BRAJMOHAN AND OTHERS Vs. NATHULAL

JUDGEMENT

(1.) The appellant/appellants, being aggrieved by the order dated 1-10-1985, passed by the Seventh Additional District Judge, Indore in probate case No. 3 of 84, had applied for probate on the basis of a will. The respondent moved an application under Sec. 34 of the Arbitration Act, praying for staying the proceedings in view of the pending arbitration between the parties. The appellants in their reply to the stay application submitted that while agreeing to refer the dispute to arbitrators they had no knowledge about the existence of the will, which was subsequently opened in the presence of the arbitrators. One of the arbitrators happened to be an attesting witness to the will, the other arbitrator died during pendency of the proceedings, as stated at the bar, by, the learned counsel. The will was challenged before the arbitrators by the respondent.

(2.) Shri Jhawar, learned counsel, appearing for the appellants, has raised the basic point in this appeal-whether the validity of a will can "be challenged before the arbitrator Shri Shastri, on be other hand, contended that parties having chosen their forum before the arbitrators for resolving their dispute and differences should not be allowed to change the forum. He has placed reliance on the Supreme Court decision as reported in The Printers (P) Ltd. Vs. Pothan Joseph, AIR 1960 SC 1156. Perusal of the impugned order goes to show that the Trial Court did not advert to the question, whether the validity of a will can be attested by the arbitrator, particularly, when one of the arbitrators happened to be attesting witness to the will. It appears from the order (particularly paragraph-8 of the order) that the Trial Court was of view that it was not at that stage that these questions should be considered. True it is, that ordinarily the appellate Court does not interfere with discretionary orders, but as has been observed by the Supreme Court that - "if it appears to the appellate court that in exercising its discretion the Trial Court has acted unreasonably or capriciously or has ignored relevant facts and has adopted an unjudicial approach then it would certainly be open to the appellate court and in many cases it may be its duty to interfere with the trial court's exercise of discretion. In cases falling under this class the exercise of discretion by the Trial Court is in law wrongful and improper and that would certainly justify and call for interference from the appellate Court." as one of the arbitrators is being himself an attesting witness, a very vital question which arises for consideration is that whether an attesting witness to the will can act as an arbitrator in dispute, which involves the question of validity of that will itself can well be challenged such an arbitrator One. of the cardinal rule of the administration of justice is that justice should not merely be done but it must seems to be done an attesting witness to the will, cannot be a judge in a cause, which involves the question of validity of the will to which he is an attesting witness. The jurisdiction to grant of probate under the Indian Succession Act vests in the District Court, or the High Court. In the circumstances, it is one of those rare cases where the discretion exercised by the trial Court u/s. 34 of the Arbitration Act, calls for interference.

(3.) For the foregoing reasons, this appeal deserves to be allowed and it is accordingly allowed. The impugned order is set aside. The trial Court is directed to proceed expeditiously in accordance with law and decide the case as early as possible. There shall be no order as so costs. Appeal allowed.