Holding

Section 302 cannot be used to alter or enforce the terms of a Will; the probate binds the whole world and only the Will’s terms may be enforced, with any collateral agreement to be litigated separately, and orders passed without jurisdiction are void and not subject to res judicata.

Summary

The testator Kanha Barik Mhatre executed a Will in 1963; after his death, the legatees (respondents) obtained probate while the appellants filed a caveat and later withdrew it. The parties entered into a compromise agreement claiming to alter the Will’s terms and a separate family‑arrangement agreement for the sale of a share for Rs 19 lakh, which was not fully paid and later cancelled. The executor (respondent No.1) filed a chamber summons under Section 302 of the Indian Succession Act, 1925 seeking directions to deposit money and be discharged as executor. Lower courts varied their decisions, ultimately allowing the summons. The Supreme Court held that a probate is a judgment in rem that cannot be altered by private agreements; Section 302 can only enforce the terms of the Will, not a collateral contract, and any dispute over the agreement must be litigated separately. An order passed without jurisdiction is a nullity and res judicata does not apply. Consequently, the appeal was allowed and the impugned judgment set aside.

Issues considered

Whether Section 302 of the Indian Succession Act, 1925 is applicable to enforce a private agreement that purports to alter the terms of a probate Will.
Whether a probate decree can be varied or its terms altered by a compromise or family‑arrangement agreement between the parties.
Whether the testamentary court may enforce a contract (development agreement) between the executor and parties under Section 302.
Whether the doctrine of res judicata applies to orders passed without jurisdiction in proceedings under Section 302.
Whether termination of the family‑arrangement agreement must be decided in a separate suit or within Section 302 proceedings.

Legislation cited

Indian Succession Act, 1925s. 302

Subjects

probatesuccession actsection 302testamentary jurisdictioncontract enforcementres judicataagreement alterationjudgment in remexecutorfamily arrangement

Judgment

[2008] 15 S.C.R. 652

A CHANDRABHAI K. BHOIR & ORS.
v. )....
KRISHNA ARJUN BHOIR & ORS.
(Civil Appeal No. 6575 of 2008)

NOVEMBER 07, 2008
8
[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

G
such cases. •
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
executor of the said Will took out chamber summons.
c
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.
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
D
1.3. The agreement although formed part of the terms
of settlement, but it may only be held to be a collateral
document. A purported agreement of family arrangement
which in effect and substance is a development
agreement cannot form the part of a decree granting
E probate. Admittedly, a sum of Rs. 19,00,000/- was to be
paid in consideration of the appellants' allowing the
E:xecutor to purchase his share in the property for the
aforementioned sum. The terms of payment had also
been settled thereby. There is a dispute between the -(

F parties as regards the actual amount to be paid by the "'
Executor to the appellant. [Para 18] (665-C, D, E]
1.4. The effect of non-payment, according to the
respondents, is governed by Clause 5 of the agreement
in terms whereof interest at the rate of 18% on the unpaid
G amount could be levied from the due date till date of
payment of the unpaid amount along with the accrued
interest, which would constitute a charge over the
property. The said agreement is not registered. Whether
by reason of such a provision, a valid charge can be
H created would be separate question. But the fact remains
CHANDRABHAI K. BHOIR & ORS. v. KRISHNA ARJUN 655
~ BHOIR & ORS.

~ that rightly or wrongly the said agreement stood A
terminated. The effect of termination of such agreement
entered into by and between the parties is required to be
gone into in an independent suit and not in a proceeding
under s.302 of the Act. The testamentary court in exercise
of its jurisdiction under s.302 of the Act cannot enforce B
a contract qua contract; only because the Executer is a
party thereto. From the prayers made in the notice of
motion, it would appear that the Executor had sought for
direction against himself. Such a prayer was whether
maintainable in terms of s.302 of the Act had not been c
adverted to by the courts below. [Para 19] (665-F, G, H;
666-A, B]

