Bhagat Singh Dugar v. Indrajmal Shyamsukhas — 1991 DIGILAW 230 (CAL)

Judgment The dispute, in this case, is about a tenanted flat situated on the first floor (Main Block) at premises No. 5A, Lord Sinha Road, Calcutta. The defendant Nos. 1, 2, 3 & 4 (hereinafter described as Shyamsukhas) are a, present in occupation .of the said flat. Another case has been filed by the landlords, Raj Kumar Jhunjhunwala and others. The order passed in this case will be without prejudic to and subject to whatever is decided in the case of Jhunjhunwalas. 2. The plaintiffs are members of the family of Dugar (hereinafter described as Dugars). It appears that one Suwat Kunwar Dugar, since deceased, was the tenant of the said fiat. The Dugars allege that they arc the only heirs, heirses and legal representative of the said Suwat Kunwar Dugar and claim to be the only present tenants of the said flat. Shyamsukhas alleges that Suwat Kunwar Dugar died issuless and the Shyamsukhas were the only relatives of the said deceased and were residing with her in the said flat at the time of her death and are the tenants of the said flat. The Jhunjhunwalas claim a decree for khas possession of the said flat after evicting the occupants therefrom. Apart from these rival claims, it is alleged that the said Suwat Kunwar Dugar died, leaving behind a Will whereby she created a Trust of the tenanted flat. The Executors and Trustees have filed an application for probate of the said Will which is pending. 3. In March 1986, the Dugars filed a suit being Suit No. 192 of 1986 against the Shyamsukhas for a declaration that the Dugars are the sole heirs, heirses and legal representatives of Suwat Kunwar Dugar and her husband, Sohanlal Dugar, both since deceased, and were absolutely entitled to the entire estate of the said deceased persons including the said tenancy as also for an injunction restraining the Shyamsukhas from alienating, disposing of and/or dealing with the properties of the said deceased persons and also for a decree for ejectment against the Shyamsukhas from the said fiat. It was alleged by the Dugars that their predecessor-in-interests, i.e. Ratanlal Dugar and Subhkaran Dugar, both since deceased, had been lawfully adopted by the said Suwat Kunwar Dugar and Sohanlal Dugar. The Shyamsukhas contended that they were the lawful heirs of Suwat Kunwar Dugar and as such were entitled to the flat. 4. It was alleged by the Dugars that their predecessor-in-interests, i.e. Ratanlal Dugar and Subhkaran Dugar, both since deceased, had been lawfully adopted by the said Suwat Kunwar Dugar and Sohanlal Dugar. The Shyamsukhas contended that they were the lawful heirs of Suwat Kunwar Dugar and as such were entitled to the flat. 4. On August 30, 1986, the parties in Suit No. 192 of 1986 entered into a written agreement to refer the disputes and differences by and between them with regard to the estate of Sohanlal Dugar and Suwat Kuowar Dugar including those relating to inheritance and/or disposition thereof of Joint Arbitrators. 5. Subsequently, a joint petition was made in the said suit for referring such disputes to arbitration and by an order dated March 31, 1987 the said disputes were referred to the Arbitrators. The Arbitrators made and published their award on March 31st, 1988 whereby the Arbitrators declared that the Dugan were the only heirs, heiresses and legal representatives of the said Sohanlal Dugar and Suwat Kunwar Dugar and were entitled to the estate and properties of the deceased persons. They also declared that the Wills executed by laic Suwat Kunwar Dugar were null and void and were of no effect. The Arbitrators further held and awarded that the Shyamsukhas were staying with Suwat Kunwar Dugar, since deceased, as her guest in the said flat and could continue to live there in like manner upto February 28, 1989 but shall hold the possession thereof until such lime as legally permitted and to handover possession to Dugars in terms of suit No. 325 of 1986. The said award was filed in this Court on August 1, 1988 and a notice under Section 14(2) of the Arbitration Act was issued which was received by the Shyamsukhas on August 4, 1988. As no application for setting aside the award was made, a judgment in terms of the said award was passed on September 29, 1988. 6. An application was made for execution of the decree dated September 29, 1988. By an order dated May 18, 1989, the Joint Receivers were directed to take possession of the said flat from the Sbyamsukhas and to hand over the possession to the Dugar. 7. Two applications have now been filed. 6. An application was made for execution of the decree dated September 29, 1988. By an order dated May 18, 1989, the Joint Receivers were directed to take possession of the said flat from the Sbyamsukhas and to hand over the possession to the Dugar. 