REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 416 OF 2009 [Arising out of Special Leave Petition (Criminal) No. 5791 of 2005]

SYED ASKARI HADI ALI AUGUSTINE  IMAM & ANR.         … APPELLANTS

VERSUS

STATE (DELHI ADMN.) & ANR.       … RESPONDENTS

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Effect of pendency of a probate proceeding vis-à-vis a criminal case

involving allegations of forgery of a Will is the question involved in this

appeal.  It arises out of a judgment and order dated 23.7.2005 passed by a

learned single judge of the Delhi High Court in Criminal Revision No. 184

of 2005.

3. Before  embarking  on  the  said  legal  question,  we  may  notice  the

factual matrix involved herein.  

One Shamim Amna Imam (testatrix) indisputably was the owner of

the properties in question.  Allegedly, she executed a Will in favour of the

appellants on 3.5.1998.  She expired on 23.5.1998.  

Her legal heir was one Smt. Syeda Mehndi Imam (‘Syeda’ for short),

the mother of the testatrix.   

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On  or  about  23.1.1999,  Syed  Askari  Hadi  Ali  Augustine  Imam

(‘Askari’  for  short)  filed  an  application  before  the  office  of  the  Sub-

Registrar Hazaribagh in the State of Jharkhand for registration of the said

Will  dated  3.5.1998.   He  also  applied  before  the  Delhi  Development

Authority (DDA) for grant of mutation in respect of the property situated at

A-4,  Chirag  Co-operative  Housing  Society  Limited  known  as  Chirag

Enclave,  New  Delhi  on  or  about  25.2.1999  in  view  of  the  Will  dated

3.5.1998.   Indisputably,  Syeda also  made an  application  to  the  DDA on

23.4.1999 for grant of mutation in her favour.  

On or about 17.7.2000, the said Authority informed ‘Askari’ that his

request for mutation could not be acceded to as (1) the appellant could not

produce the original  copy of the Will dated 3.5.1998; (2) the property in

question  was  under  the  possession  of  Shri  M.C.  Reddy  and  Shri  M.H.

Reddy, and (3) Title Suit (T.S. No. 262 of 1991) filed by testatrix against

the appellant was pending in the civil court in Hazaribagh.   

Thereafter, appellant approached Permanent Lok Adalat (PLA) of the

DDA, which by an award dated 20.2.2001 directed DDA to grant mutation

in his favour.   

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Syeda filed a writ petition marked as Writ Petition (C) No. 2263 of

2002  before  the  Delhi  High  Court  for  quashing  of  the  said  order  dated

20.2.2001 of the PLA in pursuance whereof further proceedings before the

PLA was directed to be stayed by an order 3.5.2002.  Aggrieved thereby,

Askari filed Writ Petition (C) No. 3579 of 2002, which has been dismissed

by  a  learned  single  judge  of  the  same  High  Court  by  an  order  dated

8.4.2003.   Writ  Petition  (C)  No.  2263  of  2002 filed  by Syeda  has  been

allowed by an order dated 29.9.2003, holding:

“I  am  thus  of  the  considered  view  that  the impugned  direction  dated  20.2.2001  could  not have  been  passed  by the  Permanent  Lok  Adalat and  the  same  is  hereby  quashed.   Further,  no purpose  would  be  served  in  continuation  of  the proceedings  before  a  Permanent  Lok  Adalat  in view  of  the  disputes  not  being  capable  of reconciliation  till  such  time  as  the  right  of Respondent  No.2  to  the  property  in  question  in pursuance to the bequeath made under the will in dispute is finally adjudicated upon.  It has already been held by this  Court  in  Smt.  Janak Vohra  v. DDA  103 (2003)  DLT 789 that  in case of such disputed  questions  of  title,  and  mutation  being asked for, it is appropriate that the disputes of title be adjudicated in appropriate civil procedure and no direction be issued to mutate the property in the name of a party.”

