Skip to content


Misri Lal Vs. Tola Ram - Court Judgment

LegalCrystal Citation
SubjectProperty;Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 246 of 1983
Judge
Reported in1984RLR125
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 195
AppellantMisri Lal
RespondentTola Ram
Advocates: C.K. Sud and; D.C. Mathur, Advs
Excerpt:
.....must continue simultaneously even if subject matter overlapping - in case of compulsion of stay civil proceedings should be stayed. - - there may, thereforee, be some justification for the contention that the mortgagor had as good as reconciled to the idea of relinquishing all his right in the property in favor of the mortgagee but since the value of the property must have considerably increased by lapse of time, the attitude of his heirs may have changed. if the mortgagor had more or less relinquished his rights either because he could not repay or because of the reasons attributed in the purported will in that ganga ram and misri lal had been looking after him during his long illness, the mortgagor may as well have made the will. there is another interesting circumstance which..........that the complainant may seek their revival should he be advised to do so on the outcome of the civil proceedings. on the conclusion of civil proceedings, it would also be open to the complainant to initiate fresh proceedings directly or through the civil court since the plea that there was a valid will is bound to be set up in the civil proceedings. ordinarily, civil and criminal proceedings are independent of each other and even if the subject-matter overlaps, they may be continued simultaneously. it is also well-settled that ordinarily if one of the two proceedings must be stayed, it is the civil proceedings that are stayed. this is based on the distinction between the two proceedings. criminal proceedings are based on public policy while the civil proceedings are intended to.....
Judgment:

H.L. Anand, J.

(1) This petition u/s. 482 of the Cr. P.C. is directed against proceedings on a complaint based on allegations of fraud, forgery and use of forged documents as genuine and the order of the trial court framing charge against the petitioner, among others.

(2) The petition has been filed in the following circumstances. Property No. 2986- 87, in Gali No. 39, Beadonpura, Karol Bagh, at one time belonged to one Ladu Ram. By a deed of mortgage of 7.1.1948, which was duly registered (Ex. Public Witness 6/1), Ladu Ram, mortgaged the said property, without possession, in favor of one Lalu Ram. Ladu Ram died on 8.7.1973 and until then, the mortgage had neither been redeemed nor redemption was foreclosed. It was until then not subject-matter of any proceedings either. By a legal notice of 11.4.1974, heirs of Ladu Ram, namely, his wife his son Tota Ram and his daughters, sought redemption of the property and, inter alia, claimed delivery of possession of it contending that it was a mortgage with possession and that the possession of the property had been delivered to Lalu Ram, the mortgage. In reply to this, Counsel for Lalu Ram, claimed by his notice of May 12, 1974, Ex. Public Witness . 7/4, that

'Ladu Ram could not pay off the mortgage money and interest was accumulating. He, thereforee, relinquished the title and possession of the property 'to Lalu Ram'.

