- (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 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. 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 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. 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 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. 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. 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 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.;