Smt. Ram Kaur vs General Public

J.S. Kbehar, J.—Ishar Singh was the owner of a number of immovable properties including plot No. 66-67 and the house constructed thereon situated in Kamla Nagar, Hisar. It is not disputed that the aforesaid Ishar Singh did not have a natural born child. It is also not disputed that his wife had pre-deceased him. The case set up by the petitioner, who is the sister of said Ishar Singh, is that during his life time, Ishar Singh lived with her, and in lieu of the services rendered by her, he executed a Will dated 23.5.1998 in her favour in respect of plot No. 66-67 and the house constructed thereon, situated in Kamla Nagar, Hisar. After the execution of the aforesaid Will, Ishar Singh is stated to have died on 19.9.1998, whereupon the petitioner preferred a probate petition on 13.10.1998 claiming plot No. 66-67 and the house constructed heron, situated in Kamla Nagar, Hisar, on the basis of the Will dated 23.5.1998. In furtherance an application for an interim injunction moved by petitioner Ram Kaur along with the probate petition, status quo was ordered to be maintained in respect of the property in question.

Inderjeet Kaur is stated to be the adopted daughter of Ishar Singh. She lodged a first information report on 26.11.1998 against petitioner Ram Kaur alleging that Ram Kaur had forged the Will dated 23.5.1998 with the motive of grabbing the property of Ishar Singh.

During the course of proceedings in the civil Court, wherein the probate petition of Ram Kaur was being entertained, the counsel for petitioner Ram Kaur produced the original Will with a request that the same be put in a sealed cover. It is not disputed that the original Will is with the civil Court and that it was duly sealed on the basis of the written request made by the counsel for the petitioner. The request of petitioner Ram Kaur to seal the Will was in furtherance of the desire that the Will may not be tampered with while in the custody of the Court.

In furtherance of the first information report got registered on 26.11.1998 by Inderjeet Kaur against petitioner Ram Kaur, Sub Inspector, Civil Lines, Hisar, moved an application dated 18.12.1998, requesting for the release of the original Will in order to have the signatures of the testator Ishar Singh compared with his admitted signatures at the Forensic Science Laboratory, Madhuban. The request of the Sub Inspector, Civil Lines, Hisar, was contested tooth and nail by the petitioner, who feared that the Will might be tampered with if it was released by the Court, since the husband of Inderjeet Kaur i.e. Reminder Singh was alleged to be an extremely influential person. The District Judge, Hisar, vide his order dated 4.3.1999, directed that the Will be sent to the Forensic Science Laboratory, Madhuban, on the expenses of the prosecution. It is the order of the District Judge, Hisar, dated 4.3.1999, which is being impugned in the instant case by petitioner Ram Kaur.

Learned counsel for the petitioner has relied on the decision in Sardool Singh and another v. Smt. Nasib Kaur, 1957 SSC 146. Paragraph 2 of the aforesaid judgment is relevant for the present case. The same is extracted hereunder for facility of reference :

"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, Ram-pur. 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 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. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so that the question is wide open before the lower Courts."

Two other judgments have been relied upon to the same effect i.e. Rattan Singh and others v. State of Haryana and others, 1996(1) RCR 57: 1996(3) RCR 354 (P&H), and Sat Pal Singh v. State of Punjab, 1997(2) RCR 278. A perusal of the aforesaid judgments would show that it is now a well settled proposition of law that while a civil suit is pending on a subject matter criminal proceedings cannot be permitted to continue. It is undoubtedly true that in the instant probate petition filed by the petitioner the validity of the Will and its genuineness is the sole question to be determined. While this determination is pending before the civil Court, the prosecuting agency cannot be permitted to examine the same factual dispute. The aforesaid judgments relied upon by the learned Counsel for the petitioner clearly prohibit the iforesaid course of action. By the impugned order Jated 4.3.1999, the District Judge, Hisar, has permit-led the investigation of complaint made by respondent Inderjeet Kaur. This determination in the impugned order is, therefore, totally illegal and contrary to law. I have no hesitation, therefore, to hold that the District Judge, Hisar, exercised his jurisdiction illegally and with material irregularity by permitting the examination of the Will dated 23.5.1998 by the Forensic Science Laboratory, Madhuban, at the behest of the prosecuting agency. In other words, the Court permitted the prosecuting agency to determine an issue which was the sole responsibility of the civil Court and while the aforesaid issue was subject- matter of determination by the Civil Court, the same could not have been allowed to be determined by any other agency including the agency investigating the allegations in furtherance of the first information report.

Learned counsel for the respondent pointed out that the issue raised by the petitioner was beyond the scope of Section 115 of the CPC and in view of the decision rendered in The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, , this Court could not entertain the plea raised by the petitioner. In view of the finding recorded above that the District Judge had indeed exercised his jurisdiction illegally and with material irregularity by transgressing the law laid down by the Apex Court, the objection raised on behalf of the respondent is thor-oughlymisconceived.

