Whether executor of will can enter into contract contrary to terms of will?

A probate when granted binds the whole world. 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 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 Will and not the terms of the agreement.

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.

 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 Section 302 of the Act. The testamentary court in exercise of its jurisdiction under Section 302 of the Act cannot enforce a contract qua contract; only because the Executor is a party thereto.

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

23. It is not necessary for us also to go into the question in regard to the effect of delay in termination of the agreement. We must, however, make a distinction between the two functions of 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 personal interest and his duties under 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 and the third party, which would be contrary to the wishes of the testator.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6575 of 2008 (Arising out of SLP (Civil) No. 13488 of 2007)

Decided On: 07.11.2008

 Chandrabhai K. Bhoir  Vs  Krishna Arjun Bhoir and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Citation: (2009) 2 SCC 315.

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Whether third party can file application for review of order of grant of probate?

The next question is about the maintainability of an application for review at the instance of a person who was not party to the appeal. The decision relied upon by Mr. Basu opines that a person aggrieved by an order can only file an application for review and if he is not a party to the proceedings, he cannot be aggrieved. In our view, the principle laid down in that decision cannot have any application to testamentary jurisdiction where the final decision passed is a judgment in rem and is binding against the whole world unlike the ordinary cases where the judgment is only binding upon the parties or their representatives. The Probate Court is vested with power under Section263 to revoke a probate even suo motu if it appears that there is a just cause for revocation and the Court's attention is drawn to such fact by even a third party. Therefore, simply because the present applicants were not parties to the appeal, that fact cannot stand in their way in applying for review when they are undisputedly heirs and legal representatives of the deceased testator in case of intestate succession having coveatable interest in the probate proceedings.

IN THE HIGH COURT OF CALCUTTA

R.V.W. 2116 of 2005 in F.A. No. 311 of 1988

Decided On: 21.04.2006

 Uma Addhya Vs. Biren Mondal

Hon'ble Judges/Coram:B. Bhattacharya and P.N. Sinha, JJ.

Citation: AIR 2006 Cal 200

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