GIRISH CHANDRA GUPTA, J. ( 1 ) - This appeal arises out of an order dated 24-12-1987 passed by the learned single Judge setting aside an award dated 12-11-1983. The facts relevant for the purpose of the present appeal are as follows :- ( 2 ) THE appellant and the respondent no. 1 are the sons of Late Dungarmal Bachumal Futnani. The respondents Nos. 2 to 4 are the sons of the respondent No. 1. The respondents Nos. 5 to 9 are the sons of the appellant, The respondents Nos. 10 and 11 are the arbitrators. ( 3 ) THE appellant, the respondents Nos. 1 to 9 with their common ancester Late Dungarmal Bachumal Futnani were carrying on 1arge number of businesses through the instrumentality of firms and private limited companies and were also having a charitable trust, particulars whereof would appear from the arbitration agreement dated 14-7-1983. Dungarmal Bachumal Futnani died on 1-4-1983. The respondent No. 1 claims to have ascertained from a letter dated 2-5-1983 addressed by the appellant to Kanga and Company, Solicitors and Advocates, that the said Dungarmal Bachumal Futnani died intestate and that the appellant and the respondent No. 5 were the executors appointed therein. The respondent No. 1 claims to have called upon the appellant to furnish a copy of the Will which was not forwarded notwithstanding repeated demands. The respondent no. 1 alleges that thereafter dispute and differences arose between the appellant and the respondent no. 1 "in respect of the right, title and interest of the said deceased in the different businesses or concerns and/or the charitable trust. " ( 4 ) AN arbitration agreement dated 14-7-1983 was entered into between the appellant and the respondent no. 1 representing their respective family members and the disputes and differences were referred to arbitration of the respondents Nos. 10 and 11. ( 5 ) THE arbitration agreement dated 14-7-1983 contains amongst others the following expression : "construing of the Will made by Dungarmal Bachumal Futnani. " ( 6 ) THE respondent no. 1 alleges that the aforesaid expression is a subsequent interpolation made by the appellant and his sons in collusion and consipiracy with the respondents Nos. 10 and 11 without notice and/or knowledge of the respondent no. 1 and his sons. ( 7 ) THE allegation of subsequent interpolation made by the respondent no. " ( 6 ) THE respondent no. 1 alleges that the aforesaid expression is a subsequent interpolation made by the appellant and his sons in collusion and consipiracy with the respondents Nos. 10 and 11 without notice and/or knowledge of the respondent no. 1 and his sons. ( 7 ) THE allegation of subsequent interpolation made by the respondent no. 1 has been denied by the appellant and the Arbitrators in their respective affidavit. As a matter of fact the Arbitrators in their affidavit dated 6-3-1984 have annexed an affidavit of their Stenographer who has stated on oath as follows :-"after sometime I was again called to the room of Mr. Tarachand Khushiram Gupta where I found Mr. Tarachand Khushiram Gupta, Mr. Vishanji Dungarmal Futnani, Mr. Mohanlal Dungarmal Futnani and Mr. Bishan Swarup Agarwal were having some discussions and I was asked by Mr. Tarachand Khushiram Gupta and Mr. Bishan Swarup Agarwal that on the first page of the typed agreement at the place shown, being below the names of various companies and concerns. I should add the words add construing of Will made by Mr. D. B. Futnani, I accordingly typed out the aforesaid words on the original agreements and the carbon copies and took the documents back to Mr. Tarachand Khushiram Gupta. However on reading the aforesaid words it was found that through inadvertance I had typed out the letter 's' instead of 'b ' as the initial of Late D. B. Futanani. The said mistake was corrected and I saw Mr. Vishanji Dungarmal Futnani and Mr. Mohanlal Dungarmal Futnani initial on the right hand side of the line that I had added subsequently and on the foot of the first page and at the foot of the second page and put their signatures on the third page. I also saw Mr. Tarachand Khushiram Gupta hand over a carbon copy of the said Agreement to Mr. Vishanji Dungarmal Futnani and Mr. Mohanlal Dungarmal Funtnani individually. " ( 8 ) WE shall revert to this aspect of the matter later on, if necessary. After the arbitration agreement was entered into the proceedings before the Arbitrators commenced on 15-7-1983 and continued upto 28-10-1983. The Arbitrators thereafter unanimously published their award dated 12-11-1983 and served copies thereof to the appellant and the respondent no. 1 under the cover of their letter dated 12-11-1983. ( 9 ) ). After the arbitration agreement was entered into the proceedings before the Arbitrators commenced on 15-7-1983 and continued upto 28-10-1983. The Arbitrators thereafter unanimously published their award dated 12-11-1983 and