An appeal preferred thereagainst before the Division Bench of High

Court was dismissed.  A Special Leave Petition filed thereagainst has also

been dismissed by this Court.  

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Indisputably Syeda filed a civil suit in the court of Subordinate Judge,

Patna,  which  was  marked  as  Civil  Suit  No.  71  of  2000,  inter  alia,

questioning the genuineness of the said will based on which the appellants

had claimed mutation in respect of the property at Delhi.

Syeda also filed a criminal complaint on or about 19.9.2002 against

the  appellants  under  Sections  420/468/444/34  IPC  in  Greater  Kailash-I,

New Delhi, Police Station alleging that the Will dated 3.5.1998 had been

forged by the appellants.   

The matter was investigated into and the disputed Will was sent for

examination by the experts to the Forensic Science Laboratory and the same

was found to be forged, stating:

“All the documents were carefully and thoroughly examined  with  scientific  instruments  such  as Stereo  Microscope,  Video  Spectral  Comparator- IV,  Docucenter,  VSC-2000/HR  and  Poliview System etc. under different lighting conditions and I am of the opinion that:

The  persons  who  wrote  red  enclosed signatures stamped and marked A1 to A4 did not write  the  red  enclosed  signatures  similarly stamped and marked Q1 and Q2, for the following reasons:

All the admitted signatures marked A1 to A4 are freely written, show natural variations and normal consistency among themselves which are observed

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in the genuine signatures of an individual executed over a period of time under varying circumstances. The questioned signatures marked Q1 & Q2 on the other hand are slow and drawn in their execution exhibit  pen-lift  at  unusual  places,  stubbed  finish and  both  the  signatures  marked  Q1  and  Q2  are superimposed over each other.  In addition to these divergences  are  also  observed  between  the questioned and standard signatures in the detailed execution of various characters such as – nature of commencement and movement between two body parts  of  ‘S’,  isolated  nature  and  location  of  ‘h’, movement in the lower body part of ‘h’, movement in the shoulders of ‘m’ and manner of combining ‘m’ with ‘i' and ‘i' with the terminal character ‘m’, nature and direction of the finish of terminal part of ‘m’ in the word ‘Shamim’ as observed in Q1 & Q2  is  nowhere  observed  in  standards,  leftward location of ‘I-dot’ as observed in Q1 & Q2 is also found different in standards; manner of execution of  ‘A’,  nature  of  the  apex  of  ‘A’,  nature  of commencement,  shape  and  direction  of  the commencing part of ‘m’ as observed in Q1, Q2 is also  nowhere  observed  in  standards;  manner  of combining ‘m’ with ‘n’ and omission of character ‘e’  as  observed  in  Q1,  Q2  is  also  nowhere observed  in  standards,  nature  and  shape  of  the shoulder  of  ‘n’,  movement  in  their  shoulders; nature  and  shape  of  the  oval  of  ‘a’,  nature  and direction in the terminal part of ‘a’ as observed in questioned signatures is also nowhere observed in standard signatures; habit of writing word ‘Imam’ in questioned signatures is also nowhere observed in standards.

The aforesaid  divergences are fundamental in  nature  and  beyond  the  range  of  natural variations  and  intended  disguise  and  when considered collectively they lead me to the above said opinion.”

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Cognizance of offences had been taken in the year 2002.

Appellants were granted anticipatory bail by the learned Additional

Sessions Judge, New Delhi by an order dated 16.11.2002.  

On or  about  30.1.2003, appellants  filed an application  for grant  of

probate being Testamentary Case No. 1 of 2003 in respect of the Will dated

3.5.1998 before the Jharkhand High Court under Section 276 of the Indian

Succession  Act.   We  may,  however,  notice  that  in  the  aforementioned

Testamentary  Suit,  Syeda  was  not  originally  impleaded  as  a  party.  The

court, however, suo motu directed issuance of notice.  She was impleaded as

a party only on 20.9.2001.   