2. Submission that the decision of the Division Bench
of the High Court dated 22.11.2005 constituted res judicata
cannot be accepted. It is one thing to say that an D
application under s.302 of the Act would be maintainable
but it is another thing to say that as to whether by reason
of the Chamber Summons, the respondent No. 1 would
have discharged as sole Executor, was dependant upon
the facts and circumstances of the case. Thus, the said E
issue, did not attain finality. In any 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.
~
• Thus, if s.302 of the Act was not attracted in the facts and F
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. [Paras 20, 21 and
22] [666-C, D; E, F, G]
G
Chief Justice of Andhra Pradesh and Oihers v. L. V.A.
Dixitulu, (1979)2 SCC 34; Union of India v. Pramod Gupta,
(2005) 12 SCC 1 and National Institute of Technology and
Ors. v. Niraj Kumar Singh, [2007] 2 SCC 481, relied on.

3. There is distinction between the two functions of H
656 SUPREME COURT REPORTS (2008] 15 S.C.R.
•.
A the respondent No. 1; one as an Executor of the Will and ,>-
the other as a developer; Whereas his action as an
Executor is subject to the direction of the testamentary
court, his action as a developer is not. An Executor or a
Trustee would not put him in such a position in which his
B personal interest and his duties Linder the Will come in
conflict with each other. The testamentary court must give
effect to the Will and not an agreement by and between
the Executor arid the third party, which would be contrary
)-:-
to the wishes of the testator. "[Para 23] [666-H; 667-A, B]
c Case Law Reference:
(1979) 2 sec 34 relied on Para 21
'
(2005) 12 sec 1 relied on Para 21

D (2007) 2 sec 481 relied on Para 21
CIVIL APPELLATE JURISDICTION : Civil Appeal No. -~
6575 of 2008.

From the final Judgment and Order dated 5.2.2007 of the
E High Court of Judicature at Bombay at Aurangabad in TS No.
33 of 1986 & CS No. 54 of 2006, TP No. 613 of 1986 & FO
No. 889 of 2006.

Shekhar Naphade, S.R. Mishra, Vimal Chandra S. Dave,
F S.N. Singh and Neelam Kalsi for the Appellants. -z;
Ranjit Kumar, Santosh Paul, Aanchal Jain, Arvind Gupta,
M.J. Paul, Yashwardhan Divekar and K. Rajeev for the
Respondents.

G The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. Application of Section 302 of the Indian Succession Act,
1925 (for short "the Act") is in question in this appeal which
H arises out of a judgment and order dated 5.02.2007 passed ..
CHANDRABHAI K. BHOIR & ORS. v. KRISHNA ARJUN 657
BHOIR & ORS. [S.S. SINHA, J.]

by a Division Bench of the High Court of Judicature at Bombay A
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 B
herein. He expired on 6.08.1974.

An application for grant of probate in respect of the said
-i
Will was filed by the respondents. Appellants filed a caveat
thereto, pursuant whereto a suit was directed to be registered. c
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 ...
D
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.
E
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
F
_. 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/ Caveatorics withdraw their caveat."
G
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:
H
658 SUPREME COURT REPORTS [2008] 15 S.C.R.

A "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/-.
B
3. 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.
c
(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 !akhs only) within a period
D
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
E 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."
F *** *** ***

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
G 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
H
CHANDRABHAI K. BHOIR & ORS. v. KRISHNA ARJUN 659
BHOIR & ORS. [S.B. SINHA, J.]

reads as under: A

"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 B
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
·-t
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/-."
c
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.
D
~~ 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 inter alia for the following
reliefs:

"(a) That the Plaintiff be directed to deposit in this Hon'ble E
Court the sum of Rs. 13, 78,422/- towards the share of the
Defendant Nos. 2 to 4 and the Respondent Nos. 1 to 5
and 7 to 12 in the estate of the deceased Kanha Barik
..,. Mhatre;
• F
(b) That it may be declared that on such deposit being
made the plaintiff be discharged of his obligation as
Executor of the Will of the deceased Kanha Barik Mhatre
and that the Defendant Nos. 2 to 4 and the Respondent
Nos. 1 to 12 have no right, title and interest in the estate G
of the deceased and particularly in respect of the
immovable property more particularly described in the
..._.(
Schedule annexed hereto and marked Exhibit 'A';

(c) ad-interim order in terms of prayer clauses (a) and (b)
H
660 SUPREME COURT REPORTS [2008] 15 S.C.R.

