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Judgment
Mr. S.R. Sen, J. - The brief fact of the case in a nutshell is that:
"The petitioner is the widow of (L) Vasdev Hoondamal Mirpuri who died on 03-03-2006 and the Respondent is the son of the Petitioner''s deceased husband from his first wife. In the year 2008, the Respondent filed a Complaint annexing a copy of a Marriage Certificate and an Affidavit before the Chief Judicial Magistrate, Shillong under sections 193/199/200/205/207/209/419/420/ 468/469/500 IPC, whereas none of the ingredients of these sections of law are present in the case, alleging that the Petitioner is impersonating herself as the widow of the deceased (L) Vasdev Hoondamal Mirpuri and for that purpose has forged Marriage Certificate and sworn false Affidavit. The learned trial court examined the Respondent and other two witnesses and on being summoned the Petitioner appeared before the learned trial court. The learned trial court proceeded with the case without framing the charges against the Petitioner and once again examined the Respondent and the aforesaid two witnesses who were cross examined by the Petitioner and thereafter the matter was fixed for hearing. Finally the matter was heard and vide order dated 16.05.2014 the learned Judicial Magistrate, Shillong was pleased to drop section 193/199/200/205/207/209 IPC decided to frame charge against the Petitioner 419/420/468/469/500 IPC despite the bar under section 195 (1) Cr.p.c and irrelevant materials, hence this Petition"
Heard Mr. A.S. Siddiqui, learned counsel for the petitioner who submits that, when the matter is pending before the Probate Court pertaining to grant of Probate against the Will left by the petitioner''s husband, the Criminal Court has no jurisdiction to decide even if there is forgery or otherwise, it is the Probate Court alone to decide whether the Will is genuine or not and he also further contended that, whether the wife is genuine or the marriage certificate is genuine; that to be decided by the competent Civil Court not by the Criminal Court.
On the other hand, Mr. K. Paul, learned counsel appearing on behalf of the respondent submits that, he has filed a petition before the learned CJM, Shillong pertaining to challenging the genuinely of marriage certificate issued by the authority of Mahadev Khola Dham, Shillong and hence, his petition before the learned CJM, Shillong is no way connected with the Probate case bearing FTC Test (Probate) Case No. 10 (H) of 2012.
After hearing the submissions advanced by the learned counsel for the parties and on perusal of the Lower Court case record placed before me specifically after perusal of Para 8, 9 and 10 of the Complaint petition filed before the learned CJM, Shillong registered as C.R. Case No. 527 (S) of 2008, I find that the contents of the Complaint needs to be addressed by a Civil Court and not by a Criminal Court. For ready reference Para 8, 9 and 10 of the said Complaint petition is reproduced herein below:
"8. That as per the provisions of law in the Warrant triable cases the Court must frame charges against the accused if it intends to proceed with the case but the Court below failed to appreciate this requirements of law.
That the learned trial Court in a most arbitrary manner once again examined the Respondent 15.03.2011 as well as the aforesaid witnesses who were cross-examined by the Petitioner and fixed the matter for hearing. However, the case was later endorsed to Smti R. Rymbai, Judicial Magistrate First Class, Shillong for its disposal.
That the Petitioner was confident that as none of the ingredients of the sections mentioned in the Complaint i.e. sections 193/199/200/205/207/209/419/420/468/469/500 IPC were present in the Complaint, the trial Court would drop the case and accordingly she had made the submission before the trial Court to that effect".
After giving my conscious thought on the contents of the Complaint petition, I am of the view that, it is a counter petition against the probate petition pending before the learned Court of the District Judge, Shillong.
It is a settled principle of law that, (i) "WILL" is a succession in property where the principle by devolution of property by inheritance becomes automatically active by operation of law only on the death of the testator. This operation of law is further guided by the personal law of the testator or by the Indian Succession Act, 1925; (ii) the definition of "WILL" can be found only in the Indian Succession Act, 1925 in Sections 2 (h) "WILL" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death".
On perusal of the definition of the "WILL", it is clear that, it has a wide meaning. It will be wrong to say that a testator is confined to make a WILL in favour of the kith and kin only. A testator is free to make a WILL of his property in favour of anyone whom he likes. WILL is a last desire or testament of a dead person and it needs to be respected. It is not necessary that a testator is duty bound to bequeathed his property by way of a WILL to his kith and kin only, he is free to give his property to anyone in the world to whom he may be related or not. The only question remains is that, while granting Probate, the Probate Court is to see whether WILL has been made by the testator out of his free will and without any coercion or force? It is not correct that a person can bequeathed his property only to his legally married wife or son or daughter. The last question is whether the marriage between the petitioner and the father of the respondent took place in accordance with law or marriage certificate is genuine? That needs to be addressed by a Civil Court. The Probate Court has nothing to do with it.
Therefore, I do not find any reason for the respondent to file a Criminal Complaint case bearing C.R. Case No. 527 (S) of 2008.
For the foregoing reasons discussed above, the proceeding under the Criminal Complaint case bearing C.R. Case No. 527 (S) of 2008 is hereby set aside.
The Registry is directed to return the Lower Court case record to the concerned court along with a copy of this judgment and order.
Accordingly, this Criminal Revision Petition is allowed to that extent and stands disposed of.
No order as to costs.