It was further claimed that Ganga Ram, son of Lalu Ram, had since been in exclusive possession of the property and the house-tax etc. was also being paid by the said Ganga Ram on behalf of Lalu Ram and that the rights of Ladu Ram in the property 'stood extinguished by the lapse of time.' It was further alleged in the reply that the notice to which it was a reply had been sent because the value of the property had since increased. There was no further correspondence between the parties. Lalu Ram died in March 1976. He was survived by three sons, Ganga Ram, Mohar Singh and Misri Lal, and two daughters. It is alleged that in May, 1978, the heirs of Ladu Ram discovered that Ganga Ram and Misri Lal, in conspiracy with one Jawaharlal, Puran Chand and certain others forged a document purporting to be the will of Ladu Ram, bequeathing the mortgaged property in favor of Ganga Ram and Misri Lal. The Will is said to have been executed on June 5, 1973 and purported to have been attested by Jawaharlal and Puran Chand, aforesaid. It was further alleged that on the basis of the aforesaid forged document and pursuant to the aforesaid conspiracy, Ganga Ram and Misri Lal got the property mutated in their favor in the records of the Dda in 1974. The matter was reported to the police on or about 26.7.1978. The police did not take any action and consequently on 11.8.1978, Tota Ram, respondent in the present petition, filed a complaint in the Magistrate's court alleging offences, u/Ss. 420/468/471/34 Indian Penal Code . on the basis of the aforesaid allegations. It was further alleged in the complaint that false statements of certain persons were recorded in the proceedings before the Tehsildar of D.D.A., who impersonated as the heirs of Ladu Ram. It Is further alleged that on the basis of this material, a mutation order was made on 11.1.1974 in favor of Ganga Ram and Misri Lal. On perusal of the complaint and the statement of the complainant and the other material before him, the learned Magistrate summoned the accused persons and by an order of 22.1.1983, directed that a charge for offences u/Ss. 420/471 read with section 34 Indian Penal Code be framed against Misri Lal, the petitioner in the present proceedings, and two others, Jawaharlal and Puran Chand, Ganga Ram having since died on May 4, 1982. In course of the order, justifying farming of charge, learned Magistrate inter alia, relied on the denial of Tota Rani, the complainant, his mother and sister that they ever went to the office of the D.D.A, or made any statement, the disappearance of the records of Tehsildar, including the depositions said to have been recorded by him and the original Will and the contents of reply, Ex. Pw 7/A, which was sent in 1974 on behalf of Lalu Ram, and expressed the view that if the Will had been executed in 1973, as alleged, its execution would have been mentioned by Counsel for Lalu Ram in the aforesaid reply executed in 1974. Meanwhile, on 4.12.1979, a suit for redemption of the mortgage was filed in the civil court by the heirs of the mortgagor, Ladu Ram, and the same is said to be pending.

(3) The proceedings for mutation before Dda were initiated by an application, marked 'A' made by Ganga Ram, deceased, on 22.10. 1973, and is addressed to the Tehsildar. Mutation was sought on the basis of the aforesaid Will by Ganga Ram in his favor and in favor of Misri Lal. The original Will is said to have been produced before the Tehsildar and the depositions of certain persons, purporting to be wife, daughter and son of late Ladu Ram, had been recorded but neither the original Will nor those depositions form part of the original records of the D.D.A. which were produced in the court below. The order sheet of the Tehsildar, however, shows that the statements of certain persons claiming to be Smt. Nandi, Premi and Tota Ram, heirs of Ladu Ram, were recorded on 3.11.1973. The records of the D.D.A. inter alia, consist of the application of Ganga Ram, marked-A, a copy of the Will, marked-B and a statement of Jawaharlal, one of the attesting witnesses to the Will, who was identified by Puran Chand, marked- D. The records also include death certificate of Ladu Ram issued by Gram Panch, which is marked-G. There is no indication in the original record that Misri Lal ever appeared in the course of the proceedings.

(4) The proceedings on the complaint were sought to be quashed primarily on the ground that the complaint fell within the mischief of S. 195(b)(ii) and (iii) of the Code and the Court could not have taken cognizance of it except on the complaint in writing of the Authority concerned. This contention was based on the assumption that the Tehsildar of the Dda or the Dda itself was a 'Court' within'the meaning of S. 195(1)(b) of the Code. Section 195(3) legislatively defines the expression 'Court' as meaning a Civil, revenue or criminal court, and includes a tribunal constituted by or under a central, provincial or State Act if declared by that Act to be a Court for the purposes of the Section. There are two tests to determine if a particular officer is a court or not, namely, the authority to make evidence on oath and the authority to deal out justice i.e. to give a final decision in the matter. Broadly, what distinguishes a court from a quasi-judicial tribunal is that it is charged with a duty to 'decide disputes' in a judicial manner and declare the 'rights of parties in a definitive judgment' by giving the parties an opportunity as a matter of right to be heard in support of their claims and to adduce evidence in proof of it 1956 SC. 153 Although in the case of Mohan Lal 1974 2 SCC 628 the question if the officer conducting mutation proceedings was a court within the meaning of S. 195 or not was left open by the Supreme Court there can be no doubt that applying the test laid down by the Supreme Court, a Tehsildar dealing with mutation would not be a court because the mutation proceedings do not determine rights nor is there any finality in such proceedings 1971 Curr. L.J. 405 It was also not disputed that the authorities constituted by the Delhi Dev. Act have not been declared to be a 'Court' for the purposes of S. 195. There is, thereforee, no substance in the contention that cognizance of the offences could not have been taken except on a complaint by the Tehsildar or by the DDA. The proceedings, thereforee, could not be voided on the basis of the bar contained in S. 195 of the Code.