7. Two applications have now been filed. The first is an application filed in Suit No. 192 of 1986 by the judgment debtors, i.e. Shyamsukhas claiming a declaration that the decree dated September 29, 1988 is a nullity, unenforceable and not executable and also for recalling and/or setting aside the order dated May 18, 1989 amongst other reliefs. 8. The other application was made in suit No. 325 of 1986 by the landlords, i.e. Jhunjhunwalas for a stay of execution of the decree dated September 29, 1988 passed in suit No. 192 of 1986. There was also a prayer for setting aside the order dated May 18, 1989. 9. Mr. Pratap Chatterjee, Advocate appearing on behalf of Shyamsukhas has contended that the decree dated September 29, 1989 must be held to be a nullity on the following grounds: (i) The validity of, disposition by will and disputes thereto are required to be determined by Probate Court and by no other forum. The Civil Court has no jurisdiction to refer such a question to arbitration. The Arbitrators cannot decide any such dispute. Therefore, the reference of such dispute to arbitration is had being wholly without jurisdiction and a nullity. (ii) The said award and decree provide that the will executed by late Suwat Kunwar Dugar is null and void and of no effect. In law the Arbitrators could not make such declaration and, therefore, a decree based on such declaration is a nullity and of no effect. (iii) The said award and decree on the basis thereof purport to provide that late Ratanlal Dugar and late Subhkaran Dugar, being the predecessors-in-interest of the plaintiffs and the defendant No. 6 were adopted sons of late Sohanlal Dugar and late Suwat Kunwar Dugar. Under the Hindu Law there cannot be two adoptions, either simultaneous or one after other. If there were two adoptions, one after the other, the latter adoption would be a nullity. Declaration, as made in the said award and/or decree in regard to two adoptions by the said deceased, being contrary to public policy, is of no effect, void and nullity. If there were two adoptions, one after the other, the latter adoption would be a nullity. Declaration, as made in the said award and/or decree in regard to two adoptions by the said deceased, being contrary to public policy, is of no effect, void and nullity. If there were two separate adoptions, one after the other, the award does not mention, who was adopted first. This was deliberately done, as the later adoption would be a nullity and none of the two branches, was willing to forgo their claim over the assets of Sohanlal Dugar. (iv) The said award and/or decree provides that the plaintiffs are the inheritors of the tenancy rights in the said premises. The plaintiffs admittedly were not residing with the said deceased at the time of her death at the said premises. Furthermore, the adoption of the predecessors of the plaintiffs is invalid and void. Therefore, the declaration, as awarded is contrary to the provisions of West Bengal Premises Tenancy Act, 1956 and as such nullity. (v) In any event the said decree is not executable in present inasmuch as it provides that the petitioners shall hold the possession of the subject flat until such time, as they are legally permitted and to hand over the possession thereof to the plaintiffs in terms of suit No. 325 of 1986. No permission has yet been given, nor has any application been made for such permission in the suit No. 325 of 1986. The permission to hand over the possession to be granted by this Court in Suit No. 325 of 1986 being condition precedent to obtain the possession of the flat in question from the petitioners and no such permission having been accorded, the said decree is not executable until such permission is given. 10. I am unable to uphold these arguments on one fundamental ground. The Arbitration Act specifically lays down the grounds and the procedure for challenging an award. 11. 10. I am unable to uphold these arguments on one fundamental ground. The Arbitration Act specifically lays down the grounds and the procedure for challenging an award. 11. Section 30 lays down the ground for setting aside an award and is in the following terms: "An award shall not be set aside except on one or more of the following grounds, namely: a) that an arbitrator or umpire has mis-conducted himself or the proceedings;’ b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid after Section 35; c) that an award has been improperly procured or is otherwise invalid." 12. This section lays down the specific grounds on which an arbitration proceeding can be challenged. Apart from the specific grounds there is a general ground that where an award "is otherwise invalid" it may be set aside. The phrase is of very wide amplitude. There is no reason to construe the phrase, so as to exclude from its ambit an award which may be nullity. In the case of (1) Union of India v. Shri Om Prakash, AIR 1976 Supreme Court 1745 it was held that the words "or is otherwise invalid" in Clause (c) of Section 30 was wide enough to cover all forms of invalidity including invalidity of the reference. There was no reason why the general and unqualified language of Clause (c) of Section 30 should not include an award which was a nullity. 