Indisputably,  Syeda  on  or  about  9.9.1999  executed  a  Will

bequeathing her right, title and interest in the property in favour of Mr. Faiz

Murtaza Ali (“Faiz” for short).  She died on 22.2.2004.  After her death Faiz

claimed himself to be her legal heir on the strength of the said registered

will dated 9.9.1999.

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Indisputably, appellants preferred Writ Petition (Criminal) No. 636 of

2004 before the Delhi High Court for quashing of the FIR dated 19.9.2002,

which by reason of an order dated 29.7.2004 has been disposed of, stating:

“The  petitioners,  however,  will  be  at  liberty  to move  the  trial  court  by  way  of  moving  an application for  stay of  the  criminal  trial  pending adjudication of the question of genuineness of the Will by the Civil Court….”

Relying on or on the basis thereof, the appellants filed an application

under  Section  309  of  the  Code  of  Criminal  Procedure,  1973 before  the

learned Metropolitan Magistrate seeking stay of proceedings of the criminal

case, which has been dismissed by an order dated 10.2.2005, stating:

“The perusal  of  the case shows that  the accused have been charge sheeted for the  offences under Section  420/468/448/34  IPC  and  during  the investigation the documents including the alleged Will was seized by the IO and the same was sent to CFSL for expert opinion and it has been opined that the alleged Will was a forged one and on the basis of the said opinion the Hon’ble High Court had already opined in  the order  dated  29.7.2004 that there were no good grounds for quashment of the  FIR  and  the  proceedings  arising  out  of  the same, and the petition for quashing of the FIR was dismissed and the petitioners were given liberty by the Hon’ble High Court to move the trial court by way of a proper applications for stay of criminal trial  pending  adjudication  of  the question  of  the genuineness of the Will by the Civil Court.  In the said  order,  only  liberty  has  been  granted  to  the applicants  and  the  trial  court  has  been  directed

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only  to  dispose  of  the  present  application  in accordance with law.”

Aggrieved  thereby  and  dissatisfied  therewith,  appellants  preferred

Criminal Revision No. 184 of 2005 before the Delhi High Court, which has

been dismissed by reason of the impugned judgment.   

4. Indisputably, Faiz, the nephew of the testratrix filed Caveat Petition

No. 61 of 2005 in Testamentary Case No.1 of 2003 before the Jharkhand

High Court,  which  was dismissed by a learned single  judge by an order

dated 4.1.2008 whereagainst L.P.A. No. 32 of 2008 was preferred but was

dismissed  by  a  Division  Bench  of  the  same  Court  by  an  order  dated

2.4.2008, inter alia, holding:

“….Admittedly, the appellant – caveator is neither the brother of the testatrix, nor the descendant of the brother or the sister of the testatrix.  The mere fact  that  the  testatrix  predeceased  her  mother would not entitle the descendant of the brother of the said mother of the testatrix to have caveatable interest to implead himself as one of the parties in the  probate  proceedings.   It  is  contended  that several litigations are going on between the parties with  regard  to  the  properties  inclusive  of  the properties which are the subject-matter of the Will sought to be probated in the testimony case and in those  cases,  the  petitioner  –  caveator  has  been allowed  to  be  impleaded.   Merely  because  the petitioner  –  appellant  has  been  impleaded  or substituted in other pending suits with reference to the  disputes  over  the  properties  including  the

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properties which are the subject matter of the Will, he  cannot  claim  the  right  to  have  caveatable interest…”

However, before us, an application for impleadment has been filed,

which has been allowed by an order dated 27.8.2007.

5. Indisputably,  the  property  at  A-4,  Chirag  Co-operative  Housing

Society Limited known as Chirag Enclave, New Delhi was mutated in the

name of said Faiz by an order dated 12.4.2006.  Askari and Sayed Akabir

Hussain filed writ petitions thereagainst.  The said writ petitions also were

dismissed.