served copies thereof to the appellant and the respondent no. 1 under the cover of their letter dated 12-11-1983. ( 9 ) ). On 25-11-1983 the respondent no. 1 took out an application under Sections 33 and 41 of the Arbitration Act, 1940 praying for leave under Clause 12, Letters Patent and claiming inter alia the following reliefs :- (I) The existence, validity and effect of the alleged agreement dated July 14, 1983 be determined and the same be declared and adjudged invalid, null and void, in-operative and of no effect. (II) The existence, validity and effect of the alleged award purporting to be dated November 12, 1983 be determined and the same be declared and adjudged invalid, null and void, inoperative and of no effect. (III) Injunction restraining the respondents Nos. 1 to 6 and the respondents Nos. 10 and 11 and their servants, agents and assigned and each of them giving effect or further effect to the said agreement dated July 14, 1983 and the purported award purported to be dated November 12, 1983 or to take any steps in connection therewith or to act thereon in any way or manner whatsoever. (IV) Ad interim order in terms of prayer (ii) above. ( 10 ) ). The aforesaid application was made even before the award was filed. As a matter of fact, there is a prayer for injunction restraining the appellant and his sons and the Arbitrators from taking any step in connection with the said award and an ex-parte order of injunction in terms of prayer (III) dated 25-11-1983 was passed by the learned single Judge. ( 11 ) ). The respondent no. 1 prayed for the aforesaid relief on the ground that (a) the arbitration agreement dated 14-7-1983 is void, invalid and inoperative due to unauthorised interpolation and in any event the appellant and his son, the respondent no. ( 11 ) ). The respondent no. 1 prayed for the aforesaid relief on the ground that (a) the arbitration agreement dated 14-7-1983 is void, invalid and inoperative due to unauthorised interpolation and in any event the appellant and his son, the respondent no. 5 were not authorised and competent in law to enter into an agreement to refer the disputes to arbitration for construction of the Will to which they had been appointed executors; (b) the award dated 12-11-1983 is illegal, invalid, null and void and of no effect due to the reason that the arbitration agreement is null and void; arbitrators had no jurisdiction; the award contains directions against the firms, companies and public charitable trust which were not parties to the arbitration agreement that the arbitration agreement relating to the alleged Will and thepublic charitable trust are not arbitrable and the reference to that extent is bad and further declared that the award dated 12-11-1983 is void in law and ordered that the award be and the same was set aside on the following findings :-A. "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 no. 1 still this agreement was illegal under S. 23 of the Indian Contract Act being forbidden by law i. e. S. 213 of the Succession Act. I, therefore, hold that the reference as made was bad and the alleged dispute was not arbitrable. "b. "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. "c. "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. "d. "the award was made on 12-11-1983. 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. "d. "the award was made on 12-11-1983. 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 nullity. " ( 12 ) ). In the premises the original respondent no. 1 has preferred this appeal. ( 13 ) ). Learned counsel appearing on behalf of the respondent contended that the order is not appealable and that the appeal should be dismissed on this preliminary ground. We are not impressed by this agrument at all. By the impugned order the award has been set aside. An order setting aside an award is clearly appealable under Section 39 of the Arbitration Act, 1940. This preliminary objection is thus disposed of. ( 14 ) ). Before we advert to the findings of the learned single Judge and proceed to examine the same we are of the view that this appeal can be allowed on the ground that the application challenging the validity of the arbitration agreement and for adjudging the award null and void without there being any prayer to set aside the award and the application having been made only under Sections 33 and 41 even before the award was filed was incompetent and not maintainable. We take this view on the basis of a Full Bench judgment of this Court in the case of Saha and Co. v. Ishar Singh, reported in AIR 1956 Cal. 321 where Their Lordships held as follows :-"it is true that S. 33 provides for a separate and independent challenge to an arbitration agreement. We take this view on the basis of a Full Bench judgment of this Court in the case of Saha and Co. v. Ishar Singh, reported in AIR 1956 Cal. 321 where Their