AVTAR SINGH BAINS Vs. GURDEV KAUR AND ORS.

JUDGEMENT

(1.) The revision petition is against the order passed by the trial court de -exhibiting a document already admitted into evidence. The exhibit was a copy of letter of administration by the Supreme Court of British Columbia, Canada allowing for the copy of the Will to be produced for the purpose of litigation in India. The Will was purported to have been executed by the father of the plaintiff, Shri Chahan Singh Bains. An objection taken by the defendants was that the Will could not have been admitted into evidence without putting it through a rigmarole of proof as rejected under Sec. 68 of the Evidence Act. The court accepted it and directed the document to be de -exhibited.

(2.) The revision is brought by the plaintiff contending that a probate issued is a judgment in rem under Sec. 41 of the Evidence Act and a copy of the Will produced under the order of the court through a letter of administration issued is bound to be acted upon by the court in India and there is no compulsion for proof of the Will again in terms of Sec. 68 of Evidence Act. The counsel would read me through the provisions of Sec. 41 of the Evidence Act to contend that the expression "court" used under the said provision would include a foreign court of competent jurisdiction as well. The counsel would refer me to the decision of the Supreme Court in Ashok Layland Limited Versus State of T.N. and another -, AIR 2004 (SC) 2836 that has held that in the rule of evidence the proof of certain facts cannot be brought to challenge that includes conclusiveness of the grant as contemplated under Sec. 41 of the Evidence Act. To the same effect is the judgment of the Supreme Court of India in Surinder Kumar and others Versus Gian Chand and others - : AIR 1957 (SC) 875 that a person in whose favour a probate is issued must be presumed to have obtained it in accordance with the procedure prescribed by law and that it is a judgment in rem. The Bombay High Court in Devika Damji Shah Versus Rashmi Mukesh Shah and another - : 2012(5) ALL MR 547 has considered the effect of a probate issued by a foreign court and the Bombay High Court was holding that such a g rant will be tested through the prism of Sec. 13 of the Civil Procedure Code.

(3.) There, therefore, is the point of contention taken by the respondent that Sec. 13 which declares a foreign judgment to be conclusive marks exceptions and to our case for application, the learned senior counsel Shri Chadha refers me to clauses (b) and (f) which read as under: -