13. Section 31 of the Arbitration Act provides: (1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates. (2) Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court. (3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to no other Court. (3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to no other Court. (4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and in no other Court." 14. It will be seen from the provisions of Section 31 that questions which have to be determined by the Court where the arbitration award has been filed include questions relating to "the validity, effect or existence of an award or an arbitration agreement". So if the agreement is invalid and the consequential award is a nullity the question will have to be raised in the Court where an award has been filed. 15. Section 32 restricts the remedy of contesting an arbitration award by a suit and is in following terms: "Notwithstanding any law for the time being in force, no suit shall lie on any, ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or a ward, nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in this Act. 16. The language of the section is wide and the phrase 'on suit will lie on any ground whatsoever' cannot be construed in a narrow fashion so as to exclude an arbitration agreement or an award on the ground of nullity. Shyamsukhas had entered into the agreement with their eyes open. They have referred all the disputes to arbitration and appeared before the Arbitrators without any protest. They did not Contest the award even after it was made. The decree was allowed to be passed in terms of the award without any contest. Shyamsukhas had entered into the agreement with their eyes open. They have referred all the disputes to arbitration and appeared before the Arbitrators without any protest. They did not Contest the award even after it was made. The decree was allowed to be passed in terms of the award without any contest. The whole purpose of the arbitration proceedings will be frustrated if a party to an arbitration proceeding, after the Arbitrators come to a conclusion, award has been made and decree passed, can turn round and assail the agreement or the award or the decree on grounds of nullity or being beyond the jurisdiction or competence of the Court. All these points should have taken at the earliest stage of the proceedings. 17. The case of Dugars is that all grounds of objection to the award including the ground of nullity or the validity of the arbitration agreement or reference or any other grounds must be taken for setting aside the a ward under Sections 30 and 33 of the Arbitration Act, 1940 and any ground not so taken will not be available after the expiry of the time for making such an application. Reliance was placed on the Full Bench decision of this Court in the case of (2) Saha & Co. v. Ishar Singh Kripal Singh & Co., AIR 1956 Cal 321 . In that case the majority of the Judges came to the conclusion that under the Indian Arbitration Act, there was no distinction between an application for setting aside of an award and an application for adjudgment of the award to be a nullity and all applications must be made under Section 30 within the time stipulated in that Act. The existence of an award and the validity of the reference both have to be challenged in the suit in the same manner. I was referred to a passage of Chief Justice Chakravarti in that decision where it was observed that according to established notions under the ordinary law something which is a nullity could not be and was not required to be set aside. The Arbitration Act, however, had no, proceeded on that established concept. Section 30(b) of the Act referred to awards which were clear nullities and yet the section provided that these might be set aside. The Arbitration Act, however, had no, proceeded on that established concept. Section 30(b) of the Act referred to awards which were clear nullities and yet the section provided that these might be set aside. The Arbitration Act uses the expression 'set aside' in a wide sense and required that whenever an award was found fit to be removed because of nullity or otherwise it must be set aside. 