Lordships held as follows :-"it is true that S. 33 provides for a separate and independent challenge to an arbitration agreement. If no arbitration proceedings have yet been had and no award has been made, a party may undoubtedly challenge an arbitration agreement by means of an application made to the Court. ( 15 ) BUT I am of opinion that after an award has been made, a party, if he desires to challenge the validity of an arbitration agreement, can make his challenge only by way of advancing it as a reason for impugning the award as invalid. No independent application against the agreement would at that stage be maintainable. It follows that if a party desiring to challenge an arbitration agreement has not done so by way of asking the award to be set aside on that ground and has allowed a decree to be passed on the award, cannot thereafter launch an attack against the agreement. ( 16 ) THE true view to take appears to me to be that after an award has been made, all grounds of objection to the award, including grounds of the non-existence or invalidity of the agreement or reference, and all other grounds of nullity must be taken in an application for setting aside the award and that no ground, not so taken, can be available after the time for making such an application has expired. All grounds not so taken must be deemed to have waived. ( 17 ) I do not consider it right to say that the invalidity or non-existence of an agreement is not a proper ground to urge for setting aside an award and that a party desiring to plead such invalidity or non-existence will not be concluded by not urging it by means of an application for setting aside the award, but that he must neverthelessurge such ground before the decree is passed and will be concluded by the decree if he does not urge them even at a later stage. ( 18 ) IN my view, as I have already explained at some length the non-existence or invalidity of an agreement is also a ground for setting aside an award and therefore must be urged by means of an application under S. 30 and if it is not urged by such an application within the time limited by law, the consequence laid down in the last part of S. 17 of the Act will follow. " ( 19 ) THE following questions, in the aforesaid case, were referred to the Full Bench for decision :-1. Does the Indian Arbitration Act, 1940 distinguish between an application for setting aside an award and an application for the adjudgment of an award to be a nullity and contemplate that an application of the former kind should be made under S. 30 of the Act and an application of the later kind under S. 33 ?2. If the answer to the above question be in the negative, does the Act contemplate that all applications, challenging an award must be made under S. 33, irrespective of the ground of the challenge, and that they must be applications for setting aside the award ?3. Can the non-existence or invalidity of the reference be a ground of an application for setting aside an award, particularly in the case of an award in an arbitration without the intervention of the Court ?4. Were the cases of "haji Ebrahim Kassim Cochinwalla v. Pannalal Johurmull' ILR (1949) 1 Cal 245 (A) and 'bajranglal Ladhuram v. Ganesh Commercial Co. Ltd. , AIR 1951 Cal. 78 (B), rightly decided, in so far as it was held or assumed in them that the Arbitration Act contemplated different classes of applications under Ss. 30 and 33 for (impugning) an award and that nullity of the award was a proper ground of an application under S. 33 and could not be a ground of an application under S. 30 ? ( 20 ) THE question were answered according to the views of the majority as follows :-QUESTION 1 : "no"question 2 : First Part - "yes" Second Part - "yes" except in cases where the existence of an award in fact is challenged. Question 3 : "yes". Question 4 : "no". ( 21 ) IT is nobody's case that the award in fact does not exist. Question 3 : "yes". Question 4 : "no". ( 21 ) IT is nobody's case that the award in fact does not exist. The case is that the award is null and void. Therefore, the aforesaid case squarely applies to this case and the appeal is liable to be allowed on this ground alone. We shall, however, deal with the findings of the learned trial Judge in order to set the controversy at rest. ( 22 ) FINDING (A) : The learned Judge has held "that the reference for construction of the unprobated alleged Will was made for establishing the rights of the legatees". This finding is not borne out by the arbitration agreement. Arbitration agreement nowhere suggests that the construction of the unprobated Will is required for the purpose of establishing the rights of the legatees. It simply says "construing of Will made by Mr. D. B. Futnani". The construction is meant for establishing right of the legatees, it appears from the judgment of the learned single Judge, was the submission