A above."

6. The said Chamber Summons was dismissed by an
order dated 11.08.2005. An intra-court appeal was preferred
thereagainst, which was marked as Appeal No. 897 of 2005.
B By a judgment and order dated 22.11.2005, the Division Bench
held:

"10. It was not disputed before us that probate to the Will
'r .
of the deceased Kanha Barik Mhatre has been granted
by this Court in Testamentary and intestate jurisdiction on
c 9th July, 1998. In the probate granted by this Court on 9th
July, 1998, the present Appellant has been appointed as
a sole Executor as to the Will executed by Kanha Barik
Mhatre, Section 302 of the Indian Succession Act, 1925
empowers the Testamentary Court to give to the Executor
D any general or special directions with regard to the estate
of the deceased Testator. The Probate having already
been granted, the.issue whether the sole Executor could
be discharged of his obligation on deposit of the amount
as set out in the Chamber Summons was surely within the
E exclusive jurisdiction of the Testamentary Court. The
question is not whether in the facts and circumstances set
out in the affidavit in support of Chamber Summons, the
Appellant at all could have been discharged as sole
executor that would be seen by the learned Chamber
F Judge at the time of hearing of Chamber Summons. 1
However, that was not seen and the learned Chamber
Judge dismissed the Chamber Summons on the ground
that the Chamber Summons was beyond the jurisdiction
of the Testamentary Court. The approach of the learned
Chamber Judge cannot be countenanced. It was for the
G
learned Chamber Judge to decide whether the sole
t
Executor of the Will of the deceased Kan ha Barik Mhatre
could at all be discharged of his obligations as the >-...__.
Executor of the Will as this could only be decided in the
Testamentary jurisdiction."
H
\-
CHANDRABHAI K. BHOIR & ORS. v. KRISHNA ARJUN 661
BHOIR & ORS. [S.B. SINHA, J.]

7. On the said premise, the appeal was allowed. The order A
dated 11.08.2005 was set aside and the matter was remitted
to the Court of learned Chamber Judge for hearing of the
Chamber Summons afresh.

8. By an order dated 23.06.2006, the learned Single
8
Judge allowed the respondents to withdraw the said Chamber
Summons.

9. However, a fresh Chamber Summons bearing No. 54
of 2006 was taken out on 13.07.2006. In the said notice of
motion, the Constituted Attorney of the Defendant Nos. 2 and C
3, in an affidavit affirmed on 28.08.2006, stated as under:

" ... I say that as against the total consideration of Rs. 19
lakhs, the sum of Rs. 13.5 lakhs was paid and balance
amount was not paid. I say that the amount was to be paid D
within 24 hours from the date of the Agreement. I say that
the full consideration was not paid within 24 hours from
the date of the Agreement i.e. on 2/3/1993. I say that the
amount was to be paid by 1/3/1995. I say that in the said
circumstances the Original Defendants terminated the E
said-Agreement for sale by Advocate's notice dated 26/
11/1998 and the Plaintiff also replied said notice dated 21/
12/1998 ... "

10. The learned Single Judge exercising testamentary
jurisdiction, by reason of a judgment and order dated F
28.09.2006, held as under:

"Thus, the probate of the Will granted by this Court without
modifying the Will.· But the terms agreed between the
parties for withdrawal of caveat were made part of the G
order of the Court. Perusal of the agreement entered into
between the parties which is mentioned in the consent
terms shows that the amounts to be paid by the Petitioner
to the parties who are mentioned in the agreement. The
time when these amounts were to be paid is also H
662 SUPREME COURT REPORTS [2008] 15 S.C.R.

A mentioned in the agreement. Clause (5) of this agreement
deals with the event of parties who are obligated to pay )--.
amount commits default in making payment. .. "

The said Chamber Summons was allowed issuing various
directions, which are as under:
B
"(i) The Petitioner to deposit the amount mentioned in
prayer clause (a) of the chamber summons with the
Prothonotary and Senior Master of this Court within a
period of two weeks from today with due notice to the
c respondents.

