Calcutta High Court
Vishanji Dungarmal Futnani vs Mohanlal Dungarmal Futnani And Ors. on 24 December, 1987
Equivalent citations: AIR1988CAL402, (1989)1CALLT31(HC), AIR 1988 CALCUTTA 402
ORDER Pratibha Bonnerjea, J.
1. This is an application under Section 33 of the Arbitration Act 1940, challenging the existence, validity and effect of the arbitration agreement dt. 14-7-83 and the award dt. 12-11-1983, praying for a declaration that both are invalid, null and void. The main contesting parties are the petitioner and the respondent No. 1.
2. The petitioner and the respondent No. 1 are two sons of one Dungarmal Bachumal Futnani, since deceased. The said deceased, his two sons and the members of the respective family of his two sons were interested in a number of Private Limited and Public Limited Companies, several partnership firms and a public charitable Trust registered under the Bombay Trust Act 1950. These businesses were carried on from Calcutta, Bombay and Madras and these companies and firms were the owners of various immovable properties situate at different places. One of such properties is known as "Futnani Chambers" situate at No. 6/A, Surendra Nath Banerjee Road, Calcutta.
3. After the death of Dungarmal, disputes and differences arose between his two sons and their respective family regarding the management and control of the aforesaid businesses and the Trust. Dungarmal died on 1-4-83. It was alleged by the respondent No. 1 that Dungarmal died leaving his last will and testament dt. 29th June, 1982 which was disputed by the petitioner.
4. On 14-7-83 the petitioner representing the members of his family and the respondent No. 1 representing the members of his family entered into a written arbitration agreement which is set out below : --
"The parties therefore agree that the differences between them be referred to the Award and Determination of Mr. T. K. Gupta and Mr, Bishen Sarup, both of Bombay.
It is also agreed between the parties that the said arbitration proceedings shall take place at the time and place to be determined by the said two Arbitrators.
The agreement shall be effective and be enforceable as between the parties and their legal representatives.
The parties hereto agree that they shall not insist on any written notice for appearing before the Arbitrators. They will remain present at Chattan, 9 Altamount Road, Bombay-400 026 between the hours of 3 to 5 p.m. daily from the date hereof till the Arbitration proceedings are over excepting on Bank holidays.
The parties have agreed that they shall remain present in Bombay and that without the consultation and consent of the Arbitrators shall not leave Bombay until the Arbitration proceedings are over and will not ask for any adjournment.
The Arbitrators shall make all enquiries in the presence of the parties. The Arbitrators shall have power to call for such evidence as they think proper or may proceed to deliver the Award without taking any evidence.
The Arbitrators shall give opportunities to the parties to produce evidence and witness within 3 days from date hereof before them at the time and place mentioned above.
The Arbitrators shall be entitled to base their Award on their personal knowledge.
The parties hereto have represented that they have full authority on behalf of their respective family members to enter into this agreement.
The parties hereto agree that they shall not employ any Advocate or any other professional person for the purpose of proceedings before the Arbitrators.
The Arbitrators have agreed that they will charge no fees, excepting any out of pocket charges.
The parties hereto have agreed that they shall not challenge any proceedings of the Arbitration and any Award given by the Arbitrators in a court of law.
The arbitrators shall make their Award unanimously in writing within two months from the date of this agreement or within such further time as the Arbitrators may decide."
5. According to the petitioner, the term regarding construction of the alleged will of Dungarmal Futnani was an unauthorised interpolation made by the respondent 1 in collusion and conspiracy with the arbitrators being respondents 10 and 11 herein.
6. The arbitrators named in this agreement entered upon the reference on 15-7-83 and made and published their award on 12-11-83. This arbitration agreement dt. 14-7-83 and the award dt. 12-11-83 are under challenge in this application.
7. The nature of disputes referred to arbitration cannot be found out from the -agreement itself but has to be gathered from the award.
8. The award records :
"Whereas differences and disputes arose between the sons of the deceased Dungarmal Bachumal Futnani who died on 1-4-1983 in regard to the right, title and interest of the said deceased in different business, that is to say, in partnership business and in public and Private Limited Companies at different places........... whereas between the sons of the deceased namely Vishanji D. Futnani and Mohanlal D. Futnani and the members of his family on the other, difference arose inregard to the construing and interpreting of the said will and their rights and claims in respect of the properties referred to in the said will and also in regard to the business carried on by them in various names and at various places as mentioned in the agreement."