of the respondent No. 1. In order to accept this submission of the respondent No. 1, the terms of the arbitration agreement dated 14-7-1983 have to be varied and/or added to by oral evidence which is not permissible under Section 92 of the Evidence Act. This aspect of the matter was obviously not considered by the learned single Judge in accepting the submission on behalf of the respondent No. 1 that the reference for construction of the unprobated Will was made for establishing rights of the legatees. An arbitration agreement is a contract like any other contract and the provisions of Section 92 of the Evidence Act shall apply thereto with all force. We are supported in our view by a Division Bench judgment of the Allahabad High Court in the case of Radha Kishan v. Sapttar Singh, reported in AIR 1957 All 406 where it was held that "the parties to the agreement of reference in this case referred a dispute which they said arose between them. Therefore, they could not lead evidence to vary or add to the terms of the agreement by saying that they made the reference in any other capacity save that appearing from the agreement itself. Therefore, they could not lead evidence to vary or add to the terms of the agreement by saying that they made the reference in any other capacity save that appearing from the agreement itself. " ( 23 ) WE are therefore of the view that the reason why the reference for construction of the unprobated Will was made has to be ascertained from the arbitration agreement as it is. The said agreement does not support the finding that the reference was made for establish rights under the Will. Therefore, this finding is erroneous. ( 24 ) THE second limb of the finding is that "even if the petitioner had agreed to give effect to this unprobated Will as alleged by the respondent No. 1, still this agreementwas allegal under Section 23 of Indian Contract Act being forbidden by law i. e. Section 213 of the Indian Succession Act. " ( 25 ) IN order to examine this finding, it is necessary to notice Section 213 (1) of the Succession Act which is reproduced below :-"213 (1)- No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. " ( 26 ) PRIOR to coming into force of Indian Succession Act, 1925, there was Indian Succession Act of 1865 and Section 187 thereof contained an identical provisions which is set out hereinbelow :-"no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction within the province shall have granted probate of the Will under which the right is claimed, or shall have granted letters of administration under S. 180. " ( 27 ) SCRUTINY of a long catena of cases reveals that this Court has consistently taken the view that an unprobated Will can in fact be looked into by Court for the purpose of construction or for any other collateral purpose. " ( 27 ) SCRUTINY of a long catena of cases reveals that this Court has consistently taken the view that an unprobated Will can in fact be looked into by Court for the purpose of construction or for any other collateral purpose. ( 28 ) IN the case of Surbomungola Dabee v. Mohendronath Nath, reported in (1879) ILR 4 Cal 508, Hindu testator empowered his executor to lay out such portion of his estate as the executor might think fit towards charitable purposes, and did not dispose of the residue of the estate. The executor renounced, and no probate of the Will or letter of administration with the Will annexed was granted. In a suit by the testator's sole heiress for construction of the Will and for administration the Court allowed the execution of the Will to be proved in Court, declared that it was void for uncertainty and directed the usual administration accounts to be taken. ( 29 ) THE aforesaid case was cited with approval in the case of Basanta Kumar Chakraborty v. Gopal Chandra Das, reported in (1914) 18 Cal WN 1136 : (AIR 1915 Cal 207) "in the case of Surbomungola v. Mahendronath Nath, reported in (1879) ILR 4 Cal 508, Mr. Justice White allowed a Will to be proved; although no probate had been granted of the same, the heiress was allowed to prove it for the purpose of construing it and showing that it was void. " ( 30 ) IN the case of Achyutananda Das v. Jagannath Das, reported in (1916) 20 Cal WN 122 : (AIR 1915 Cal 341) a Bench presided over by Sir Asutosh Mukherjee and Beechcroft, J. it was held that"a Will not proved in the Probate Court may be used in evidence for a limited purpose. That section merely provides that no right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction shall have granted a probate of the Will under which the right is claimed or shall have granted letters of Administration with the Will or with a copy of an authenticated copy of the Will annexed; this does not debar the use of a Will in evidence for a purpose other than the establishment of a right as executor or legatee. " ( 31 ) IN Sarala