Another argument addressed on behalf of the respondent was that the petitioner filed Criminal Misc. No. 8874-M of 1999 in this Court challenging the initi-ating of the criminal proceedings by respondent Inder-jeet Kaur against petitioner Ram Kaur. The order passed by this Court 24.3.1999 in furtherance of the aforesaid petition is extracted hereunder for facility of reference:

"The petitioner seeks quashing of the order dated 4.3.1999, passed by the District Judge, Hisar on an application moved by the Sub Inspector, Police Station Civil Lines, Hisar on 18.12.1998 in the probate proceedings. The Sub Inspector aforesaid was investigating a criminal case relating to the Will which was on the file of the District Judge in the probate case. The impugned order has been passed in the probate case, which is a civil proceeding and the Court which passed the impugned order is District Judge, Hisar. As such, the impugned order is amenable to civil appeal or civil revision, as the case may be. In these circumstances, the petition u/s 482 Cr.P.C. challenging the said order will not lie. Accordingly, the petition is disposed of as not maintainable. The petitioner, if so advised, may file an appropriate petition by way of a civil appeal or civil revision as the case may be."

The submission made by the learned Counsel for the respondent is that the aforesaid order was of no avail to the petitioner. The petitioner could have only challenged the institution of criminal proceedings as was indeed the case in the three judgments relied upon by the learned Counsel for the petitioner, (reference of which has been made above) and that it was not open for the petitioner to assail an order passed by a civil Court. This submission of the learned Counsel is also unjustified. It is the order dated 4.3.1999 by which the prosecuting agency has been permitted to determine the veracity of the Will dated 23.5.1998. But for the aforesaid order, the prosecuting agency could not have investigated into the authenticity of the Will, By the order dated 4.3.1998, the civil Court permitted the investigation into the allegations of forgery, whereas in view of the decisions referred to above this was im-permissible during the pendency of acivil case dealing with the same issue. There is, therefore, no infirmity in the order of this court in Crl. Misc. No. 8874-M of 1999. referred to above, nor in the filing of the instant petition, since the investigation about the veracity of the Will by the prosecuting agency is indeed based on the order of the civil Court dated 4.3.1999.

It was next contended by the learned Counsel for the respondent that the application moved by the Sub Inspector, Civil Lines, Hisar, on the basis of which order dated 4.3.1999 was passed, may be treated as an application on behalf of the respondent and that the Will dated 23.5.1998 may be permitted to be examined by the Forensic Science Laboratory, Madhuban, as if the request was at the behest of respondent Inderjeet Kaur. The investigation at the instance of the prosecuting agency and verification at the instance of respondent Inderjeet Kaur cannot be treated to be as one and the same thing. If respondent Inderjeet Kaur is desirous of having the Will in question verified for authenticating the signatures of the testator or otherwise from the Forensic Science Laboratory, Mad-huban, it is open to her to move such an application during the course of the proceedings in the probate petition and if such an application is filed, it is obvious that the same would be disposed of in accordance with law, but the application filed by the Sub Inspector, Civil Lines, Hisar, cannot be treated as an application preferred by respondent Inderjeet Kaur.

Another grouse made on behalf of the respondent is that on application filed by petitioner Ram Kaur, the civil Court permitted Shri N.K. Jain, Document Expert, Ambala, to examine the Will and to take photographs of the signatures of Ishar Singh and also to compare them with his admitted standard signatures. This application was allowed by the District Judge, Hisar. The photographs were indeed taken by the said Shri N.K. Jain in the presence of both the counsel. In view of the aforesaid inspection and examination of the Will dated 23.5.1998, it is submitted that no prejudice would be caused to the petitioner in case the Will is examined at the behest of the prosecuting agency of the Forensic Science Laboratory, Madhuban. This submission on behalf of the respondent is also unacceptable in view of the reasons already expressed above. Like the petitioner, respondent Inderjeet Kaur may also lead her own evidence in respect of the Will dated 23.5.1998 in terms of the provisions of the Indian Evidence Act and the Indian Succession Act in the probate petition. However, there is no occasion whatsoever, at this juncture to allow the prosecuting agency to deliberate into an issue pointedly pending before a civil Court, specially in the background of the legal position acknowledged in the impugned order that the findings of the civil Court are binding on the criminal Court but not vice-versa.

For the reasons recorded above, this petition is allowed. The order dated 4.3.1999, whereby the civil Court allowed the prosecuting agency to have the authenticity of the Will dated 23.5.1998 verified, is set aside.

In view of the relationship of the parties as also in view of the agitation which has led to the initiation of all kinds of litigation, it is considered appropriate to direct the civil Court dealing with the probate petition to dispose of the same as early as is practically possible.

Petition allowed.