It is, however, stated at the Bar that the review application has been

allowed.  

6. We have noticed hereinbefore that the appellant filed an application

for quashing of the FIR which was, however, dismissed by an order dated

29.7.2004 observing that the appellants would be at liberty to move the trial

court by way of moving an application for stay of the criminal trial pending

adjudication  of  the  question  of  the genuineness  of  the Will  by the  Civil

Court.   

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7. Mr. Dinesh Dwivedi, learned Senior Counsel appearing on behalf of

the appellants, would urge:

(i) A judgment in a probate proceeding being a judgment in

rem  as  envisaged  under  Section  41  of  the  Indian

Evidence  Act,  the  criminal  proceedings  should  have

been directed to be stayed.  

(ii) The learned trial judge as also the High Court committed

a  serious  error  insofar  as  they  failed  to  take  into

consideration that the application under Section 309 of

the Code of  Criminal  Procedure was  dismissed on  the

same ground on which the application for quashing the

proceedings had been dismissed.

8. Mr.  A.  Sharan,  learned  Additional  Solicitor  General  appearing  for

State and Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of

the impleaded respondent, however would support the impugned judgment.  

9. Indisputably, in a given case,  a civil  proceeding as also a criminal

proceeding  may  proceed  simultaneously.   Cognizance  in  a  criminal

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proceeding  can  be  taken  by  the  criminal  court  upon  arriving  at  the

satisfaction that there exists a prima facie case.  

The question as to whether in the facts and circumstances of the case

one or the other proceedings would be stayed would depend upon several

factors including the nature and the stage of the case.   

10. It is, however, now well settled that ordinarily a criminal proceeding

will  have  primacy  over  the  civil  proceeding.   Precedence  to  a  criminal

proceeding  is  given  having  regard  to  the  fact  that  disposal  of  a  civil

proceeding ordinarily takes a long time and in  the interest  of  justice  the

former should be disposed of as expeditiously as possible.   

The  law  in  this  behalf  has  been  laid  down  in  a  large  number  of

decisions.  We may notice a few of them.  

In M.S. Sheriff & anr. vs. State of Madras & Ors. [AIR 1954 SC 397],

a Constitution Bench of this Court was seized of a question as to whether a

civil suit or a criminal case should be stayed in the event both are pending;

it was opined that the criminal matter should be given precedence.  

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In regard to the possibility of conflict in decisions, it was held that the

law envisages such an eventuality when it expressly refrains from making

the decision of one Court binding on the other or even relevant, except for

certain limited purposes, such as sentence or damages.  It was held that the

only relevant consideration was the likelihood of embarrassment.

If primacy is to be given to a criminal proceeding, indisputably, the

civil  suit  must  be  determined  on  its  own  merit,  keeping  in  view  the

evidences brought before it and not in terms of the evidence brought in the

criminal proceeding.   

The  question  came  up  for  consideration  in  K.G.  Premshanker  vs.

Inspector of Police and anr. [(2002) 8 SCC 87], wherein this Court inter alia

held:

“30. What emerges from the aforesaid discussion is — (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of  res judicata may apply; (3)  in  a criminal  case,  Section  300 CrPC makes provision  that  once  a  person  is  convicted  or acquitted, he may not be tried again for the same offence  if  the  conditions  mentioned  therein  are satisfied;  (4)  if  the  criminal  case  and  the  civil proceedings  are for the same cause,  judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as  provided  in  Section  41.  Section  41  provides

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which  judgment  would  be  conclusive  proof  of what is stated therein. 31. Further,  the  judgment,  order  or  decree passed in a previous civil proceeding, if relevant, as  provided  under  Sections  40  and  42  or  other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by  A on  B’s property,  B filed a suit  for declaration  of  its  title  and  to  recover  possession from  A and  suit  is  decreed.  Thereafter,  in  a criminal prosecution by  B against  A for trespass, judgment  passed  between  the  parties  in  civil proceedings would be relevant and the court may hold  that  it  conclusively  establishes  the  title  as well as possession of B over the property. In such case,  A may  be  convicted  for  trespass.  The illustration  to  Section  42  which is  quoted  above makes the position clear. Hence, in each and every case,  the  first  question  which  would  require consideration  is  —  whether  judgment,  order  or decree is relevant, if relevant — its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case.”

