One Mr. K.B. Mhatre executed a will on or about 1963, the legatee where under are the respondents. On his expiry an application for grant of probate in respect of the said will was filed by the respondents. The appellant filed a Caveat pursuant to which a suit was registered. In the said suit a compromise was entered into by and between the parties.  Subsequently the appellant cancelled the said agreement. Thereafter pursuant to certain orders passed by the Hon’ble Court in Chamber Summons the matter reached to the Hon’ble Court by appeal filed by the appellant. The appellant contended that the contract between the parties could not be specifically enforced by the High Court, while exercising its testamentary jurisdiction

The Hon’ble Court observed that the effect of termination of such agreement entered into by and between the parties was required to be gone into in an independent suit and not in a proceeding under sec. 302 of the Act. The testamentary court in exercise of its jurisdiction u/s. 302 of the Act cannot enforce a contract qua contract; only because the Executor is a party thereto.

The submission of the appellant that the decision of the High Court constitutes resjudicata cannot be accepted. Thus, the issue did not attain finality. In view of the matter, an order passed without jurisdiction would be a nullity. It will be a coram non judice. It is non est in the eye of law. Principles of res judicata would not apply to such cases.

As sec. 302 of the Act was not attracted in the facts and circumstances of this case, the principles of res judicata would also not apply. If the agreement was not a part of the will, sec. 302 will have no application.

The testamentary court must give effect to the will and not an agreement by and between the Executor and the third party, which would be contrary to the wishes of the testator.  The appeal was allowed the order of High Court was set aside.