9. Therefore, according to the award, there were three main disputes : --
1. The extent of the interest of the deceased D. B. Futnani in the Private and Public Limited Companies, partnership firms and the Public Charitable Trust.
2. Construction and interpretation of the alleged will and the right and claims of the legatees in respect of the properties mentioned in the will.
3. The disputes between the brothers and their respective branches regarding the various businesses carried on at different places.
10. While the petitioner in the present petition disputed the factum and validity of the alleged will of his deceased father, respondent No. 1 in his affidavit-in-opposition stated in para 10 as follows : --
"........the petitioner is estopped from challenging the will of the deceased Shri D. B. Futnani having agreed to abide by the provisions of the said will. The dispute which was referred to arbitration of the respondents 10 and 11 was how to _give effect to the provisions of the said will whereby the entire wordly possession of Late D.B. Futnani were bequeathed to members of my family, viz., respondents 2 to 6."
11. Therefore, according to the respondent 1, there was no dispute as to the construction of the will as the petitioner had agreed to abide by the provisions of the will but the dispute was how to give effect to the dispositions made in the will regarding the estate of the deceased and to hand over the assets of the deceased to the legatees mentioned in the will. In para 21 of this affidavit-in-opposition, the respondent 1 stated that the petitioner himself suggested that to give effect to the will by transfer of the business assets shares in limited companies and other assets, the matter should be referred to arbitration of the respondents 10 and 11 so that in their award they could give directions accordingly. In para 26 of the affidavit-in-opposition the respondent 1 alleged :
"I say that I did not take steps to obtain probate as the petitioner and his family members had accepted and wanted to give effect to the provisions of the said will."
12. In para 35, the respondent No. 1 alleged :
".....in order to give effect to the said will ........ the same was referred to arbitration of the respondents 10 and 11."
13. It is, therefore, clear that, according to the respondent 1, there was no dispute regarding the will but the parties have made the reference for the purpose of giving effect to the said unprobated will. The arbitrators also substantially corroborated the stand taken by the respondent 1 that construction of the will was necessary for giving effect to the provisions of the will. The arbitrators were also to resolve the disputes between the parties and their respective branches regarding the management and control of the assets of the Private and Public Limited Companies, partnership businesses and the Public Charitable Trust mentioned in the agreement and to ascertain the extent of interest the deceased had in the businesses mentioned in the agreement.
14. The counsel for both the parties conceded that no right could be asserted by any legatee nor any right could be established under an unprobated will But points raised are whether construction of an unprobated will and the disputes regarding the Public Charitable Trust are arbitrable disputes. The second point raised is whether disputes relating to the management and control of Private and Public Limited Companies and partnership businesses could be decided by the arbitrators when they were not parties to the arbitration agreement. It was decided during hearing that the aforesaid preliminary issues should be decided first and if it is found that the disputes referred to above are arbitrable and the arbitrators could proceed with the reference, then the question of unauthorised interpolation or forgery and other grounds attacking the award would be taken up.
15. During the pendency of this application, the respondents took out an application for grant of probate of the alleged will in Bombay High Court which is being contested by, the petitioner herein. The probate proceeding is still pending.
16. Mr. Bhabra. the counsel for the . petitioner, submits that the dispute regarding the construction of an unprobated will is not arbitrable. According to him, the question of construction of a will will only arise after the will is proved in accordance with the provisions of the Succession Act and the Probate Court grants the probate. In support of his contention, he relies on 52 Cal LJ 475 at p. 484 : (AIR 1931 Cal 138 at pp. 139-40) (Elizabeth Anna Vanqulin v. Official Trustee of Bengal) where the Division Bench of this Court held at page 484/485 (of Cal LJ) : (at pp. 139-40 of AIR).
"The question what is the man's will is a question to be decided in the testamentary jurisdiction of the Court. When you know what a man's will is, there is plenty of time to begin to construe it............."
"...........it is not until the Probate Court has decided the matter finally that it is given to anyone to know what the dispositions made by the Testator are."
17. He submits that in this case the existence and validity of the will has been challenged. Even if the parties had accepted the will and were agreeable to give effect to its provisions, still in law it, is not permissible to construe an unprobated will or to give effect to the provisions thereof. Parties, by consent, cannot ask for grant of probate nor can give effect to the will unless the Probate Court grants probate of the will He strongly relies on (1904) 8 Cal WN 197 at p. 200 (Sm. Monmohini Guha v. Banga Chandra Das) where it was held :
"The consent of parties that probate should be granted cannot give validity to a grant of probate as no grant can be valid unless the will be proved in some form and the Judge be in a position to pronounce that it is proved......... We therefore think that no grant of probate can be made merely on the consent of parties. ..........The court must itself be satisfied by admissible evidence that a will propounded is the will of the testator. The parties.......... cannot arrogate to themselves the function of deciding the issue by agreement or compromise."