18. In the case of (3) Mulchand Doshi v. Dolam Chan Benyani, AIR 1978 Cal 352 Sabyasachi Mukharji, J. (as His Lordship then was) held that an important public policy was to insist on finality of the litigation. This compelled the Court to disallow an applicant to make a bleated attempt to challenge the existence of an award which could have been challenged in the proceeding in which be was a party and which independently could also have been challenged by him. 19. This is a very good reason for not entertaining the claim of Shyamsukhas at this stage. If the argument of Shyamsukhas are to be accepted then the whole object of selling the dispute by arbitration will be defeated. The parties agreed to go to arbitration. The subject matter of arbitration proceedings was decided by an agreement between the parties. The Arbitrator was invited to decide all the disputes. After the decision of the Arbitrator was given, the decree was passed. No attempt was made to set aside the award. After a lapse of several years, if Shyamsukhas are allowed to take the point that the decree is a nullity that will mean another round of litigation. This is clearly against the spirit of the arbitration law and the provisions of Sections 30, 31 and 32 of the Arbitration Act. 20. It may be mentioned in this connection that the Full Bench decision of the Calcutta High Court in the case of Saha and Co. v. Ishar Singh Kripal Singh, AIR 1956 Cal 321 was noted by the Supreme Court in the case of (4) Lachman Dass v. Ram Lal, AIR 1989 SC 1923 . The majority view that there was no distinction between an application for selling aside of the award and an application for adjudgment of the award to be a nullity and that all applications must be made under Section 30 within the time stipulated in that Act was noted with approval. The majority view that there was no distinction between an application for selling aside of the award and an application for adjudgment of the award to be a nullity and that all applications must be made under Section 30 within the time stipulated in that Act was noted with approval. The Supreme Court also in that connection noted the observation of Mr. Vivian Bose, J. in the case of (5) Gangaprasad v. Mt. Banaspati, AIR 1933 Nagpur 132. Bose, J. dealt with the argument that even though it was not possible for the plaintiff to challenge the fact that there was a reference for arbitration and award and that there was no misconduct etc. he might still question its validity on the ground that the award had not been registered. Justice Bose held that this question was barred by rule of constructive res judicata. This was one of the grounds could have been urged against the filing of award and if it was not so urged and the award was filed then that question was barred in a subsequent suit. 21. The Bombay High Court in the case of (6) A.V. Savkur v. Amritlal Kalidas, AIR 1954 Bom 293 observed as follows: "It is well-settled that a decree which is a nullity may be ignored and it is not necessary to have such a decree set aside. But what the Arbitration Act, contemplates is that if an award is on the file of the Court, unless steps are taken to have that award set aside a certain definite result must follow and that definite result is the result indicated by the Legislature in Section 17. Therefore, it is not open to a party to assume that an award which has been filed and in respect of which a notice has been served upon him is a nullity. He must go to Court and get it set aside, and the Legislature in Section 30 has stated the grounds on which the party can succeed in setting aside an award." 22. In the case of (7) B.S. Ranga of Vikram Production, v. M/s. Asha Films Exchange, Indore, (1981) 2 MLJ 68 , a Division Bench of Madras High Court went into this controversy at length and a large number of cases were considered in that judgment. In the case of (7) B.S. Ranga of Vikram Production, v. M/s. Asha Films Exchange, Indore, (1981) 2 MLJ 68 , a Division Bench of Madras High Court went into this controversy at length and a large number of cases were considered in that judgment. The question raised before the Court was follows: “Could the validity of the reference to arbitration to the said arbitrators, rendition of the award by the said arbitrators and the decree that followed be impeached in execution proceedings ?” 23. The facts of that case are also very similar to the facts of this case. There, an award was filed in the District Court, Indore and the judgment debtor took the plea that the application was liable to be dismissed. It was observed in that judgment that the judgment debtor was given an opportunity of filing an application under Sections 30 & 33 of the Arbitration Act for setting aside the award. After referring to Sections 30 & 33 of the Arbitration Act it was held as follows: "The language of the section is un-ambiguous and must lead one to the conclusion that such a decree in the said circumstances, must have become final and cannot be impeached. Clauses (a) to (c) of Section 30 set out the grounds on which an award could be set aside; and Sec. 33 further adds