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Darshan Singh Vs. Kuldip Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 528 of 1979
Judge
Reported inAIR1979P& H250
ActsSuccession Act - Sections 213 and 228; Evidence Act - Sections 41
AppellantDarshan Singh
RespondentKuldip Singh
Cases Referred and R. Viswanathan v. Rukn
Excerpt:
.....judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a..........been executed by ram kishan singh in his favour. the defendant inter alia pleaded that ram kishan singh executed a valid will in his favour and he obtained letters of administration from the high court of justice at birmingham on the basis of that will on aug. 9, 1977(?) which operated as res judicata between the parties. one of the issues framed by the court was as follows:--''whether the order dated august 9, 1977 passed by the high court of justice at birmingham operates as res judicata between the parties?''the said issue was treated as a preliminary issue. the court held that the order of the high court at birmingham does not operate as res judicata and consequently decided the issue against the defendant. he has come up in revision to this court.3. it is contended by the learned.....
Judgment:
ORDER

1. This is a revision petition against the order of the Subordinate Judge, Jullundur, dated February 20, 1979.

2. Kuldip Singh plaintiff instituted a suit for declaration to the effect that he was the owner of the property in dispute as a sole heir of Ram Kishan Singh, his father, and the mutation No. 2447 sanctioned on May 16, 1975, in the name of the defendant on the basis of an alleged will by his father is illegal, null, void and inoperative against him. The case of the plaintiff is that after the death of his father Ram Kishan Singh, he became owner of the property in dispute, being his legal heir. He averred that the defendant got the mutation sanctioned on May 16, 1975 on the basis of will dated September 11, 1973, alleged to have been executed by Ram Kishan Singh in his favour. The defendant inter alia pleaded that Ram Kishan Singh executed a valid will in his favour and he obtained letters of administration from the High Court of Justice at Birmingham on the basis of that will on Aug. 9, 1977(?) which operated as res judicata between the parties. One of the issues framed by the Court was as follows:--

''Whether the order dated August 9, 1977 passed by the High Court of Justice at Birmingham operates as res judicata between the parties?''

The said issue was treated as a preliminary issue. The Court held that the order of the High Court at Birmingham does not operate as res judicata and consequently decided the issue against the defendant. He has come up in revision to this Court.

3. It is contended by the learned counsel for the petitioner that the judgment of a Probate Court is a judgment in rem and is binding on the whole world, in addition to the parties. According to the counsel, the letters of administration were applied for by the petitioner on the basis of the will and the Court pronounced that the will had been properly executed. He argues that the plaintiff cannot challenge it in a suit and say that the will had not properly executed. It is also submitted by him that if he wants to challenge the execution of the will, he can do so before the High Court of Justice at Birmingham.

4. I have heard the learned counsel for the parties at a considerable length. It is well settled that the judgments of Probate Courts are judgments in rem and these are binding on all persons whether they are parties to those proceedings or not, whereas the judgments of the Civil Courts are judgments in personam and bind the parties to the suit, only. Letters of administration granted on the basis of a will attached, by a competent court is a judgment in rem regarding execution of the will and it binds the world at large. In this regard, reference may be made to Surinder Kumar v. Gian Chand, AIR 1957 SC 875, wherein it was held that the judgment of a Probate Court granting probate of a will in favour of the petitioner is presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem Judgments in rem. as already observed above, are judgments binding on the whole world. A reference may also be made to Blackwood & Sons Ltd. v. A. N. Parasuraman, AIR 1959 Mad 410, where it was held as follows:--

'S. 213 of the Succession Act, however, would certainly not apply to a case where under the provisions of the Indian Succession Act, a person who asserts his rights as a legatee or as an executor is disabled by law from obtaining a pro-bate from any court in India. This section is primarily concerned with wills of Indian Nationals and those executed in India. Section 228 of the Succession Act enables the granting of an ancillary probate in the case of foreigners. It stands to reason that S. 213 of the Succession Act cannot be construed as insisting on the production of a probate which no court in India is competent to grant in regard to a will for which probate has been granted by a foreign Court of. competent jurisdiction. The foreign probate would be sufficient proof of title of the legatee or the executor and admissible in evidence under S. 41 of the Evidence Act in the proof of that right.'

It is further observed that the probates which are certified copies of the probates granted by the Probate Division of the High Court of England are admissible in evidence under S. 82. Section 41 of the Evidence Act, deals with judgments of probate, matrimonial, admiralty and insolvency courts. It inter alia provides that a final judgment of a competent court in exercise of probate 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 and such judgment is conclusive proof that any legal character which it confers accrued at that time when such judgment, came into operation. From a reading of the aforesaid section and the authorities it is clear that the letters of administration granted by the High Court of Justice at Birmingham on the basis of the will of late Ram Kishan Singh conclusively proves the execution of the will. It may be appropriate to point that Ram Kishan Singh is alleged to have executed the will in United Kingdom where he was working and, therefore, the High Court of Justice, at Birmingham had the jurisdiction to decide the matter. In case the plaintiff wants to challenge the execution of the alleged will he can do so in that court alone. Therefore, the judgment ox the High Court of Justice at Birmingham is final so far as the execution of the alleged will of Ram Kishan Singh is concerned and the matter cannot be gone into or reopened in the civil court in the present suit. The judgment will operate as res judicata only to that extent.

5. The learned counsel for the respondent referred to Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471 and R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1. In Mrs. Hem Nolini Judah's case (supra), the plaintiff-respondent claiming as a legatee under a will of which she had obtained letters of administration filed a suit for declaration of her title in regard to the property included in the will. She sought to establish that the ownership of that property vested in her testator as a legatee under a will executed in favour of her testator by another person. No probate or letters of administration had however been obtained in regard to that will. Taking into consideration the facts and circumstances of that case it was held that the questions of title are not decided in proceedings for the grant of probate or letters of administration. The abovesaid observations of their Lordships were made in different context and related to the facts of that case. In my view, the respondent cannot derive any benefit from the aforesaid observations. R. Viswanathan's case (supra) does not specifically deal with the judgment of a probate Court. Consequently, the observations in that case are not applicable to this case.

6. For the aforesaid reasons, I accept the revision petition as indicated above. The parties are directed to appear in the trial Court on August 31, 1979. No order as to costs.

7. Petition allowed.


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