(5) Relief of quashing up of the proceedings was, however, sought to be justified on a number of other grounds on the merits of the allegations and on the insufficiency of the material placed before the Court for framing of charge.

(6) In the first instance, it was urged that even though Misri Lal. the petitioner, was a co-beneficiary of the will, Along with Ganga Ram, there is nothing on the record of the D.D.A. to indicate that Misri Lal either sought out mutation or otherwise propounded the Will, supported the claim for mutation or ever appeared at any stage of the proceedings before the Tehsildar and there was, thereforee, no material before the Court, which could justify the charge being framed against the petitioner. There is no substance in this contention. If Misri Lal is one of the beneficiaries under the Will, and this fact was not disputed, and the mutation was effected not only in favor of Ganga Ram, but also in favor of Misri Lal, and this fact is also beyond controversy, and there is an allegation of conspiracy or common intention, it would make little difference if a specific overt act is attributed to Misri Lal or not. In that context, the mere fact that, according to the records of the Tehsildar, he never applied for mutation under his signature, never appeared before the Tehsildar to support the purported Will, and made no statement in the proceedings, would not by itself exonerate him of the charge. The real question would be if on the existing material, it could be said that the complainant had been able to make out a case against him, as indeed, others which, if unrebutted would warrant his conviction or not.

(7) It was next urged that the only person who moved the D.D.A., sponsored the Will, produced the evidence and appeared throughout before the Tehsildar was the petitioner's brother Ganga Ram, and he having died, neither the complaint nor the charge really survived and it would be an abuse of the process of the court to continue the prosecution any further. This contention also suffers from a fallacy. If the Will had been forged for the benefit of the two brothers, pursuant to a conspiracy between them and certain others, or with the common intention of all or some of them and the mutation was secured on the basis of a forged document and perjured evidence and impersonation, the death of Ganga Ram, would not put an end to the cause for criminal action against the surviving accused.

(8) Thirdly, it was urged that the charge has been framed on insufficient material in that the original Will, and the depositions, said to have been made before the Tehsildar, were not available and even the scribe of the document was not produced before the Court. True, the original Will and the depositions have Mysteriously disappeared from the records of the Tehsildar and the complainant did not care to examine the scribe of the document and the handwriting expert in support of the allegations made in the com- plaint. But this is of no consequence because the statements of the complainant, and of the other heirs of Ladu Ram, to the effect that Ladu Ram never executed a Will and that none of them appeared before the Tehsildar in the mutation proceedings, and the further circumstance that the reply to the notice, Ex. Pw 7/A, sent in 1974 on behalf of Lalu Ram on his instructions, made no mention of the Will, constitutes sufficient material for the charge, even though it would be open to the petitioner, as indeed, the other accused persons, to give such Explanationn, with regard to the absence of any reference of the Will in the reply to the notice, as may be available to them., This material could not be said to be insufficient to frame the charge.