Sundari Debi v. Hazari Dasi Debi, reported in ( (1915) ILR 42 Cal 953 a Bench presided over by Jenkins, C. J. and Woodroffe, J. held as follows :-"in our opinion the Judge had jurisdiction and was bound to consider that there was a Will although probate had not been granted; and that appears to us to be the result of several authorities: Sayad Shahu v. Hapija Begam, (1892) ILR 17 Bom 560, Chinnasami v. Hariharabadra, (1893) ILR 16 Mad 380, and Pathan Ali Khan Badlukhan v. Bai Pani Bai, (1894) ILR 19 Bom 832. The fact that there is a contest as to the validity of the Will may induce the Court to exercise its discretion one way or the other, as for instance, it may possibly defer deciding on the question of guardianship until the question of probate has been determined. But it is not open to the Court to say that it will refuse to take notice of the Will. " ( 32 ) IN Prayag Kumari Debi v. Prasad Singh, reported in AIR 1926 Cal 1 a Division Bench of this Court looked into the Will in order to ascertain the intention of the testator. Their Lordships held that "under S. 187 of the Probate Act (Succession Act 10 of 1865) the Will cannot be used for establishing any right as executor or legatee. In the present case the defendant is not seeking to establish any such right, but relies upon the Will only to show what the intention of the Raja was with regard to his estate. Butassuming that the Will is admissible in evidence, what does it prove? It is pointed out that the bequest of only a ten annas share of the jewellery and cash etc. , to the Ranis, and the provision that the remaining 6 annas would form part of the zamindari and would go to his successor, and specially the charge upon the estate for the maintenance of the Ranis, is inexplicable had the Raja any idea that the Ranis would succeed him. This is a legitimate interference from the provisions of the Will. This is a legitimate interference from the provisions of the Will. " ( 33 ) IN the case of Jogendranath Banerjee v. Makhan Lal Banerjee, reported in AIR 1942 Cal 401 it was held that "it is true that an unprobated Will may be looked into for a collateral purpose or for the construction of it as was done in (1915) ILR 42 Cal 953, (1914) 18 Cal WN 1136 : (AIR 1915 Cal 207), (1925) 42 Cal LJ 280 : (AIR 1926 Cal 1) and (1916) 20 Cal WN 122 : (AIR 1915 Cal 341) but that is a different matter. " ( 34 ) WE have already quoted above sub-section (1) of Section 213 of the Indian Succession Act. In our view, by no stretch of imagination can it be said that a reference to the Arbitrators for construction of an unprobated Will is not contrary to law. Section 213 of the Indian Succession Act 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 as an executor or legatee can be established in any Court of Justice unless probate or Letters of Administration had been obtained of the Will under which the right is claimed. ( 35 ) IN this context, it may be useful to notice Section 211 (1) and Section 307 (1) of the Indian Succession Act, 1925 :-"211 (1)- The executor or administration, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. ""307 (1)- Subject to the provisions of sub-section (2) an executor or administrator has power to dispose of the property of the deceased, vested in him under Section 211, either wholly or in part, in such manner as he may think fit. " ( 36 ) A conjoint reading of these two provisions leave no manner of doubt that the estate of the deceased vests in the executor upon the death of the testator irrespective of grant of probate. " ( 36 ) A conjoint reading of these two provisions leave no manner of doubt that the estate of the deceased vests in the executor upon the death of the testator irrespective of grant of probate. ( 37 ) IN this context reference may also be made to the case of Meyappa Chetty v. Supramanian Chetty, reported in AIR 1916 PC 202 where their Lordships observed as follows :-"it is quite clear that an executor derives his title and authority from the Will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the Will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of the probate is the only way in which by the rules of the Court, he is allowed to prove his title. " ( 38 ) THE aforesaid decision was sought to be distinguished in the case of Gopal Lal v. Amulya Kumar, reported in AIR 1933 Cal 234 on the ground that their Lordships were relying on the English Law on the point. It was however conceded that "if an executor institutes a suit in anticipation of probate and subsequently obtains probate, the requirement of Section 187, Succession Act, are satisfied for the purpose of a decree to be obtained. " ( 39 ) IN Chandra Kishore Roy v. Prasanna Kumari Dasi, reported in (1911) ILR 38 Cal 327 (PC) it was contended that the compliance with Section 187 of Succession Act after the commencement of the suit was too late. Their