on that the challenge could be also with reference to the existence and the validity of an arbitration agreement or an award. Clause (c) of Sec. 30 has come up for consideration in judicial precedents, as to whether in validity of reference would fall within the meaning of the expression 'or is otherwise invalid' found in the said clause. We shall presently refer to them. If no steps are taken to set aside the award under Section 30 and 33 of the Act, an unable result must follow under Section 17 of the Act and such a decree is not open to challenge except by way of an appeal under the two grounds mentioned in the said section. Whatever may be the ground of impeachment, it has got to be agitated under Sections 30 and 33 of the Act and if there is an omission to do so, one cannot avoid the implications of Section 17. Whatever may be the ground of impeachment, it has got to be agitated under Sections 30 and 33 of the Act and if there is an omission to do so, one cannot avoid the implications of Section 17. Section 32 is mandatory in nature when it lays down that no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in this Act. Hence, invalidity or incompetency of reference and the rendering of an award on such reference and the judgment and decree that follow could not be the subject matter of challenge in any manner whatsoever except under proceedings under the Act itself as exemplied in the provisions thereof. The provisions do not admit any qualification or exemption and the way to challenge the award has to be found under the Act itself, and the failure to take steps to challenge the award under the Act on the ground of any infirmity whatsoever must lead to the result under Section 17. There is no escape from it and the decree passed under Section 17, except by way of an appeal and that too on the grounds set out therein, cannot be challenged elsewhere on the ground that the reference is invalid and hence the award is invalid." 24. One of the judgments relied upon in that case was the decision of the Supreme Court in the case of (8) Bahadur Singh v. M.S. Dass, 1969(2) SCR 432 where it was observed as follows: "The award was filed in Court under Section 14 of the Arbitration Act, and on notice to the tenants and in their presence a decree was passed according to the award under Section 17. It is not open to the tenants now to take the objection that the award was in excess of the authority of the arbitrators or was otherwise invalid. Having regard to the scheme of Sections 14 to 17 and 31 to 33 all questions regarding the validity of the award had to be determined by the Court in which the award was filed and by no other Court. An award which is invalid on any ground can be set aside under Section 30. Having regard to the scheme of Sections 14 to 17 and 31 to 33 all questions regarding the validity of the award had to be determined by the Court in which the award was filed and by no other Court. An award which is invalid on any ground can be set aside under Section 30. After a decree is passed on the award it is not open to the parties to the reference to raise any objection as to the validity of the award. As between them the decree conclusively determined that the award is valid. Nor can the decree be pronounced to a nullity on the ground that the award was invalid. A decree passed on an invalid award in arbitration suits under the second schedule to the Code of Civil Procedure, 1908, stood on the same footing." 25. On behalf of the respondents, however, our attention was drawn to the ordering portion of the judgment, where it was held as follows: "In the result, it is declared that (a) the objections as to the validity of the award cannot be entertained in the execution proceedings, (b) the decree in so far as is directs delivery of possession of the premises to the landlord is a nullity and cannot be executed either by Muni Subrat or by Mehtab Singh and (c) the decree is so far as it directs removal of the machinery is valid and may be executed by Muni Subrat. Subject to the declarations mentioned above the appeals are dismissed." 26. It was contended on the strength of the order passed by the Supreme Court that the Supreme Court in the last paragraph of the order has really laid down the correct law that the question of nullity can be raised at any stage of the proceeding. 27. I am unable to uphold the contention that there is contradiction between the earlier part and later part of the judgment of the Supreme Court. 28. 27. I am unable to uphold the contention that there is contradiction between the earlier part and later part of the judgment of the Supreme Court. 