18. He submits that when the Probate Court itself does not have the jurisdiction to grant probate or accept a will on the basis of consent or compromise by the parties, how the arbitrators will get jurisdiction to accept and construe an unprobated will and give effect to its provisions merely on the basis of an agreement between the parties?
19. On this point, he also cites (1846) 50 ER 467 at p. 475 (In Ryves v. Duke of Wellington) where the Master of the Rolls held :--
"...... that in all cases in which parties apply for the construction of a will or for payment of legacies under a will, this Court proceeds only on the foundation of a will proved in a court of competent jurisdiction."
20. He invites my attention to Sections 2(h) and 75 of the Succession Act 1925. Section 2(h) defines the will as a "declaration of the intention of the testator with respect of his property which he desires to be carried into effect after his death", Section 75 of the Act speaks of the disposition of the properties left by the deceased Construction of a document by the Court or the arbitrator becomes necessary for the purpose of ascertaining the legal rights and obligations of the parties under the document and for giving effect to the same. Construction of the document does not mean mere reading of the document to know its contents. It means to find out the meaning of the words and their legal effects as held in (1981) 1 QB 79 at 85. He invites my attention to the affidavit-in-opposition filed by the respondent 1 where clear averments have been made that the parties had referred the will to the arbitrators to find out the claims and rights of the legatees and to give effect to the legacies under the alleged will. He submits that the question of construction of an unprobated will with the object as referred to above is not arbitrable. In support, he cites (1952) 1 All ER 341 (Re : Wynn's Trusts) where after reviewing the earlier decisions on this point it was held at page 343 : --
"As long ago as 1694, in Phillises v. Bury there is a statement to the effect that the decisions of the construction of a will can not be referred to an arbitrator."
21. Mr. Bhabra also cites Janendra Nath Mukherjee v. Jitendra Nath Mukherjee, reported in 32 Cal WN 108 : (AIR 1928 Cal 275) where construction of an unprobated will was referred to arbitration to bring about an award nullifying the intention of the testator by distribution of properties contrary to the intention of the testator. While dealing with this case, he Division Bench held at page 112 that the executor of an unprobated will is not permitted :
"....to allow......to have the will construed by a tribunal of their own choice without proving the will and evading the duty fixed by law and to allow executors and some of the legatees to join together to make arrangement for the distribution of the properties contrary to the testator's intention.........."
22. Mr. Nag, the counsel for the respondent 1, tries to distinguish the case by submitting that the ratio of this decision is that construction of an unprobated will cannot be referred to the arbitration for nullifying the provisions of the will but there is no bar in referring the construction of the unprobated will to an arbitrator to find out the intention of the testator without any motive to change the disposition made therein.
23. According to Mr. Bhabra, the ratio of this decision is that there could be no reference for construction of an unprobated will by evading the duty fixed by law as also the provisions of the will could not be changed by consent of the parties. Both are prohibited by law.
24. Mr. Bhabra submits that in the name of 'construction' of the will, what the arbitrators have done in this case is to establish the rights of the legatees under the unprobated will which is prohibited Under Section 213 of the Succession Act, He cites (Hemnolini v. Isolyne Saroj Bashini), where the Supreme Court held at left hand column of page 1475 :
"The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right can be established in any court of justice unless probate or letters of administration have been obtained of the will under which the right is claimed."