It is, however, significant to notice that the decision of this Court in

M/s  Karam Chand  Ganga  Prasad  & anr.  etc.  vs.  Union  of  India  & ors.

[(1970) 3 SCC 694], wherein it was categorically held that the decisions of

the civil courts will be binding on the criminal courts but the converse is not

true, was overruled, stating:

“33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal  court  stands  superseded  by  the  finding recorded  by  the  civil  court  is  not  correct enunciation  of  law.  Further,  the  general observations  made  in  Karam Chand  case are  in

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context of the facts of the case stated above. The Court  was  not  required  to  consider  the  earlier decision of the Constitution Bench in M.S. Sheriff case as well as Sections 40 to 43 of the Evidence Act.”

11. Axiomatically,  if  judgment  of  a  civil  court  is  not  binding  on  a

criminal court, a judgment of a criminal court will certainly not be binding

on  a  civil  court.   We  have  noticed  hereinbefore  that  Section  43  of  the

Evidence Act categorically states that judgments, orders or decrees, other

than those mentioned in sections 40, 41 and 42 are irrelevant, unless the

existence of such judgment, order or decree, is a fact in issue, or is relevant

under some other provisions of the Act.  No other provision of the Evidence

Act or for that matter any other statute has been brought to our notice.   

Another  Constitution  Bench  of  this  Court  had  the  occasion  to

consider a similar question in  Iqbal Singh Marwah & Anr.  vs.  Meenakshi

Marwah & Anr.  [(2005) 4 SCC 370] wherein it was held:   

24. There is another consideration which has to be kept  in  mind.  Sub-section  (1)  of  Section  340 CrPC  contemplates  holding  of  a  preliminary enquiry.  Normally,  a  direction  for  filing  of  a complaint is not made during the pendency of the proceeding before the court and this is done at the stage  when  the  proceeding  is  concluded and  the final  judgment is  rendered. Section 341 provides for an appeal  against  an order  directing filing of the complaint.  The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers  a  discretion  upon  a  court  trying  the complaint to adjourn the hearing of the case if it is brought  to  its  notice  that  an  appeal  is  pending

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against  the  decision  arrived  at  in  the  judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising  out  of  civil  suits  where  decisions  are challenged in successive appellate fora which are time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions  show  that,  in  reality,  the  procedure prescribed  for  filing  a complaint  by the  court  is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution  of  a  guilty  person  comes  to  his advantage as  witnesses  become reluctant  to  give evidence  and  the  evidence  gets  lost.  This important  consideration  dissuades  us  from accepting  the  broad  interpretation  sought  to  be placed upon clause (b)(ii).”

Relying inter alia on M.S. Sheriff  (supra), it was furthermore held:

“32. Coming to the last contention that an effort should  be  made  to  avoid  conflict  of  findings between  the  civil  and  criminal  courts,  it  is necessary to point  out  that  the standard of proof required  in  the  two  proceedings  are  entirely different. Civil  cases are decided on the basis of preponderance  of  evidence  while  in  a  criminal case the entire burden lies on the prosecution and proof  beyond  reasonable  doubt  has  to  be given. There  is  neither  any statutory  provision  nor  any legal  principle  that  the  findings  recorded  in  one proceeding may be treated as final  or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.”   