28. The Supreme Court pointed out that the decree directing the tenant to deliver up possession of the premises to the landlord had been passed in contravention of Section 13(1) of the Delhi Ajmeer Rent Control Act, 1952 which provided that : "Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated): Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied........." 29. The judgment went on to say, as follows: "The other sub-section to Section 13 showed that a decree or order could be passed on one of those grounds in a suit or proceeding instituted by a landlord against a tenant. Section 13(1) prohibited the Court from passing a decree or order for recovery of possession of any premises in favour of a landlord against a tenant except in such a suit or proceeding and unless the Court was satisfied Chat a ground of eviction existed. Now the decree in the present case is on the face of it one for recovery of possession of the premises in favour of a landlord against a tenant. The Court passed the decree according to an award under Section 17 of the Arbitration Act, 1940 in a proceeding to which the landlord was not a party without satisfying itself that a ground of eviction existed. On the plain wording of Section 13(1) the Court was forbidden to pass the decree. The decree is a nullity and cannot be enforced in execution." 30. I do not find any contradiction between the first part of the judgment and the ordering portion of the judgment. In the first part of the judgment, it was categorically declared by Bachawat, J. “An award which is invalid on any ground can be set aside under Section 30. After a decree is passed on the award, it is no open to the parties to the reference to raise any objection as to the validity of the award. In the first part of the judgment, it was categorically declared by Bachawat, J. “An award which is invalid on any ground can be set aside under Section 30. After a decree is passed on the award, it is no open to the parties to the reference to raise any objection as to the validity of the award. As between them the decree conclusively determines that award is valid. Nor can the decree by pronounced a nullity on the ground that the award was invalid.” 31. It can only mean that a decree cannot be pronounced a nullity on the ground of any legal infirmity in the award itself. But if the decree was passed in violation of any express provision of law, the Court will refuse to execute that decree. That will not be on the ground that the award was had or void but on the ground that the decree could not be passed in violation of a statutory provision. The Supreme Court declared the decree passed in the case, in so far as it directed delivery of 'possession to the landlord, was a nullity because the Court was forbidden to pass straight away such a decree by Sec. 13(1) of the Delhi and Ajmer Rent Control Act, 1952, and not on the ground of any infirmity in the award. 32. In the case before the Supreme Court there was a mandate of law prohibiting the Court from passing an order of eviction except upon being satisfied that any of grounds specified in the statute was in existence. The Court had apparently passed the decree without being satisfied as to the existence of any of the requisite grounds. The decree was held to be a nullity in so far as it ordered eviction. There is no contradiction between this principle and the categorical declaration of law in the earlier part of the judgment that "after a decree is passed on an award, it is not open to the parties to the reference to raise any objection as to the validity of the award". 33. In the instant case, the decree has not been challenged on the ground of being in violation of any statutory provision but on the ground of an infirmity in the award itself. 34. 33. In the instant case, the decree has not been challenged on the ground of being in violation of any statutory provision but on the ground of an infirmity in the award itself. 34. I was also referred to some cases where the Courts took the view that a decree passed on an unregistered award was a nullity. Those were cases where the awards were compulsorily registrable under Section 17 (1)(b) of the Registration Act. I do not see how this line of cases can be any help to the judgment debtors. An award which is compulsorily registrable but is not registered, is not admissible in evidence and as such a judgment cannot be pronounced on such an award. Any decree passed on the basis of a compulsorily registrable award which has not been registered will be a nullity not because of the fact that the award itself was had but because the statutory requirement was not complied with. An award which creats or declares or assigns any right title or interest in any immovable property is compulsorily registrable under the statute. If that is not done no judgment can be pronounced on such an award because the Court cannot take notice of unregistered award in such a case. 35. Therefore, objections raised by the Shyamsukhas to the execution of the award must fail. 36. In view of the aforesaid it is not necessary to go into the other arguments raised about the validity of the award. Since the case has been elaborately argued, I propose to deal with these points briefly. 