Shah, J. - (1.) Aforesaid appeal is filed against the judgment and order passed by the High Court of Delhi in Civil Writ Petition No. 734 of 1971 filed by the deceased Chiranjilal Srilal Goenka of Bombay challenging the order No. 19 of 1971 dated 8th February, 1971 passed by the Gold Control Administrator, New Delhi, Deceased appellant challenged confiscation of gold by the custom authorities under Gold Control orders by filing writ petition which was dismissed by the High Court. Against that order, the aforesaid appeal is filed. Pending appeal, appellant (Chiranjilal Srilal Goenka) died on 24th November, 1985. A dispute arose-as to who is the legal heir of the deceased. Firstly, one of the daughters. Sushila Bai N. Rungta claimed under a Will dated 29th Oct., 1982 and secondly, Radheshyam Goenka claimed as adopted son and thirdly, Smt. Raj Kumari R. Goenka wife of adopted son claimed independently. Keeping the question of ritght, tile and interest in the property open, for continuing the proceedings, all the three were ordered to be brought on record by order dated 7-10-1991. It was also ordered that appeal be listed to consider the possibility of appointing an artibrator by common consent or by orders of the Court for bringing about a settlement. Thereafter, to settle the dispute as to who would be the legal heirs to the estate of Chiranjilal Srilal Goenka, this Court passed an order on 1-11-1991 appointing Mr. Justice V. S. Deshpande, retired Chief Justice of Bombay High Court, as arbitrator which is reproduced here-under-"By consent of parties Justice V. S. Deshpande, retired Chief Justice of the Bombay High Court is appointed as arbitrator to settle the dispute as to who would be the legal heirs to the estate of late Chiranjilal Srilal Goenka. The question as to statutory action under the Gold Control Act is left open and is made explicitly clear that it is not a part of the reference. Arbitrator will fix his terms of fees and should function in such a way that the award is made available within four months from now. Parties will be entitled to place the claims before the Arbirator in regard to trust and other institutions but the same may not be finally dealt with by the arbitrator. Arbitration expenses shall be shared equally by the parties corresponding to the share of interest in the property."
(2.) For deciding the dispute, on 10th April, 1992 the Arbitrator framed issues as under- (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 4-7-1978 and prove the same to be the last and genuine Will of late Shri C. S. Goenka (3) Does claimant No. 2 prove that the late Shri C. S. Goenka duly adopted him on 26-1-1961 (4) Is the copy of the document dated 26-1-1961 filed by claimant No. 2 admissible in evidence (5) Is the said document genuine and brought into existece in the way claimed by claimant No. 2 (6) If yes, then does the said document constitute an agreement between Mangalchand and late Shri C. S. Goenka (7) If yes, can the said agreement be said to be the one contemplated by Section 13 of the Hindu Adoptions and Maintenance Act (8) If yes, then would the said agreement dated 26-1-1961 prevent the late C. S. Goenka from disposing of and dealing with the estate, according to his wishes by a Will (9) In view of finding on issues above, who are the legal heirs to the estate of the late Shri C. S. Goenka
(3.) For issues Nos. 1 and 2 it was pointed out that probate suit is pending in the Bombay High Court, wherein the learned Judge has expressed doubt whether arbitrator has jurisdiction to decide probate suit. Hence, IA No. 3 of 1992 was filed before this Court to seek clarification. By judgment and order dated 18th March, 1993 this Court held that arbitrator cannot proceed with probate suit and decide issue Nos. 1 and 2 framed by him and the High Court was requested to proceed with the probate suit No. 65 of 1985. Till the decision in the probate suit, the arbitrator was requested not to decide issue Nos. 1 and 2. The Court observed that it would be open to the arbitrator to proceed with other issues and would conclude his findings on issue Nos. 1 and 2 on the basis of result in the probate proceedings and make the award according to law.;