25. Mr. R. C. Nag, the counsel for the respondent 1, submits that there is no illegality in the agreement for referring a dispute for construction of an unprobated will by the arbitrator. He submits that Section 213 of the Succession Act does not prevent a legatee or an executor from making a claim under an unprobated will but unless the will is probated or letter of administration is granted, nosuch right can be established. In support of his contention, he relies on (1816) 56 ER 237 (Steff v. Andrews) where a will was construed by the arbitrator and the award was challenged on the ground that the arbitrator misconstrued the will But the award was upheld. On the ground that the question of law referred to arbitrator is binding on the parties. He further relies on 18 Cal WN 1136 : (AIR 1915 Cal 207) (Basunta Kr. Chakraborty v. Gopal Ch. Das) where it has been held that production of an unprobated will cannot defeat the plaintiffs title in a suit as no right under the will can be established under an unprobated will. In 19 Cal WN 948 : (AIR 1915 Cal 745) (Soudamino Ghose v. Gopal Ch. Ghose), after applying for probate, the executors referred the matter to the arbitrator for construction of the will. Before the award was made the probate was granted. Hence this case is not supporting the case of the respondent 1. Mr. Nag then cites 20 Cal WN 122 atp. 125 :, (AIR 1915 Cal 341 at p. 343) (Achyutananda v. Jagannath Das) where it has been held that terras of an unprobated will can be looked into if the reference to the terms is not made with a view to establish the right of the person as an executor or a legatee. Mr. Nag also cites (1878) 10 Ch D 273 (Tabor v. Brooks) but its facts where totally different. He relies on Russel on Arbitration, 20th Edn., page 23, Foot Note 14 where Steff v. Andrews has been referred to, AIR 1928 Pat 7 (Janendra Nath Bagchi v. Suresh Chandra Roy), (1877) 2 App Cas 300 (Gisborne v. Gisborne) and AIR 1923 Bom 365 (Shankar v. Ramchandra).
26. Mr. Bhabra submits that none of the authorities relied on by Mr, Nag lays down the proposition that the disputes regarding construction of an unprobated will can be referred to arbitration for establishing the rights under the will. In all these cases, the terms of the will were looked into for collateral purposes and not for construction of the "provisions of unprobated wills for giving effect to the lagacies made therein as in the present case. He points out that in AIR 1923 Bom 365 parties had gone to the arbitrator for partition of certain properties amongst themselves to save ruinous litigation. After the award was made, none of the parties challenged the award on the ground that the testator bequeathed all his properties in favour of a party and as such the award was bad. It was held in that case that the will was not at all before the arbitrator and no right was asserted on the basis of the will No construction of the will or no right thereunder was claimed in that case. The facts of that case were totally different from the facts of the present case. Regarding (1816) 56 ER 237 (Steff v. Andrews) where the will was construed by the arbitrator and strongly relied on by Mr. Nag. Mr. Bhabra submits that from the facts of that case it does not appear that the will construed by the arbitrator was an unprobated one. Assuming for the sake of argument that the will in that case was unprobated, then our Court has clearly taken a different view on this point in 32 Cal WN 108 ; (AIR 1928 Cal 275) holding that law does not permit executors to have the unprobated will construed by a tribunal of their own choice without proving the will and thereby evading the duty payable under the law for obtaining probate of the will. Mr. Bhabra also submits that in re: Raven reported in (1915) 1 Ch D 673, Warrington, J. refused to take any notice of Steff. v. Andrews strongly relied on by Mr. Nag in this case. Hence even in England it cannot be considered as a good law.
27. Mr. Nag then cites AIR 1942 Cal 401 (Jogendra Nath Banerjee v. Makhanlal Banerjee) in support of his contention that construction of an unprobated will has been held to be permissible in law by our Court. My attention is drawn to page 403 where it has been held :
"........it is true that an unprobated will may be looked into for collateral purpose or for construction of it as was done in ILR 42 Cal 953 : (AIR 1916 Cal 324), 18 Cal WN 1136 : (AIR 1915 Cal 207), 42 Cal LJ 280 at page 407 : (AIR 1926 Cal 1 at p. 31) and 20 Cal WN 122 : (AIR 1915 Cal 341), but that is a different matter."
28. Dealing with the abovementioned case, Mr. Bhabra submits that it is necessary to examine the facts of the case to find out the ratio of this judgment. The plaintiff filed a suit for partition of the ancestral properties and defence taken was that the deceased father had left his last will w hereby he created a debuttar of his entire estate. The deity should be a party to the suit. As the will was unprobated, it was held that to defeat the plaintiffs claim the will was required to be proved before a competent Court and no right under the will could be established under an unprobated will due to the provisions of Section 213 of the Succession Act. The question of construction of the unprobated will was not in issue in that case and the observation of the Court, relied on by Mr. Nag was an "obiter". Mr. Bhabra also invites my attention to the case referred to in AIR 1942 Cal 401, 18 Cal WN 1136 : (AIR 1915 Cal 207), ILR42 Cal 953 : (AIR 1916 Cal 324) and 20 Cal WN 122 : (AIR 1915 Cal 341) and points out that in none of these cases the question of construction of an unprobated will was considered or upheld. Another case, relied on by Mr. Nag on this point is AIR 1928 Pat 7 but in that case the probate of the will had been granted.
