Once a Will has been Probated by a competent Court, its genuineness cannot be questioned by initiating criminal proceedings: J&K High Court

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  • Post published:March 7, 2021
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Once the Will is proved to be genuine by the competent Court, it is not legally permissible to undertake investigation with regard to the genuineness of the Will, particularly when the probate granted by the competent Court has not been revoked or altered, the bench observed.

The Court in the instant case held that the criminal proceedings against the petitioners would amount to an abuse of the process of law because the same would militate against the legal status of the conclusiveness of genuineness of the Will which stands probated by the orders of a competent Court.

Background:

The Petitioners had invoked Section 561-A of J&K Cr.P.C, which is in pari-materia with Section 482 of Central Cr.P.C to quash the impugned FIR for offences under Sections 420/465/467/468/471/120-B RPC registered with Police Station, Crime Branch, Jammu.

The Petitioners stated that the complaint was filed against them alleging that they have fabricated and forged a Will dated 16.10.1998 purported to have been executed by the father of respondent No.2/complainant. During the course of the investigation, the original Will Deed was sent to FSL, Jammu for comparison of signatures and expert opinion pertaining to Will Deed of testator namely Wazir Mohd. As per the expert opinion, the report was found positive in favour of respondent No.2/complainant.

Arguments

The Petitioners argued that once the Will in question stands probated by the order of learned Principal District Judge, Jammu, the same becomes conclusive as to the representative title against all persons.

The learned Counsel further contended that the probate of a Will when granted establishes its genuineness and it cannot be questioned except in accordance with the provisions contained in the J&K Probate and Administration Act, 1977 (1920 AD) (hereinafter referred to as the ‘Act’).

According to the learned counsel, the genuineness of a Will cannot be reopened in the criminal proceedings by holding an investigation into the said question.

On the other hand, the learned AAG argued that, even if the genuineness of the Will in question has been proved in the probate proceedings, the said question can be reopened in the criminal proceedings and he also relied on the judgment of Supreme Court in the case of Iqbal Singh Marwah and another vs. Meenakshi Marwah and another, (2005) 4 SCC 370.

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He further argued that the investigation of the instant case is at its infancy and the same cannot be scuttled at this stage. According to him, it is not open to this Court in these proceedings to examine and analyze the material on record and once the Court finds that the FIR discloses prima facie commission of a cognizable offence, the Court should stay its hand and allow the investigating agency to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Cr.P.C. In this regard, reliance has been placed upon the judgment of Supreme Court in the case of Dineshbhai Chandubhai Patel vs. State of Gujarat and others, (2018) 3 SCC 104.

Observations of the Court:

The Bench said that the probate of a Will when granted establishes the Will from the death of the testator and the effect of probate of Will over the property contained therein has conclusiveness attached to it.

The Court relied on the judgment of the Supreme Court in Smt. Rukmani Devi And Ors. vs Narendra Lal Gupta (1985) 1 SCC 144, wherein the Supreme Court, while interpreting the provisions contained in Section 273 of Indian Succession Act which is in pari materia with Section 59 of J&K Probate and Administration Act held that a probate granted by a competent court is conclusive of the validity of such Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate.

The Court went on to hold that that a decision of the probate court being a judgment in rem would not only be binding on the parties to the probate proceedings, but would be binding on the whole world.

The Court further referred to the judgment in Satya Charan Das and ors. vs Hrishikesh Karar and ors, AIR 1959 Cal 795, wherein the Supreme Court observed that the grant of probate establishes conclusively the legal character of the person to whom the grant is made. Further, the grant is not only relevant but conclusive evidence against all. It is conclusive evidence of the validity and the execution of the Will and of the testamentary capacity of the testator.

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The Court importantly said that once a Will has been probated, it is conclusive as to the execution and validity of the Will, not only upon all the parties who might be before the Court, but also upon all other persons whatever in all proceedings arising of the Will or claims under or connected therewith.

The only remedy available to a person aggrieved by the order of probate is to approach the same Court by way of an application for revocation of the probate. It is not open to an aggrieved person to question the genuineness of the Will which has been probated by resorting to criminal proceedings.

The Court further observed that the proper course for the respondent No.2/complainant in the instant case was to apply for revocation of the probate in terms of Section 50 of the Probate and Administration Act. In fact, illustration (c) to the explanation to Section 50 of the Act, provides that probate of a will, which is shown to be forged, can be revoked.

The Court opined that if the respondent No.2 herein would have succeeded in proceedings for revocation of the probate, the question of launching of criminal prosecution against propounders of Will and witnesses would have arisen. Respondent No.2/complainant, instead of choosing this method, it appears, has jumped the gun and directly launched the criminal proceedings against the petitioners without first seeking the revocation of the probate, which is impermissible in law.

The Court ultimately allowed the petition and quashed the FIR as well as the proceedings emanated therefrom.

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Case Details:
Saqib Ali Shah And Others vs State Of J&K And Another on 27 January, 2021
CRM(M) No. 611/2019, CrlM No. 1421/2019.
Mr.Virender Bhat, Counsel for the Petitioners
Mr. Raman Sharma AAG for R-1.
Ms. Meenakshi Salathia Advocate for R-2.