appeal No. 6575 of 2008) 
8 
NOVEMBER 07, 2008 
[S.B. SINHA AND CYRIAC JOSEPH, JJ.] 
Succession Act, 1925 -
s.302 -
Applicability of -
Jurisdiction of testamentary Court - Agreement between 
).-
c parties by which terms of Will changed/altered - Enforcing of 
- Held: The terms of the Will cannot be changed or altered 
in terms of an agreement - A probate when granted binds 
the whole world - It is a judgment in rem - Executor, therefore, 
has to administer the estate of the testator in terms of the 
D Will and not on the basis of the settlement arrived at by and 
between the parties -
Jn case of any conflict between the 
terms of the Will and the settlement, the former would prevail 
~ 
~ 
- The effect of termination of such agreement entered into 
by and between the parties is required to be gone into in an 
E independent suit and not in a proceeding under s.302 of the 
Act- Testamentary court in exercise of its jurisdiction under 
s. 302 cannot enforce a contract qua contract, only because 
the Executor is a party thereto -
It can enforce only the 
terms of the Will and not the terms of the agreement. 
F 
Doctrine of res judicata - Applicability of, to an order 
'f ( 
passed without jurisdiction - Held: Such an order would be 
• 
a nullity - It will be a coram non Judice and non est in the 
eye of law - Principles of res judicata would not apply to 
!
such cases. 
• 
G 
The respondents were legatees under a Will. On the 
death of testator, respondents filed application for grant 
of probate in respect of said Will. Appellants filed a caveat 
)... 
thereto, pursuant whereto a suit was directed to be 
H 
652 
CHANDRABHAI K. BHOIR & ORS. v. KRISHNA ARJUN 
653 
BHOIR & ORS. 
-'"" 
registered. In the said suit, compromise was entered into 
A 
between the parties by which, the terms of Will were 
changed. Thereafter the caveat was withdrawn. 
In 1992, an agreement by way of family arrangement 
was also entered into between the parties, wherein 
B 
appellants agreed to sell their share to the respondents 
for Rs.19 lacs and allowed respondents to develop entire 
-~ 
property including share of appellants. The entire amount 
was not paid. Appellants cancelled the said agreement by 
notice dated 26.11.1998. Respondent no.1 who was the c 
executor of the said Will took out chamber summons. 
Single Judge of High Court exercising testamentary 
jurisdiction allowed the chamber summons. Division 
Bench of High court upheld the same. Hence the instant 
appeal. 
D 
1-
It was contended for the appellants that s. 302 of the 
Succession Act, 1925 was not applicable in the instant 
case ·inasmuch as the rights and obligations of the parties 
were governed by the terms of agreement having regard 
to the fact that by reason of the order of the court on the 
E 
terms of settlement or otherwise, the Will remained 
unaltered; and that the development agreement which 
was a contract between the parties could not be 
'r 
specifically enforced by the High Court, while exercising 
11 
its testamentary jurisdiction. 
F 
Allowing the appeal, the Court 
HELD: 1.1. A probate is granted in respect of a Will. 
An Executor is appointed to administer the estate of the 
testator in terms of Will. The Will ordinarily should be 
G 
administered having regard to the last wishes of the 
.-( 
testator himself. Appellant No. 1 wan a caveator. He 
withdrew his caveat which was noticed by the court in 
terms of the order dated 11.02.1993. The probate was 
granted unconditionally. However, Clause 1 of the 
H 
654 
SUPREME COURT REPORTS 
[2008] 15 S.C.R. 
A consent terms was vague. The terms of the Will cannot 
be changed or altered in terms of the agreement. Both 
would be contradictory to or inconsistent with each other. 
[Paras 15 and 16] [664-F, G, H; 665-A] 
1.2. A probate when granted binds the whole world. 
B 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 
C terms of the Will and the settlement, the former will prevail. 
D 
The court, thus, in exercise of its jurisdiction under s.302 
of the Succession Act, 1925 can enforce only the terms 
of the Will and not the terms of the agreement. (Para 17] 
(665-A, BJ 
1.3. The a

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