(9) Lastly, it was urged that, in any event, having regard to the inherent characteristics of the situation and the totality of the surrounding circumstances, it would, nevertheless, be an abuse of the process of the Court to allow the criminal proceedings to continue in the peculiar circumstances of this case, particularly, where the heirs of the mortgagor have already gone to the Civil court seeking redemption and an appropriate forum is now available to the parties, where the various questions in controversy in the complaint, with regard to the factum of the Will, could be adequately gone into. This case certainly his rather unusual features, some of which tend to point to the falsity of the charge, while the others may point to the contrary, on one reckoning. Mortgage was created as early as the year 1948. The mortgagor admittedly paid nothing and took no steps for the redemption during his life time. Subsequently, even his heirs took no steps and contented themselves by merely issuing a legal notice in 1974. The suit for redemption was filed only recently. There may, thereforee, be some justification for the contention that the mortgagor had as good as reconciled to the idea of relinquishing all his right in the property in favor of the mortgagee but since the value of the property must have considerably increased by lapse of time, the attitude of his heirs may have changed. If the mortgagor had more or less relinquished his rights either because he could not repay or because of the reasons attributed in the purported Will in that Ganga Ram and Misri Lal had been looking after him during his long illness, the mortgagor may as well have made the Will. True, mortgagor was not the owner of the entire interest in the property in that the only right he had was in the equity of redemption and the Will, if genuine, would have only affected that right since mortgagee's interest belonged to the mortgagee or his heirs and not to the mortgagor. If the mortgagor had made the Will in 1973, one would have expected the mortgagees to have set up at earliest opportunity and that opportunity came his way in 1974 when the notice was received. The reply to the notice admittedly does not specifically mention the Will but the heirs of the mortgagee may have an Explanationn for it, in that reply leaves no manner of doubt that the mortgagor had 'relinquished' all his right in the property, had delivered possession to the mortgagee and even the house-tax, etc were being allegedly paid by one of the beneficiaries of the will. It may perhaps be possible for the beneficiaries of the will to give a fair Explanationn of the contents of the reply to the notice, even though the fact may still stare them in the face that if there was a Will and would have put the matter beyond controversy it would have been mentioned in the reply. The mortgagee's heirs may. however, have a variety of Explanationns open to them as and when the matter goes to trial, whether in the criminal or in the civil court. The other feature that complicates the position in the mysterious disappearance from the records of the D.D.A. not only the original will but also the depositions said to have been made by persons who allegedly impersonated for the heirs of the mortgagor. There is another interesting circumstance which may have some impact on the fortunes of the parties in the two courts. The beneficiaries of the Will are the two brothers Misri Lal and Ganga Ram. But the mortgagee Lalu Ram was survived by three sons. He is Mohar Singh, who may also have his own grouse against the Will. His two brothers are the beneficiaries under it and not he. If Lalu Ram died intestate, on the Will being invalidated as being forged or otherwise, he could stand to benefit. He may. thereforee, be legitimately said to have a common cause with the heirs of Ladu Ram in casting doubt on the genuineness of the document. If the will -is genuine, he may also have his grouse against the brothers who kept him out of it. The complainant is alleged to have obtained a copy of the Will from Mohar Singh and it may be that the information with regard to mutation, if effected behind the back of the heirs of Ladu Ram, may have been conveyed to them by Mohar Singh. There is yet another interesting characteristic. The complainant rushed to the criminal court with allegations that Ladu Ram never executed a Will, that it had been forged by the accused persons and that the forged Will was used in the proceedings before the Tehsildar, where certain persons impersonated for the complainant, and the other heirs of the testator. But the complainant, on his own showing, never saw the original document because by the time he came to know of the secretive mutation, the original Will had disappeared. He never had a photo-copy of it either. How could the complainant, thereforee, have come to the conclusion that the Will was not a genuine document. A possible Explanationn of the complainant may be that if a Will had been made by Ladu Ram, the complainant and the other members of the family may have been told of it. But by its very nature, the Will is a confidential document and is normally disclosed or discovered after the death of the testator and such a document would be rarely disclosed to the heirs particularly, where the heirs were sought to be deprived of the estate of the deceased, as has happened in this case. There was some controversy as to which of the parties could have been instrumental in the disappearance of the part of the records of the D.D.A. This could have been the handiwork of either of the parties, depending on if the Will was genuine or not, Even if the Will was genuine, it may be that the heirs of the testator in fact never appeared to support the case for mutation for obvious reasons.