(ii) In case the respondents apply before the Prothonotary
& Senior Master of this Court for withdrawal of the amount
within a period of six months from the date of deposit, the
Prothonotary and Senior Master of this Court shall permit
D
them to withdraw the amount.

(iii) On deposit being made immediately the amount shall r-
be invested in fixed deposit in a nationalised bank. In case
respondents apply for withdrawal, the amount be paid to
E them with accruals, if any.

(iv) In case the respondents institute proLeedings in
appropriate court within a period of six months and secure
appropriate orders, the disposal of the amount shall be
F governed by tile order that may be passed by the
-1 .....
competent court. ..
(v) In case neither the respondents apply for withdrawal of
the amount nor Prothonotary and Senior Master of this
Court receives any order from the competent Court in
G relation to the disposal of the amount, the Prothonotary and
Senior Master of this Court shall permit the petitioner to
withdraw the amount, with accruals."

11. The Prothonotary & Senior Master of the court >-.:.. ~

H
CHANDRABHAI K. BHOIR & ORS. v. KRISHNA ARJUN 663
BHOIR & ORS. [S.B. SINHA, J.]

accepted the security furnished by the respondents herein . A
.......
An appeal preferred against the order dated 28.09.2006
before the High Court has been dismissed by reason of the
impugned judgment.

Appellants are, thus, before us.
8

12. Mr. Shekhar Naphade, learned senior counsel
appearing on behalf of the appellants, would submit:
-"(
'
(i) Section 302 of the Act cannot have any application c
in the instant case inasmuch as the rights and
obligations of the parties are governed by the terms
of agreement having regard to the fact that by
reason of the order of the court on the terms of
settlement or otherwise, the Will remained
D
unaltered .
..,
i -. (ii) The development agreement which was a contract
between the parties could not have been
specifically enforced by the High Court, while
exercising its testamentary jurisdiction. E

13. Mr. Ranjit Kumar, learned senior counsel appearing on
behalf of the respondents, on the other hand, would contend
that the consent terms formed part of the decree passed in the
suit and as in terms thereof the Executor was required to F
~
administer the Will, Section 302 of the Act would be applicable.
,.," "
Drawing our attention to the well-settled legal principle that
the probate is granted against the whole world, it was argued
that the consequences of non-payment of the amount under the

. contract having been stipulated therein itseif, viz., payment of
interest, the application under Section 302 of the Act was
maintainable.
G

~
It was submitted that the property in question being subject
to the Will and as by reason of clause 5 of the agreement, a H
664 SUPREME COURT REPORTS [2008) 15 S.C.R.

A charge has beer created on the property, in absence of any
proceeding initiated by the appellants to revoke the grant of >-.
probate or to reopen the decree and/ or to enforce the charge,
a direction by the court in that behalf was imperative,

Our attention was furthermore drawn to the fact that the
B
purported termination of the contract was made in 1998, i.e.,
after five years of the passing of the decree and in view of the
fact that now the entire amount together with interest has been .,,
paid, the impugned judgment should not be interfered with. ,... \
)

c It was contended that in the earlier round of litigation, the
judgment of the Division Bench upholding the maintainability of
the proceedings under Section 302 of the Act having been
I
upheld and the same having attained finality, the said question
(
cannot now be gone into once over again. ~
D
14. Section 302 of the Act reads as under:
.,_ ,' I

"302 - Directions to executor or administrator

Where probate or letters of administration in respect of any
E estate has or have been granted under this Act, the High
Court may, on application made to it, give to the executor
or administrator any general or special direction::; in regard
to the estate or in regard to the administration thereof."

15. A probate is granted in respect of a Will. An Executor
F
is appointed to administer the estate of the testator in terms
thereof. The Will ordinarily should be administered having
regard to the last wishes of the testator himself.

