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Code of Criminal Procedure, 1973: s. 309 – Prayer for stay of criminal proceedings pending probate case – Criminal case alleging the Will to be forged – HELD: Primacy has to be given to criminal case over civil case – Orders of courts below declining to stay criminal proceedings need no interference, in view of the fact that criminal case was instituted much prior to initiation of probate proceedings and because of the conduct of the appellant and the stage in which the probate proceedings are pending – Practice and Procedure – Evidence Act, 1872 – s.41 – Constitution of India, 1950 – Article 136. Evidence Act, 1872: s. 41 – Pendency of probate case – Its effect on criminal case alleging the will to be forged – Held: Pendency of two proceedings, whether civil or criminal, by itself would not attract the provisions of s. 41 – A judgment has to be pronounced – The genuineness of the will must be gone into – s. 41 would become applicable only when a final judgment is rendered – On facts, courts below rightly declined to stay criminal proceedings – Code of Criminal Procedure, 1973 – s.309. The appellant filed an application before the Sub-Registrar, Hazaribagh, Jharkhand for registration of a will dated 3.5.1998 stated to have been executed by one Mst. `SA’, and applied before the Delhi Development Authority for grant of mutation in respect of a property in Delhi on the basis of the alleged will. Mst. `SM’, the daughter of Mst. `SA’ also made an application to the DDA for grant of mutation in respect of the Delhi property in her favour. Mst. `SM’ filed a civil suit in Patna questioning the genuineness of the will dated 3.5.1998,and also filed a criminal complaint u/ss 420/468/444/34 IPC in Delhi against the appellant alleging the will dated 3.5.1998 as a forged one. The appellant filed an application for grant of probate in respect of the will dated 3.5.1998 before the Jharkhand High Court u/s 276 of the Indian Succession Act, 1925. The appellant first filed a writ petition before the Delhi High Court seeking to quash the criminal proceedings and on its dismissal filed an application u/s 309 Cr.P.C. before the Metropolitan Magistrate seeking stay of the proceedings in the criminal case. The said application was dismissed. Appellant’s revision petition also having been dismissed by the High Court, he filed the instant appeal. Meanwhile Mst. `SM’ died after having executed a will in favour of respondent no.2, and the Delhi property was mutated in his name. He was impleaded as respondent no.2 in the appeal. It was contended for the appellant that a judgment in probate proceedings being a judgment in rem as envisaged u/s 41 of the Evidence Act, the criminal proceedings should have been directed to be stayed. =Dismissing the appeal, the Court HELD: 1.1. Section 41 of the Evidence Act, 1872 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 would take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view s.43 of the Evidence Act may be produced in another proceeding. It is 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. [Para 12] [1034-D-G] Surinder Kumar & Ors. vs. Gian Chand & Ors. AIR 1957 SC 875; Sardool Singh & Anr. vs. Smt. Nasib Kaur 1987 (Supp.) SCC 146; Mt. Daropti vs. Mt. Santi 1929 Lahore 483 and Darbara Singh vs. Karminder Singh & Ors. AIR 1979 Punjab & Haryana 215 – referred to. Commissioner of Income Tax, Mumbai vs. Bhupen Champak Lal Dalal & Anr. (2001) 3 SCC 459, cited. 1.2. Pendency of two proceedings whether civil or criminal, however, by itself would not attract the provisions of s.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 s.63(c) of the Indian Succession Act, and s.68 of the Evidence Act. [Para 13] [1038-C-D] Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria & ors. 2009 (1) SCALE 328, relied on. 1.3. As noticed in several decisions of this Court, including two Constitution Bench decisions*, primacy has to be given to a criminal case over a civil case. 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 in it and not in terms of the evidence brought in the criminal proceedings. In the instant case, the FIR was lodged not only in regard to forgery by the Will but also on the cause of action of a trespass. Not only another civil suit is pending, but a lis in relation to mutation is also pending. [Para 10, 14 and 15] [1029-G; 1038-E; 1039-A] *M.S. Sheriff & anr. vs. State of Madras & Ors. AIR 1954 SC 397 and Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. (2005) 4 SCC 370, relied on. K.G. Premshanker vs. Inspector of Police and Anr. (2002) 8 SCC 87 M/s Karam Chand Ganga Prasad & anr. etc. vs. Union of India & Ors. (1970) 3 SCC 694 and P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu AIR 2008 SC 1884, referred to. 1.4. Whereas the criminal case is pending before the Delhi court, the testamentary suit has been filed before the Jharkhand High Court. Since 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 its genuineness. 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 charge-sheet has been filed and cognizance of the offence has been taken. Exercise of such a jurisdiction furthermore is discretionary. [Para 15] [1039-A-C] 1.5. In the facts and circumstance of the case, orders of the Metropolitan Magistrate and the High Court need not be interfered with. 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. Therefore, it is not a fit case where the Court should exercise discretionary jurisdiction under Article 136 of the Constitution of India. [Para 15] [1039-D] Case Law Reference: AIR 1954 SC 397 relied on para 10 (2002) 8 SCC 87 referred to para 10 (1970) 3 SCC 694 referred to para 10 (2005) 4 SCC 370 relied on para 11 AIR 2008 SC 1884 referred to para 11 1987 (Supp.) SCC 146 referred to para 12 (2001) 3 SCC 459 cited para 12 AIR 1957 SC 875 referred to para 12 1929 Lahore 483 referred to para 13 AIR 1979 Punjab & Haryana 215 referred to para 13 2009 (1) SCALE 328 relied on para 13 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 416 of 2009. From the Judgment and Order dated 23.07.2008 of the High Court of Delhi in Criminal Revision No. 184 of 2005. Dinesh Dwivedi, S.K. Sinha, Manish Shanker and Prateek Dwivedi for the Appellant. A. Sharan, ASG, A.M. Singhvi, S.C. Maheshwari, Neera Gupta, Sadhna Sandhu, Anil Katiyar, Sandhya Goswami, H.C. Kharbanda and M.P.S. Tomar for the Respondent.

REPORTABLE

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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
JUDGMENT
S.B. Sinha, J.
1. Leave granted.

2. Effect of pendency of a probate proceeding vis-`-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
2

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.
3

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.
4

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.
5

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.”
7

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.
8

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
9

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
10

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.
11

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
12

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.
13

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
14

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
15

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
16

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:
17

“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-
18

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
19

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-`-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
20

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.”
21

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
22

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.”
23

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
24

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
25

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.
26

[Lokeshwar Singh Panta]
……………………………….J.
[B. Sudershan Reddy]
New Delhi;
MARCH 03, 2009

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