The  question  yet  again  came up  for  consideration  in  P.  Swaroopa

Rani vs.  M. Hari Narayana @ Hari Babu [AIR 2008 SC 1884], wherein it

was categorically held:

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“13. It  is,  however,  well-settled  that  in  a given case,  civil  proceedings  and criminal  proceedings can  proceed  simultaneously.   Whether  civil proceedings  or  criminal  proceedings  shall  be stayed depends upon the fact and circumstances of each case.”   

12. Mr.  Dwivedi,  however,  would  urge  that  in  a  case  of  this  nature

Section  41  of  the  Indian  Evidence  Act,  1872 would  be applicable.   Mr.

Dwivedi  would in support  of his  aforementioned contention place strong

reliance on Sardool Singh & Anr. vs.  Smt. Nasib Kaur [1987 (Supp.) SCC

146],  Commissioner  of  Income Tax,  Mumbai vs.  Bhupen  Champak  Lal

Dalal  & anr.  [(2001)  3  SCC 459]  and  Surinder  Kumar  & ors.  vs.  Gian

Chand & ors. [AIR 1957 SC 875].

Section 41 of the Indian Evidence Act reads as under:

“41  -  Relevancy  of  certain  judgments  in probate,  etc.,  jurisdiction.  --  A final  judgment, order  or  decree  of  a  competent  Court,  in  the exercise  of  probate,  matrimonial  admiralty  or insolvency  jurisdiction  which  confers  upon  or takes away from any person any legal character, or which  declares  any person  to  be  entitled  to  any such  character,  or  to  be  entitled  to  any specific thing,  not  as  against  any  specified  person  but absolutely, is relevant  when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment,  order  or  decree is  conclusive proof-

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that  any  legal  character  which  it  confers accrued  at  the  time  when  such  judgment, order or decree came into operation;

that any legal character, to which it declares any such person to be entitled, accrued, to that person at the time when such judgment, order or decree declares it  to have accrued to that person;

that any legal character which it takes away from  any  such  person  ceased  at  the  time from which such judgment, order or decree declared that it had ceased or should cease;

and that  anything to which it  declares any person to be so entitled was the property of that  person  at  the  time  from  which  such judgment,  order  or  decree  declares  that  it had been or should be his property.”

It speaks about a judgment.  Section 41 of the Evidence Act would

become applicable only when a final judgment is rendered.  Rendition of a

final  judgment  which  would  be  binding  on  the  whole  world  being

conclusive in nature shall  take a long time.  As and when a judgment is

rendered in one proceeding subject to the admissibility thereof keeping in

view  Section  43  of  the  Evidence  Act  may  be  produced  in  another

proceeding.  It is, however, beyond any cavil that a judgment rendered by a

probate  court  is  a  judgment  in  rem.   It  is  binding  on  all  courts  and

authorities.   Being  a  judgment  in  rem  it  will  have  effect  over  other

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judgments.  A judgment in rem indisputably is conclusive in a criminal as

well as in a civil proceeding.   

We  may,  however,  notice  that  whether  a  judgment  in  rem  is

conclusive in a criminal proceeding or not, is a matter of some doubt under

the English law.  

Johnson and Bridgman, Taylor of Evidence, Vol. 2, in S.1680 notes

that ‘whether a judgment in rem is conclusive in a criminal proceeding is a

question which admits of some doubt’.  It is, however, concluded that  it is

said that nothing can be more inconvenient or dangerous than a conflict of

decisions  between different  courts,  and that,  if  judgments  in rem are not

regarded as binding upon all courts alike, the most startling anomalies may

occur.  

A three judge Bench of this Court had the occasion to consider the

legal  effect  of  a  judgment  vis-à-vis  Section  41  of  the  Evidence  Act  in

Surinder Kumar & ors. vs. Gian Chand & ors. [AIR 1957 SC 875].  Kapur,

J. speaking for the Bench, opined:

“It  is  clear  that  the  probate  was  applied  for  and obtained after the judgment of the High Court and therefore  could  not  have  been  produced  in  that Court.  The judgment of the Probate Court must be

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presumed  to  have  been  obtained  in  accordance with the procedure prescribed by law and it  is  a judgment  in  rem.   The  objection  that  the respondents  were  not  parties  to  it  is  thus unsustainable  because  of  the  nature  of  the judgment itself.”