16. Appellant No. 1 herein was a caveator. He withdrew
G 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 consent terms appears to be
vague. How the terms of the Will can be changed or altered in
H terms of the agreement defies all comprehension. Both would
-I

CHANDRABHAI K. BHOIR & ORS. v. KRiSHNA ARJUN 665
BHOIR & ORS. [S.B. SINHA, J.]

be contradictory to or inconsistent with each other. A

· 17. A probate when granted ·binds the wholeworld. 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 B
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
4~ Will and not the terms of the agreement.
c
18. The agreement although formed part of the terms of
settlement, but it may only be held to be a collateral document.
A purported agreement of family arrangement which in effect
and substance is a development agreement cannot form the
part of a decree granting probate. D

Admittedly, a sum of Rs. 19,00,000/- was to be paid in
consideration of the appellants' allowing the Executor to
purchase his share in the property for the aforementioned sum.
The terms of payment had also been settled thereby. There is
E
a dispute between the parties as regards the actual amount to
be paid by the Executor to the appellant.

19. The effect of non-payment, according to the
respondents, is governed by Clause 5 of the agreement in
~
~ terms whereof interest at the rate of 18% on the unpaid amount F
• could be levied from the due date till date of payment of the
unpaid amount along with the accrued interest, which would
constitute a charge over the property. The said agreement is
~ not registered. Whether by reason of such a provision, a valid
charge can be created would be separate question. But the fact G
.., remains that rightly or wrongly the said agreement stood
terminated. The effect of termination of such agreement
I ...--( entered into by and between the parties is required to be gone
into in an independent suit and not in a proceeding under
H
666 SUPREME COURT REPORTS [2008] 15 S.C.R.

A Section 302 of the Act. The testamentary court in exercise of "
its jurisdiction under Section 302 of the Act cannot enforce a
.,I
contract qua contract; only because the Executor is a_ party '
thereto. From'
the prayers
'
made
'
in the notice of motion)t
• <'
would
appear that the Executor had sought for directior~~inst
B himself. Such a prayer was whether maintainable in terr;:s of
Section 302 of the Act had not been adverted to by the courts
below. ·

20. Submission of Mr. Ranjit Kumar that the decision of Y-
e the Division Bench of the High Court dated 22.11.2005 ···,
constitutes res judicata cannot be accepted. It is one thing to
say that an application under Section 302 of the Act would be
maintainable but it is another thing to say that as to whether by
reason of the Chamber Summons, the respondent No. 1 would
have discharged as sole Executor was dependant upon the
D facts and circumstances of the case. ·

21. Thus, the said issue, in our opinion, did not attain
finality. In any view of the matter, an order passed without
jurisdiction would be a nullity. It will be a coram non judice. It is
E non est in the eye of law. Principles of res judicata would not
apply to such cases. [See Chief Justice of Andhra Pradesh
and Others v. L. V.A. Dixitu/u, (1979) 2 SCC 34, Union of India
v.. Pramod Gupta (2005) 12 SCC 1 and National Institute of
Technology and Ors. v. Niraj Kumar Singh, (2007) 2 SCC
F 481] 't l
22. Thus, if Section 302 of the Act was not attracted in the ~
facts and circumstances of this case, the principles of res
judicata would also not apply.

G· If the agreement was not a part of the Will, in our opinion,
Section 302 will have no application. I
,'

. . 23. It is not necessary for us also to go into the question >--.
in reg~,rd to the effect of delay in termination of the agreement.
We must, however, make a distinction between the two
11

I
CHANDRABHAI K. BHOIR & ORS. v. KRISHNA ARJUN 667
BHOIR & ORS. [S.S. SINHA, J.]

-4., functions of the respondent No. 1; one as an Executor of the A
Will and the other as a developer. Whereas his action as an
Executor is subject to the direction of the testamentary court,
his action as a developer is not. An Executor or a Trustee would
not put him in such a position in which· his personal interest and
his duties under the Will come in con.flict with each other. The B
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.

24. For the reasons aforement_ioned, the impugned
judgment cannot be sustained which is set aside accordingly. C
The appeal is allowed. No costs.

D.G. Appeal allowed.