Lordships observed "as the compliance was before the decree, the Court was fully competent to deal with the case. " ( 40 ) THE fact that filing of a suit by an executor of an unprobated Will is not barred would further be evident from the provisions of Section 16 of Limitation Act, 1963 equivalent whereof was Section 17 in the earlier Act of 1908. In this regard the following passage from Ram Charan Singh v. Dharohar Kher, reported in AIR 1954 Pat 175 may be quoted. In this regard the following passage from Ram Charan Singh v. Dharohar Kher, reported in AIR 1954 Pat 175 may be quoted. "the absence of qualification as to time which I have noticed in respect of S. 211 also applies to S. 305 under which all causes of action that survive the deceased accrue to the executor or administrator, as the case may be, and there is nothing to prevent the running of limitation against the executor in respect of such causes of action between the death of the testator and the grant of probate. Limitation in such a case would be governed by S. 17, sub-sec. (1), Limitation Act, which provides that where a person, who would if he were living have a right to institute a suit or make an application, dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or making such suit or application. Under the terms of S. 211 the executor is the legal representative of the deceased person from the date of his death and limitation would run against him from this time. In contrast limitation would run against the administrator from the date of grant of letters of administration. It is difficult to hold that limitation would run against the executor from the earlier date if the title did not vest in him from the earlier date. " ( 41 ) THEREFORE the legal position of an executor is that he is the legal representative of the testator. The properties of the testator vest in him upon the death of the testator. Limitation runs against cause of action which survive the testator. So that the executor cannot claim exclusion of the time which passes between the death of the testator and grant of probate. In other words, executor can file a suit without waiting for grant of probate. In other words, executor can file a suit without waiting for grant of probate. ( 42 ) IF filing of a suit, by an executor of an unprobated Will, is not barred can it be said that referring the disputes to arbitration is barred? ( 43 ) WE have already held that in the case in hand the reference for construction of the Will was not for the purpose of establishing any right. ( 42 ) IF filing of a suit, by an executor of an unprobated Will, is not barred can it be said that referring the disputes to arbitration is barred? ( 43 ) WE have already held that in the case in hand the reference for construction of the Will was not for the purpose of establishing any right. But assuming that the reference was for the purpose of establishing a right even that, in our opinion, would not make any difference. When probate obtained prior to passing of the decree in a suit has been held to be sufficient compliance with Section 213 of Indian Succession Act there is no reason why probate obtained prior to the award being made a rule of Court should not be held to be sufficient compliance with Section 213 of the Succession Act. What follows is that a decree in terms of the award shall not be passed until the Will has been probated. This construction, in our view, logically explains the reason for applicability of Section 213 to a "court of Justice" and not to a proceeding before Arbitrator. ( 44 ) MR. Bachawat learned counsel appearing on behalf of the respondent No. 1 placed the strong reliance on a Division Bench judgment in the case of Elizabeth Anna v. The Official Trustee of Bengal, reported in (1930) 52 Cal LJ 475 : (AIR 1931 Cal 138) wherein the learned Judges observed that"the question what is the man's Will is a question to be decided in the testamentary jurisdiction of the Court just as in England it is to be decided in the probate Division of the High Court. It is not a question that can be decided incidentally according as the dispute between the parties happens to arise in the Small Cause Court in Calcutta or the Munsiff's Court in Bhagalpur or somewhere else. It has to be dealt with as a matter in respect of which the ultimate finding of the Court is a finding in rem binding the whole world. When you know what a man's Will is, there is plenty of time to begin to construe it. " ( 45 ) THE facts of that case were that the testator had made two Wills. By the second Will, the first Will was revoked and destroyed. When you know what a man's Will is, there is plenty of time to begin to construe it. " ( 45 ) THE facts of that case were that the testator had made two Wills. By the second Will, the first Will was revoked and destroyed. The second Will was inoperative by reason of