Kuldip Singh vs Ranjit Kaur
2023 Latest Caselaw 20830 P&H

Punjab-Haryana High Court

Kuldip Singh vs Ranjit Kaur on 1 December, 2023

Author: Anil Kshetarpal

Bench: Anil Kshetarpal

                                                  Neutral Citation No:=2023:PHHC:153484




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       In the High Court of Punjab and Haryana, at Chandigarh


                         Regular Second Appeal No. 3069 of 2023 (O&M)

                                                Date of Decision: 01.12.2023


Kuldeep Singh
                                                                  ... Appellant(s)

                                       Versus

Smt. Ranjit Kaur and Others
                                                               ... Respondent(s)

CORAM: Hon'ble Mr. Justice Anil Kshetarpal.

Present:    Mr. Amit Jain, Senior Advocate
            with Mr. Varun Parkash, Advocate
            for the appellant(s).

            Mr. Puneet Bali, Senior Advocate
            with Mr. Bhagyashri Setia and Mr.Mayank Mathur, Advocates
            for the respondents.

Anil Kshetarpal, J.

1. The Regular Second Appeal in the States of Punjab, Haryana

and Union Territory, Chandigarh is governed by Section 41 of the Punjab

Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure,

1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi

(Dead) through LRs v. Chandrika and Others (2016) 6 SCC 157.

2. In this regular second appeal, the plaintiff assails the

correctness of the concurrent findings of facts arrived at by both the Courts

below while dismissing his suit for the grant of decree of declaration to the

effect that the Will dated 20.10.2007, allegedly executed by his father late

Sh.Gurdial Singh in favour of Ranjit Kaur, his mother, is illegal, void and

full of suspicious circumstances surrounding the Will and as such, it does

not effect his rights in the properties left behind by his his father late 1 of 8

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Sh.Gurdial Singh.

3. At this stage, it would be appropriate to draw a family tree to

understand the relationship between the parties:-

Gurdial Singh | Ranjit Kaur | Kuldeep Singh Bhupinder Singh Jagdish Kaur

4. Late Sh.Gurdial Singh was working as a Senior Assistant

Commissioner of Police in Singapore. Thereafter, he got settled in

Australia. He is alleged to have executed a registered Will on 27.10.2007

bequeathing his property in favour of his widow, namely Ranjit Kaur. The

aforesaid Will was probated by the Supreme Court of New South Wales,

Australia, on 02.12.2010, because late Sh.Gurdial Singh also left behind the

property in Australia.

5. The plaintiff, while filing the suit, claims that the aforesaid Will

is forged and fabricated and is surrounded by the suspicious circumstances.

The defendants have produced attested copy of the Will which has been

probated by the Supreme Court of New South Wales, Australia. On

appreciation of the evidence, both the Courts below dismissed the suit.

6. Heard the learned senior counsel representing the parties, at

length and with their able assistance, perused the paper-book along with the

photocopy of the record produced by the learned counsels.

7. The learned senior counsel representing the appellant contends

that the Will has not been proved to have been executed in accordance with

Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as "the

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1925 Act") and it has not been proved in the Court in accordance with

Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as "the

1872 Act"). He further contends that as per Section 13 of the Code of Civil

Procedure, 1908 (hereinafter referred to as "CPC"), the foreign judgment is

not binding and no order of grant of probate has been produced. He

submits that as per Section 86 of the 1872 Act, a certified copy is admissible

in evidence, but it has never been produced. Towards the end, he contended

that a copy of the Will has not been exhibited, therefore, it cannot be relied

upon.

8. Per contra, the learned senior counsel representing the

respondents submits that the judgment passed by the Court of competent

jurisdiction, while granting probate, operates as res judicata in view of the

judgment passed in Darshan Singh v. Kuldip Singh 1979 AIR (Punjab and

Haryana) 250. The plaintiff himself was in Australia and he admits that late

Sh. Gurdial Singh had executed a Will which was probated by the Court of

competent jurisdiction. Hence, he submits that the remedy for the plaintiff is

to file an application for revocation of probate in that Court.

9. This Court has considered the submissions of the learned senior

counsels representing the parties. Section 63 of the 1925 Act would not be

applicable because the registered Will was not executed in India. Admittedly,

the Will was executed in Sydney, Australia. At that time, the Testator was

not only residing in Sydney, but he was also the owner of certain properties

in Sydney.

10. As regards the arguments based on Section 68 of the 1872 Act,

it would be noticed that Section 41 of the 1872 Act provides that a final

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judgment, order or decree of a competent Court in exercise of probate

jurisdiction is relevant, which is extracted as under:-

"41. Relevancy of certain judgments in probate, etc.,

jurisdiction.--A final judgment, order or decree of a competent

Court, in the exercise of probate, matrimonial, admiralty or

insolvency 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.

Such judgment, order or decree is conclusive proof --

that any legal character which it confers accrued at the

time when such judgment, order or decree came into operation;

that any legal character, to which it declares any such

person to be entitled, accrued to that person at the time when

such judgment order or decree declares it to have accrued to

that person;

that any legal character which it takes away from any

such person ceased at the time from which such judgment,

order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be

so entitled was the property of that person at the time from

which such judgment, order or decree declares that it had been

or should be his property."