37. A point has been taken that Ratanlal Dugar and Subhkaran Dugar could not simultaneously adopted under the Hindu Law, nor can they be adopted one after another. In either case, the adoption was in violation of the principles of Hindu Law and the award declared that late Ralanlal Dugar and Subhkaran Dugar are the lawful heirs of Suwat Kunwar Dugar and Sohanlal Dugar was clearly against the principle of Hindu Law. 38. The question of adoption was raised before the Arbitrators. The Arbitrators were competent to go into and decide this question. Since the point was agitated before the Arbitrators and the dispute was referred to Arbitrators, the Arbitrators had jurisdiction to decide the issue. Assuming the dispute was wrongfully decided but that will not make the decision a nullity. 38. The question of adoption was raised before the Arbitrators. The Arbitrators were competent to go into and decide this question. Since the point was agitated before the Arbitrators and the dispute was referred to Arbitrators, the Arbitrators had jurisdiction to decide the issue. Assuming the dispute was wrongfully decided but that will not make the decision a nullity. Law applicable on this aspect of the matter is not free from doubt. In Mullas Hindu Law, Article 485 a contrary view has been noted. Moreover, the Arbitrators have not declared in the award specifically that there was a simultaneous adoption. In any event, the adopted sons Ratanlal and Subhkaran Dugar were the nephews of Sohanlal Dugar and Subhkaran Dugar were the only heirs in intestacy. 39. A point has been taken that the question of validity of a will can only be decided by a Court in probate proceedings. The Arbitrators cannot go into the question and decide the question of validity of a Will. It is true the question of validity of a will cannot usually be decided by the Arbitrators. But two or more persons can agree to refer a dispute to the Arbitrators. The decision of the Arbitrators cannot be binding on persons who are not parties to the arbitration agreement. It has been contended by Mr. Deb that it may happen that in a suit for partition of the properties left behind by an ancestor, the defendants may try to defeat any decree for partition by setting up a will allegedly executed by such ancestor. It may well be that no application for probate is made at all. The parties may agree to refer the matter in dispute in the suit to arbitration. The Arbitrator may make and pass an award and a decree may be passed upon such award. The award or the decree cannot bind a legatee or beneficiary under the Will, who is not a party to the suit and the award. Such legatee or beneficiary can claim a right conferred on him by the Will and can take appropriate action on that basis. In any event the determination of the validity or invalidity of the Wills is immaterial in so far as the Shyamsukhas are concerned because, if the will was probated then the flat would have gone to the Trust. Such legatee or beneficiary can claim a right conferred on him by the Will and can take appropriate action on that basis. In any event the determination of the validity or invalidity of the Wills is immaterial in so far as the Shyamsukhas are concerned because, if the will was probated then the flat would have gone to the Trust. The Award and the decree in question do not bind the Trust as the trustees are not parties thereto. 40. Mr. Deb went on to argue that under the decree dated September 29, 1988 the applicants are entitled to hold possession of the said flat until they are legally permitted to hand over possession to the Dugars by an order to be made in Suit No. 325 of 1985. The said condition was inserted in the award in view of the order dated March 16, 1987 in Suit No. 325 recording an undertaking from the Shyamsukhas not to transfer, dispose of or alienate the said flat without the leave of the Court. However, possession is being taken through the instrumentality of Court and the applicants undertaking to Court cannot stand in the way. 41. The question is whether the decree was executable at this stage. An order of injunction has been passed in favour of the Dugars restraining Shyamsukhas from dealing with the disposal of property. But that injunction was passed to protect the claim of the Dugars and that cannot stand in the way of execution of decree by the Dugars. 42. In the view of the matter this application must be dismissed. 43. There will be no order as to Costs. On the oral prayer for a stay of operation of this order, it is directed that the Receiver will not rake any action the matter till the second application is beard out by this court.