Section 118 of the Indian Succession Act which seeks to avoid death bed bequests to religious or charitable uses by persons having near relations. In an originating summons the learned trial Judge held that "the executors should apply for probate of both documents and the second document should be treated as a codicil to the first. If the first document has been destroyed, probate of a copy will be granted. " This order was under challenge before the Division Bench. The point in issue in this case was whether it was open to a Court other than a Probate Court to hold that a document should be admitted to probate. This case, in our opinion, is of no assistance to the respondents. ( 46 ) MR. Bachawat has next placed reliance on a judgment of the Supreme Court in the case of C. S. Goenka v. J. S. Jasjit, 1993 2 SCC 507 : (1993 AIR SCW 1439) wherein question arose whether the Arbitrator had jurisdiction to decide the following issues :-1. Does claimant No. 1 prove execution of the Will dated 29th (28th) October, 1982 and prove the same to be the last and genuine Will of late Shri C. S. Goenka. 2. If not does she prove the execution of the Will dated July 4, 1978 and prove the same to be the last and genuine Will of the late Shri C. S. Goenka. ( 47 ) THEIR Lordships held in the aforesaid decision "that the probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original Will produce before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under Section 299. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under Section 299. Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix the appellant. " ( 48 ) WE fail to see how can this judgment help the respondents. The issues sought to be adjudicated by the Arbitrator are precisely the question to be decided by the Probate Court. ( 49 ) MR. Bachawat then placed reliance on the case of Jaanendra Nath Mukherjee v. Jitendra Mukherjee, reported in (1928) 32 Cal WN 108 : (AIR 1928 Cal 275) where it was observed with reference to the executors as follows :-"they cannot be permitted to enter into an agreement the result of which may be, and in this particular case has been, to bring about an award nullifying the intention of the testator. The object sought to be attained by such an agreement is something that the law does not permit, namely, to allow the parties to acquire title to property in contravention of the terms of a Will in a case where the title is claimed under the Will itself, to allow the executors 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 the executors and some of the legatees to join together and make an arrangement for the distribution of the properties contrary to the testator's intention and to the prejudice and detriment of the remaining legatee or legatees under the Will. " ( 50 ) THIS judgment, in our view, is of no assistance to the respondents because in that case the executors acting in league with some of the legatees wanted to obtain an award for distribution of the properties of the testator contrary to his intentions and to the prejudice of the other legatees. " ( 50 ) THIS judgment, in our view, is of no assistance to the respondents because in that case the executors acting in league with some of the legatees wanted to obtain an award for distribution of the properties of the testator contrary to his intentions and to the prejudice of the other legatees. An agreement entered into between two persons with the object of causing injury to the person or property of another is itself an illegal agreement under Section 23 of the Contract Act. This was precisely the case here and any observation made in this judgment has to be construed in the peculiar facts and circumstances of that case. This judgment, in our opinion, is of no assistance to the respondents. ( 51 ) MR. Bachawat then referred to the case of Shiv Chandra Singha v. Gour Chandra Pal, reported in (1928) 27 Cal WN 134 : (AIR 1928 Cal 275) and relied on the following :-"the contention that the strict mode of proof prescribed in Section 68 of the Indian Evidence Act applies only to cases where the document is attempted to be enforced to prove the legal right or relation it creates and not in cases where such document is sought to be proved for a collateral purpose is not sound. " ( 52 ) THIS observation was made by Court while considering whether the deeds of mortgage which were marked Exts. A and B had duly been proved. This case does not even remotely relate to the points in issue at hand. We fail to understand how does this case have any relevance to the case under consideration? ( 53 ) MR. Bachawat has then referred to the case of Hem Nolini v. Isolyne Saroj Bashini, reported in AIR 1962 SC 1471 . Their Lordships in that case held with regard to Section 213 of the Indian Succession Act as follows :-"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 as an executor