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11. It is evident that if an order of probate confers upon any legal

character or declares any person to be entitled to any such character is

relevant when the existence of any such legal character is relevant. It is also

provided that such judgment, order or decree is a conclusive proof.

12. The learned senior counsel representing the appellant has relied

upon the judgment in Y. Narasimha Rao and Others v. Y. Venkata Lakshmi

and Another (1991) 3 SCC 451. In that case, a divorce decree granted by

the foreign Court were produced. The Court found that the parties were

married in India and were governed by the provisions of Hindu Marriage

Act, 1955 (hereinafter referred to as "the 1955 Act") and the ground on

which the decree of divorce was passed by the Court located outside the

country was not covered by the 1955 Act. Moreover, the husband was not

domicile of foreign country, but was only technically staying in U.S. The

Court further found that the husband played a fraud while giving incorrect

jurisdictional facts. In those circumstances, the Court held that the foreign

Court decree is not binding. However, the facts of this case are entirely

different. The plaintiff has not led any evidence to prove that the aforesaid

Will was not probated in accordance with law prevalent in New South

Wales, Australia. As per Section 14 CPC, the Court is required to presume

that such judgment was pronounced by a competent Court of jurisdiction

unless contrary appears on the record. Section 14 CPC admits only one

exception which is to the effect that such presumption may be displaced by

proving want of jurisdiction. As already noticed, the plaintiff has not

produced any evidence.

13. The learned senior counsel representing the appellant also

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relies on Section 13 CPC. It would be noted here that Section 13 CPC

provides that a foreign judgment shall be conclusive as to any matter thereby

directly adjudicated. However, there are certain exceptions. In this case, the

plaintiff has failed to prove that the judgment passed by the Supreme Court

of the New South Wales, Australia, is liable to be ignored on the grounds

specified in the exceptions to Section 13 CPC. Heavy onus lays on the

plaintiff to prove those facts.

14. At this stage, it would be relevant to note that when the plaintiff

appeared in evidence, he made a significant statement which reads as under:-

"It is a fact that when the present suit was filed, the defendants

were living in the suit property. I had told them that I am filing

the said suit. I had met my mother last in Sep 2016. She was in

hospital at that time and was unwell. It is wrong to suggest that

she is not capable of travelling to India. I did not challenge the

probate in Australia as I was not aware that there was a will. In

2016 when I was in Australia I was aware of the fact that there

was a will. I stayed in Australia approximately 3 months in the

year 2016. I did not challenge the probate in Australia during

my stay in the year 2016 as it can not be challenged according

to the law. It is wrong to suggest that probate can be challenged

in Australia at any point of time by any of the legal heirs. I did

not lodge any claim to any of the properties of my father in

Australia as probate had already been issued. I do not accept

the probate allowed by the court in Australia."

15. On the careful reading of the aforesaid statement, it is evident

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that the plaintiff went to Australia and stayed there for three months. He

admits that he did not challenge the probate granted in Australia during his

stay. Rather he stated that it cannot be challenged according to law

applicable in that State.

16. The next submission of the learned senior counsel representing

the appellant is based on Section 86 of the 1872 Act, which provides for

presumption as to certified copies of foreign judicial records. One way is to

produce a document purporting to be a certified copy of the judicial record

by getting it certified by any representative of the Central Government and

the second is to produce certified copies of the judicial record from that

country. In this case, the copies of probate as well as the Will are embossed

with the seal of Supreme Court of New South Wales, Australia. Thereafter, it

is also certified by an official. No evidence has been led to prove that such

certification or the seal of Supreme Court of New South Wales, is fake.

Though the learned senior counsel representing the appellant made a feeble

attempt to allege that only a photocopy was produced, however, when the

aforesaid document was produced in evidence, the learned counsel

representing the plaintiff objected to its admissibility but not on the ground

that it is not a certified copy. The learned counsel only raised a vague

objection. Undoubtedly, the aforesaid probate and the Will have not been

marked as exhibit, however, proviso to Order XIII Rule 4 CPC do enable

the Court to exhibit the aforesaid document. The proviso is applicable in the

States of Punjab and Haryana and Union Territory of Chandigarh in view of

the amendment brought in on 11.06.1974.

17. It would further be noted here that in Darshan Singh's case

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(supra), the Court held that the probate judgment is a judgment in rem and

is binding on all persons whether they are parties to those proceedings or

not. Similarly, the Bombay High Court in Ramesh Nivrutti Bhagwat v. Dr.

Surendra Manohar Parekhe (2020) 17 SCC 284 held that such order of

probate is binding and is amenable to challenge only in that Court which

granted the probate.

18. Keeping in view the aforesaid facts and discussion, there is no

ground to interfere in the concurrent findings of facts arrived at by both the

Courts below. Hence, the present appeal is dismissed.

(Anil Kshetarpal) Judge December 01, 2023 "DK"

         Whether speaking/reasoned :Yes/No
         Whether reportable              : Yes/No




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