TaxTMI 
TaxTMI 
2009 (3) TMI 1056
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....out 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. Syeda filed a writ petiti....
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....fferent 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 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 ter....
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....ion 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....
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....erty 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 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 proceeding can be taken by the criminal court upon arriving at the satis....
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....t 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 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 f....
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....on 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....
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....e 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 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 Bridg....
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.... 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 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 th....
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....d 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 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 tresp....