Kerala HC: Criteria to determine whether will was conditional or contingent

12. We can now deduce the following rules on the subject.

(1) A conditional or contingent will is one which depends for its operation upon the happening of a specified condition or contingency. If the condition fails, the will is inoperative and void thereafter.

(2) Whether or not a will is to be regarded as contingent depends upon the intention of the testator. Courts will not regard a will as conditional or contingent unless the intention of the testator to make it so clearly appears either expressly or by necessary implication from the language of the will as a whole.

(3) A will is not made conditional by statements therein which have no reasonable or logical relation to the testator's property or to the objects of his bounty.

(4) A statement in the will of circumstances which merely indicate the necessity or serve as the occasion or inducement for making the will will not render it contingent.

(5) Where it is doubtful whether the will is contingent upon the occurrence of an event the circumstances under which the will was executed or the language of the instrument may be considered.

IN THE HIGH COURT OF KERALA

FULL BENCH

A.S. Nos. 118 and 119 of 1953

Decided On: 27.01.1959

 Sridevi Amma  Vs.  Venkitaparasurama Ayyan and Ors.

Hon'ble Judges/Coram:

K.T. Koshi, C.J., M.S. Menon and N. Varadaraja Iyengar, JJ.

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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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When parties can approach court even in presence of arbitration agreement?

Arbitration is increasing method of dispute resolution. With increasing number of cross border transactions and international trade contracts, arbitrability of arbitration agreements now holds a prominent place in resolution of international and domestic arbitrations.

In India, traditionally the parties move to court when the the dispute relating to an arbitration agreement arises

The Golden Rule is that if the dispute is covered by an Arbitration agreement, the said dispute should be resolved by Arbitration. However, there are following exceptions to this Rule. 
 1. If a party institute an action in the Court in respect of a dispute, which is covered by an arbitration agreement, the Court may continue with the said action if the other party doesn't object to the Court's jurisdiction.
2. If there is an immediate urgency, the Court may hear the case. (Textile v Hydro Industries)
3. If the dispute is in respect of Oppression and Mismanagement under the Company law, the Court may hear the action.
4. The Court may hear disputes in respect of unjust enrichment and compensation for improvements.
5. The Court may also hear disputes which are not covered under the Agreement and the Arbitration Clause.
6. The Court may hear disputes if non parties to arbitration agreement are involved.
7. The Court should hear dispute if dispute arising out of arbitration agreement in criminal in nature.
8. The Court should hear if dispute is relating to status such as divorce, judicial separation, restitution of conjugal rights, child custody etc.
9. The Court should hear dispute if it is relating to competition law, insolvency, winding up, bribery, corruption
10. The Court should hear dispute if it is relating to   guardianship matters.
11. The Court should hear dispute if it is relating to testamentary matters.
12. The Court should hear dispute if it is disputes relating to trust.

Points 1-5 have been contributed by Mr. Yasith Hirimburegama, Lawyer based in Sri Lanka. 

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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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