(10) Lastly, there is the circumstance that the parties are now before a civil court which, in spite of the absence of the original document, and the depositions said to have been made before the Tehsildar, would still be a more affective forum for the determination of the question if Ladu Ram never made a will and died intestate and as to the right of the heirs of Ladu Ram to redemption, as also various other questions involved in the suit. While the proceedings pending in the criminal court would not naturally determine rights, the proceedings in the civil court would conclusively determine rights between the parties and put an end to, the controversy. Moreover, on the outcome of the proceedings in the civil court, the accused persons could still be prosecuted either at the instance of the Court, or otherwise, should the civil court return a finding that the will was a forged document and that it was used as genuine in the proceedings before the Tehsildar.

(11) Having regard to all the circumstances, this is a case of its own kind. There are circumstances, as well as inherent characteristics of the situation, which support the complaint and may constitute sufficient material for a charge being framed. But there are quite a few compelling circumstances and characteristics, which would unmistakably point to the contrary direction. A possible solution in the circumstances may be to keep the complaint pending but to direct that it be adjourned sine die. The other alternative is to quash the proceedings of the complaint subject, however, to the condition that the complainant may seek their revival should he be advised to do so on the outcome of the civil proceedings. On the conclusion of civil proceedings, it would also be open to the complainant to initiate fresh proceedings directly or through the civil court since the plea that there was a valid will is bound to be set up in the civil proceedings. Ordinarily, civil and criminal proceedings are independent of each other and even if the subject-matter overlaps, they may be continued simultaneously. It is also well-settled that ordinarily if one of the two proceedings must be stayed, it is the civil proceedings that are stayed. This is based on the distinction between the two proceedings. Criminal proceedings are based on public policy while the civil proceedings are intended to determine rights between the parties. Having regards, however, to the peculiar circumstances of this case and the competing inherent characteristics pointed out above, I think, I would be striking a reasonable balance between the conflicting claims to quash the proceedings on the condition that the complainant would be entitled to seek their revival on the conclusion of the civil proceedings, should he be advised to do so. He would also have the liberty to initiate fresh proceedings should the cause of action for it survive the decision of the civil court, both directly or through the intervention of the civil court. I direct accordingly.

(12) Before parting with this case, it is necessary to say a few words about the mysterious happenings in the Dda, which have come to light in the proceedings in the trial court. In the first instance, it does not appear that the Tehsildar issued formal notices to any of the heirs of Ladu Ram. Such a notice was perhaps necessary even if some persons were set up as the heirs of Ladu Ram or if the heirs of Ladu Ram voluntarily appeared because such a notice alone could have precluded the possibility of impersonation or collusion. What is worse, the original will and the deposition of these persons mysteriously disappeared from the records. This obviously involved one or the other of the parties, depending on the genuineness or otherwise of the will, and certain other circumstances, but the involvement of the D.D.A officials could not possibly be excluded. There is no indication from the records of the D.D.A., now in this court, if any action has been initiated by the D.D.A. in relation to the matter. It is quite possible that perhaps action may have remained stalled because the records have been in the trial court. Such proceedings may perhaps have been deferred until the outcome of the proceedings in courts, civil or criminal. But it must be pointed out that neither of the courts would be concerned with the question as to how the records disappeared. That is entirely a matter for the D.D.A. to determine and it is hoped that, unless it has already been done, the Authority would hold the necessary enquiry into the matter and ensure that the guilty are adequately brought to book. The records of the D.D.A., now in this court, be suitably sealed and sent to the Vice-Chairman of the D.D.A. A copy of the order be forwarded to Vice-chairman to enable him to consider what action be taken by the Authority in the matter, unless the necessary action has already been taken.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //