TMI Blog2009 (3) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, 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. 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 judgments. A judgment in rem indisputably is conclusive in a criminal as well as in a civil proceeding. We have noticed the decision in K.G. Premshanker [ 2002 (9) TMI 849 - SUPREME COURT] . 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. Pendency of two proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 actu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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