29. It is true that the law is not very clear or settled on the point whether an unprobated will can be construed either by a Court or by an arbitrator. Our Courts have held that for collateral purposes an unprobated will can be looked into. 20 Cal WN 122 : (AIR 1915 Cal 341) has gone to the extent of holding that the terms of an unprobated will can be looked into only to enable the parties to know the contents thereof but no right under the will can be asserted. In my opinion, there is a difference between merely "looking into the terms of an unprobated will'' and "construction of an unprobated will". The terms of an unprobated will can be looked into just to know its contents. Construction of a will by court or by an arbitrator is required for having judicial pronouncement of the rights created by the document and/or giving effect to the same which, in case of an unprobated will, is prohibited Under Section 213 of the Act. The parties can themselves know the contents of an unprobated will by just reading the document. Hence there is a lot of difference between merely knowing the terms of an unprobated will for collateral purposes and "construing the terms of the will". In my opinion, the word 'construction' has been loosely used in AIR 1942 Cal 401 relied on by Mr. Nag. What the Court actually meant was to look into the terms of an unprobated will to acquaint itself with its contents. However, in the present case, I have not been called upon to find out the abstract proposition of law as to whether an unprobated will can be construed by the Court or by the arbitrator. I have been called upon to decide whether the disputes and differences for which reference was made for construction of the unprobated will in the present case were arbitrable or not.
30. I have already pointed out that in the award, while describing the nature of the disputes referred for adjudication, the arbitrators recorded that the question of construction became necessary to find out "their rights and claims in respect of the properties referred to in the said will". Mr. Bhabra has also invited my attention to the affidavit-in-opposition of the respondent 1 wherein he clearly stated that construction of the will was referred to the arbitrators to find out how to give effect to the provisions of the will. He also stated that no steps for obtaining the probate of the will was taken as it has been alleged that, the parties intended to give effect to the provisions of the will. This allegation of the respondent No. 1 is of course vehemently disputed by the petitioner. During hearing of the application, both the counsel for the parties repeatedly placed the award before me in support of their respective contention. Going through the award, I find that the arbitrators have not only declared the rights of the legatees under the alleged unprobaled will but also have given complete effect to each and every bequest made by making an award in favour of the legatees. The award was made in violation of the provisions of Section 212 of the Indian Succession Act and in complete disregard of the warning given by the Supreme Court in (Hem Nalini v. Isolyne Saroj Bashini) where it was held that no right as an executor or a legatee could be established unless the will be probated or a letter of administration be granted in respect of the will concerned.
31. The reference for construction of the unprobated alleged will was made for establishing the rights of the legatees. Even if the petitioner had agreed to give effect to this unprobated will as alleged by the respondent 1, still this agreement was illegal under Section 23 of the Indian Contract Act being forbidden by law i.e. Section 213 of the Succession Act. I, therefore, hold that the reference as made was bad and the alleged dispute was not arbitrable. Moreover, going through the award, I find that the arbitrators have not decided the extent of Dungarmal's interest in the businesses and properties, one of the disputes expressly referred to them for adjudication as would be evident from the award itself. Hence, the present award is incomplete and bad in law.
32. The next question is whether the dispute relating to the Public Charitable Trust is arbitrable or not. Futnani Charitable Trust is admittedly a Public Charitable Trust and is registered under the provisions of Section 18 of the Bombay Public Trust Act 1950. Mr. Bhabra invites my attention to the provisions of Sections 46 to 57 of this Act which provide for elaborate machineries for resolving the disputes regarding the management and Administration of the Public Charitable Trust. Section 50 of the Bombay Act is pari materia with Section 92 of the Code of Civil Procedure. Under Section 56 A of Bombay Act, any trustee of a Public Charitable Trust can apply to the Court for its opinion, advice and direction on any question affecting the management of administration of the Trust property or its income. For moving the Court, the consent of Charity Commissioner will be required under Section 51 of the Act. According to Mr. Bhabra, the provisions of Bombay Act will make it clear that only the Court designated under the Act has the exclusive jurisdiction over the disputes relating to management of the Trust property and administration of the Trust as well as its income. Mr. Bhabra cites (1910) ILR 32 All 503 (Md. Ibrahim Khan v. Ahmed Said Khan) in support of his contention that in this case it has been held that disputes concerning or affecting the administration and management of Public Charitable Trust are the exclusive domain of the Court and the same cannot be referred to arbitration. Mr. Nagdistinguishesthefactsof that case with that of the present one. He points out that in (1910) ILR 32 All 503 the dispute was regarding the succession of Trusteeship but in the present case the dispute. was regarding the division of the Trust Fund and in the Deed of Trust itself the trustees have been given the power and/or authority to refer such disputes to arbitration. He submits that the provisions of Bombay Act do not exclude the operation of the Arbitration Act either expressly or by implication. He invites my attention to Clause 19 of the Trust Deed which is as follows : --
"The Trustees shall have full power to compromise or compound all actions, suits and other proceedings and all difference and disputes touching the Trust Fund and/or the Trust rents and to refer any such differences or dispute to arbitration and to adjust and settle all disputes........"