The question came up for consideration again before this  Court  in

Sardool  Singh  &  Anr.  vs.  Smt.  Nasib  Kaur [1987  (Supp.)  SCC  146],

wherein it was opined:

“A  civil  suit  between  the  parties  is  pending wherein the contention of the respondent is that no Will was executed whereas the contention of the appellants is that a Will has been executed by the testator.   A  case  for  grant  of  probate  is  also pending  in  the  court  of  learned  District  Judge, Rampur.  The civil court is therefore seized of the question as regards the validity of the Will.  The matter is sub judice in the aforesaid two cases in civil  courts.   At  this  juncture  the  respondent cannot  therefore  be  permitted  to  institute  a criminal prosecution on the allegation that the Will is  a  forged  one.   That  question  will  have  to  be decided  by  the  civil  court  after  recording  the evidence  and  hearing  the  parties  in  accordance with  law.   It  would  not  be  proper  to  permit  the respondent  to  prosecute  the  appellants  on  this allegation when the validity of the Will  is  being tested before a civil  court.   We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court  of  the  Judicial  Magistrate,  First  Class, Chandigarh in the case entitled Smt. Nasib Kaur v. Sardool Singh.   This will not come in the way of instituting  appropriate  proceedings  in  future  in case the civil  court comes to the conclusion that the Will is a forged one.”

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No ratio, however, can be culled out therefrom.  Why such a direction

was issued or such observations  were made do not  appear from the said

decision.  

13. Herein, however, criminal case had already been instituted.  Whether

the same would be allowed to be continued or not is the question.

We  have  noticed  hereinbefore  the  decision  in  K.G.  Premshanker

(supra).  Mr. Dwivedi, however, would submit that the court  therein was

concerned  with  a  case  involving  Section  42  of  the  Evidence  Act.  The

learned counsel may be correct as it was held that Section 41 is an exception

to Sections 40, 42 and 43 of the Act providing as to which judgment would

be conclusive proof of what is stated therein.   

To the same effect are the decisions of some of the High Courts.   

In Mt. Daropti vs. Mt. Santi [1929 Lahore 483], it was held:

“The learned District Judge has held that the will was either a forgery or had been executed under “undue influence”.  As regards “undue influence” here  was  neither  any  plea,  nor  evidence  on  the record  to  support  the  learned  Judge’s  finding. Moreover, these questions could not be raised in

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the  present  suit  until  and  unless  the  letters  of administration granted to Mela Ram was revoked. It  was  held  in  Komollochun  Dutt  v.Nilrutten Mandal (1897)  4  Cal.  360,  in  somewhat  similar circumstances under the Succession Act of 1865, that  where  it  is  alleged  that  a  probate  has  been wrongly granted, the proper course is to apply to the Court which granted the probate to revoke the same.  The grant of letters of administration in the present case stands on the same footing.  The grant of letters of administration so long as it subsists is conclusive  evidence  as  regards  the  proper execution  of  the  Will  and  the  legal  character conferred on the  administrator  :  vide Ss. 12 and 59,  Probate  and  Administration  Act,  1881, corresponding to Ss.227 and 273, Succession Act, 1925,  which  now  incorporates  that  Act,  S.41, Evidence Act etc: Babu Lal v. Hari Bakhsh (1918) 13 P.R. 1918; Venkataratnam v. Ram Mohana Rao (1916) 31 M.L.J. 277; Kishore Bhai Rewa Das v. Ranchodia (1916) 38 Bom. 427…”

In  Darbara Singh  vs.  Karminder Singh & ors. [AIR 1979 Punjab &

Haryana 215], it was held:

“5. The provision of sub-section (1) of Section 8 of the Act makes it expressly clear in unqualified terms that  no  personal  covenant  of  the  guardian shall be binding on the minor. It means only this that,  when  looked  from the  stand  point  that  the aforesaid  interdiction  is  added  at  the  fag-end  of Section 8(1) by way of proviso to the clause that preceded  it,  a  guardian  though  well  within  his right to enter into a contract for the benefit of the minor,  but  the  said  contract  would  not  be enforceable  against  the  minor  even when  it  was entered for his  benefit  and would be voidable  at his instance.”

