TaxTMI 
TaxTMI 
2008 (11) TMI 660
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....executed today... 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. 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 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." 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: "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/-. 3. The said amount is to be paid in the manner stated hereinafter: (a) Rs. 6,00,000/- ....
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....ndant Nos. 2 to 4 and the Respondent Nos. 1 to 12 have no right, title and interest in the estate 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) 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. 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 of the deceased Kanha Barik Mhatre has been granted by this Court in Testamentary and intestate jurisdiction on 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 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 o....
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....ment 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 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: "(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 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 them to withdraw the amount. (iii) On deposit being made immediately the amount shall be invested in fixed deposit in a nationalised bank. In case respondents apply for withdrawal, the amount be paid to them with accruals, if any. (iv) In case the responde....
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....r attention was furthermore drawn to the fact that the 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. 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 upheld and the same having attained finality, the said question cannot now be gone into once over again. 14. Section 302 of the Act reads as under: "302 - Directions to executor or administrator Where probate or letters of administration in respect of any 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 directions in regard to the estate or in regard to the administration thereof." 15. A probate is granted in respect of a Will. An Executor 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 te....
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.... the Act cannot enforce a contract qua contract; only because the Executor 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 Section 302 of the Act had not been adverted to by the courts below. 20. Submission of Mr. Ranjit Kumar that the decision of 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 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 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. Dixitulu (1979) 2 SCC 34, Union of India v. Pramod Gupta (2005) 12 SCC 1 and....