33. Although the trustees of this Public Charitable Trust have the right to make the reference but such right is limited to the disputes relating to Trust Fund or Trust Rent. No other dispute could be resolved by taking recourse to arbitration. Mr. Nag's submission that the dispute related to the division of the Trust fund is not corroborated either by the agreement or by the award. It is a mere statement made at the bar. The arbitrators under CL 31 awarded that the respondent 1 would continue to be a trustee. From this provision of the award, it appears that the dispute related to trusteeship. This dispute is certainly not covered by the arbitration clause contained in the Trust Deed. In that view of the matter. I am of the opinion that the reference of this dispute relating to this public charitable trust was not arbitrable.
34. It is surprising that while the counsel for both the parties, during the course of their argument, repeatedly made reference to the agreement dt. 14-7-83, none of them noticed nor invited my attention to the last clause of the agreement which is as follows :
"The arbitrators shall make their award unanimously in writing within two months from the date of this agreement or within such further time as the arbitrators may decide."
35. This agreement will attract the provisions of Section 3 of the Arbitration Act which is set out below : --
"An arbitration agreement, unless a different intention is expressed therein, shall be deemed to include the provisions set out in the First Sch. in so far as they are applicable to the reference."
36. The parties have clearly expressed their intention that the award should be made within two months from the date of the agreement dt. 14-7-83 and, as such, this agreement will exclude application of Rule 3 of the First Sch. of the Arbitration Act which provides that the arbitrator will make the award within four months from the date of entering upon the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow. Moreover, by the last clause of the agreement, the parties have conferred power on the arbitrators to extend the time on their own to make the award as will be evident from the words "or within such further time as the arbitrators may decide". This enlargement of time could be made according to the decision of the arbitrators themselves without any reference to the parties or to the Court.
37. Section 28, Sub-section (2) of the Arbitration Act 1940 provides :
"Any provision in an arbitration agreement whereby the arbitrators or umpire may, except with the consent of all the parties to the agreement enlarge the time for making the award shall be void and of no effect."
38. The power conferred on the arbitrators to enlarge the time for making the award by the agreement dt. 14-7-83 is therefore void in law. In the award the arbitrators have recorded as follows : --
"Whereas upon the said reference, the arbitration proceedings were commenced before the arbitrators on 15-7-83 and continued up to 28th Oct., 1983."
39. Therefore, the reference continued after the expiry of the agreed time to make the award by 14-9-83. The award was made on 12-11-83. There is no mention in the award that the time for making the award was extended by the Court or by consent of the parties to the agreement. Obviously the arbitrators themselves extended the time by virtue of the power conferred upon them by the agreement dt. 14-7-83 which would be of no legal effect. The award is clearly out of time and void. It is true that the parties did not address the Court on this point. But when from the records of the case and on the face of the award, it is found to be out of time, it must be declared void and/or a nullity. In that view of the matter, I do not think any useful purpose would be served by dealing with other points raised in this proceeding that the award affects the right of private and public limited Companies and partnership firms which are not parties to the agreement and are strangers to the arbitration proceeding. If the award is void, that is the end of the matter.
40. The probate proceeding is pending which is being contested by the petitioner herein. The dispute regarding the genuineness of the will would be decided by the probate Court. It is recorded that throughout this proceeding, the petitioner disputed the existence of the will and alleged the reference regarding the will was a forgery. These questions will remain open.
41. In that view of the matter. I declare that the arbitration agreements in the present case relating to the alleged will and the public charitable Trust are not arbitrable and reference to that extent is bad. It is also declared that the award is void in law and is set aside, Each party to pay and bear their respective cost of this application.