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A Constitution Bench of this Court in  Iqbal Singh Marwah & anr.

(supra) also does not appear to have dealt with this aspect of the matter.  

The  question,  however,  would  be  as  to  whether  despite  the  same

should we interfere with the impugned judgment.  We do not think that we

should.  Firstly, because the criminal case was instituted much prior to the

initiation of the probate proceeding and secondly because of the conduct of

the appellant and the stage in which the probate proceedings are pending.  

For the aforementioned purpose, it may not be relevant for us to enter

into  the  disputed  question  as  to  whether  the  Will  is  surrounded  by

suspicious circumstances as the same would appropriately call for decision

in the testamentary proceeding.  Pendency of two proceedings whether civil

or criminal, however, by itself would not attract the provisions of Section 41

of the Evidence Act.  A judgment has to be pronounced.  The genuineness

of the Will must be gone into. Law envisages not only genuineness of the

Will but also explanation to all  the suspicious circumstances surrounding

thereto  besides  proof  thereof  in  terms  of  Section  63(c)  of  the  Indian

Succession  Act,  and  Section  68  of  the  Evidence  Act.  [See  Lalitaben

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Jayantilal Popat  vs.  Pragnaben Jamnadas Kataria & ors. 2009 (1) SCALE

328]

14. The FIR was lodged not only in regard to forgery by the Will but also

on the cause of action of a trespass.  Appellant  admittedly is facing trial

under Section 420, 468 and 448 of the IPC.  It is, thus, possible that even if

the Will is found to be genuine and that no case under Section 468 of the

IPC  is  found  to  have  been  made  out,  appellant  may  be  convicted  for

commission  of  other  offences  for  which  he  has  been  charged  against,

namely,  trespass  into  the  property  and  cheating.   If  it  is  found  that  the

appellant is guilty of trespass, he may be asked to handover possession of

the premises in question to the complainant.  

15. Exercise  of  such  a  jurisdiction  furthermore  is  discretionary.  As

noticed by several decisions of this Court, including two Constitution Bench

decisions, primacy has to be given to a criminal case.  The FIR was lodged

on  19.9.2002.   Not  only  another  civil  suit  is  pending,  as  noticed

hereinbefore, but a lis in relation to mutation is also pending.   

Whereas  the  criminal  case  is  pending  before  the  Delhi  court,  the

testamentary suit  has  been filed  before  the Jharkhand High  Court.  Since

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2003 not much progress has been made therein.  The Will has not been sent

to  the  handwriting  expert  for  his  opinion,  which  is  essential  for

determination of the question in regard to the genuineness of the Will.  It is

alleged that  the Will  was  registered at  Hazaribagh after  the  death of  the

testatrix.  For the last seven years in view of the pendency of the matters

before the High Courts in different proceedings initiated by the appellant,

the  criminal  case  has  not  proceeded,  although  as  noticed  hereinbefore

charge-sheet has been filed and cognizance of the offence has been taken.   

We, therefore,  are of the opinion that it  is not a fit  case where we

should  exercise  our  discretionary  jurisdiction  under  Article  136  of  the

Constitution of India having regard to the facts and circumstances of the

present case.  

16. For the aforementioned reasons, we find no merit in this appeal.  The

appeal is dismissed.  No costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J.

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[Lokeshwar Singh Panta]

..…………………………..…J. [B. Sudershan Reddy]

New Delhi; MARCH 03, 2009

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