or legatee 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. What it says is that no right as an executor or legatee 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. " ( 54 ) THIS case, in our opinion, does not help the respondent No. 1. ( 55 ) MR. Bachawat did not refer to any other case, copies whereof have been filed along with the written notes of submission. Mr. Sarkar appearing on behalf of the respondents Nos. 2, 3 and 4 adopted the submissions of Mr. Bachawat and addressed us on the point of appealability of the order which we have already disposed of. ( 56 ) WE have noticed a series of cases referred to hereinabove wherein it was held that an unprobated Will can be looked into for the purpose of construction. We find no reason to take a contrary view. We have already held that an agreement to refer disputes with regard to construction of an unprobated Will is not contrary to Section 213 of the Indian Succession Act and is therefore not an illegal agreement. Accordingly we set aside the finding of the learned trial Judge. ( 57 ) THE learned single Judge has held that the award is incomplete and bad in law because the Arbitrators have not decided the extent of Dungarmal's interest in the business and properties which is one of the disputes expressly referred to them. The arbitration agreement does not say so. Even the respondent No. 1 who was the petitioner in the Court below does not in his petition state that the extent of Dungarmal's interest in the businesses and properties was one of the disputes referred to the arbitration. In this respect the allegation made by respondent No. 1 in of his petition may be noticed which reads as follows :-"thereafter disputes and differences arose between your petitioner and the respondent No. 1 in respect of the right title and interest of the said deceased in the different business or concerns and/or the Charitable Trust. " ( 58 ) WE are therefore of the view that this finding of the learned single Judge is erroneous. ( 59 ) THE arbitration agreement does in fact refer to the disputes pertaining to a Charitable Trust in the name of Futnani Charitable Trust. " ( 58 ) WE are therefore of the view that this finding of the learned single Judge is erroneous. ( 59 ) THE arbitration agreement does in fact refer to the disputes pertaining to a Charitable Trust in the name of Futnani Charitable Trust. Therefore the finding that the award contained in Clause 31 was not arbitrable is in our view erroneous ( 60 ) FROM the minutes of the meeting of the arbitration dated 29-9-1983 it appears that "both the parties mutually agreed that the time for giving award by the Arbitrators be extended till 30-10-1983 or such other time as the Arbitrators require. " A copy of this minutes of the meeting dated 29-9-1983 is annexure 'i' to the affidavit affirmed by the Arbitrators. Moreover, the learned single Judge erred in not taking into consideration that the parties willingly participated in the arbitration after expiry of the time fixed in the arbitration agreement. In the minutes of the meeting dated 5-10-1983 both the parties affirmed that the arbitrators have acted most impartially and that they have got full faith in the impartial and fair mindedness of the Arbitrators. Further it would appear from the minutes of the meeting dated 20-10-1983 that both the parties confirmed that the Arbitrators had been absolutely correct in their conduct and hoped that the matter would be resolved soon. ( 61 ) THE award was given by the Arbitrators within a period of 4 months from the date of the arbitration agreement. Under Clause 3 of the Schedule 1 of the Arbitration Act, 1940 the Arbitrators are required to make their award within 4 months from the date of entering appearance. It was held in the case of Nagar Palika, Mirzapur v The Mirzapur Electricity Supply Co. Ltd. , reported in AIR 1990 SC 2273 that Court has power to extend the time even where the award is made after the stipulated time. The following paragraph from their Lordships' decision may be apposite :-"dr. Ghosh further pointed out that the time for arbitration expired on 31st December, 1970 and the award was made by the Arbitrator 27 days later on 27-1-1971 without formal extension of time. This argument does not appeal to us. The conduct of the parties is a major factor to waive the extension of time given by the Court. The time be taken as extended. This argument does not appeal to us. The conduct of the parties is a major factor to waive the extension of time given by the Court. The time be taken as extended. " ( 62 ) ALL the findings of the learned single Judge are thus disposed of. ( 63 ) IN the result, the appeal succeeds. The appeal is allowed with costs assessed at Rs. 25,000/ -. The order passed by the learned single Judge is set aside. ( 64 ) ASHOK KUMAR MATHUR, C. J. : -. I agree. Appeal allowed.