Civil Revision No. 5326 of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 5326 of 2008
Date of decision: 11.05.2009.
Rajeshwari
Petitioner
Versus
Kuldeep Kaur and others ...Respondents
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. Rahul Sharma,Advocate for the petitioner
Mr. Amit Sharma, Advocate for the respondents
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S.D.ANAND, J.
The defendant-petitioner is in revision against the
impugned order dated 23.8.2008 vide which a plea filed by her for
treating the (territorial) jurisdiction issue as being preliminary in
character was declined.
The pleadings of the parties, as apparent from the record,
are as under:-
The respondent Kuldip Kaur filed a plea under Section
278 of the Indian Succession Act for the grant of probate in respect
of a testamentary disposition dated 14.11.2004 purporting to have
been executed by late Sh. Pawandeep Sandhu son of
Sh.S.S.Sandhu.
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Apart from contesting the grant of probate on merit, the
defendant-petitioner also raised a preliminary plea that the Courts at
Ludhiana have no territorial jurisdiction to try the controversy
inasmuch as neither the testator nor the contesting parties were
residents of Ludhiana and the former (testator) did not own any
immovable property at Ludhiana either.
Learned Trial Court declined the plea by observing that
“Pawandeep Sandhu deceased had immovable property at Ludhiana
at the time of his death and thus, the Civil Court at Ludhiana has
jurisdiction according to Section 270 and 276 of the Indian
Succession Act.”
In obtaining that view, the learned Trial Court also drew
sustenance from the fact that “the issue of territorial jurisdiction is
mixed question of law and fact and cannot be treated as preliminary
issue unless the evidence is led by the parties.”
Mr. Rahul Sharma, learned counsel appearing on behalf
of the defendant-petitioner, argued that the impugned order contains
factually wrong averment to the effect that the testator held
immovable property at Ludhiana at the time of his death. The
argument raised thereby was that the property which he otherwise
held at Ludhiana had been acquired before his death and is is only
the proceedings for disbursement of the compensation amount which
were pending in the Courts at Ludhiana. The further argument raised
thereby was that the pendency of proceedings would not be
supportive of the averment that the deceased testator held any
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property at Ludhiana at the relevant point of time.
In an act of resistance to the above plea, the learned
counsel for the respondent Kuldeep Kaur pointed out that the
deceased being an unmarried man was moving here and there and
was also residing at Ludhiana at certain point of time. The plea
raised thereby was that even if he was putting up at Ludhiana for a
short duration from time to time, it would invert the Courts at
Ludhiana to try the matter. It was also argued that the falsity or
otherwise of the averment (that deceased testator was residing at
different places including Ludhiana at different parts of time) is a
matter which shall have to be adjudicated upon only after the parties
have been afforded an opportunity to adduce evidence at the trial. It
was also pointed out that a part of the evidence has already been
recorded.
In the circumstances of the case, there is no escape from
the conclusion that it only on appreciation of substantive evidence,
adduced by the parties in support of the above quoted averments,
that the learned Trial Court would be in a position to take a decision
either way. It is not a case where it is conceded position that
deceased testator never ever resided at Ludhiana. Even otherwise,
it is apparent from the pleadings of the parties that he did hold
immovable property within the jurisdiction of the Courts at Ludhiana
and the controversy pending is in respect of that very land or the
compensation payable in respect thereof.
In the circumstances of the case, the learned Trial Court
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had taken a possible view. There is no judicial pronouncement
requiring a compulsive finding that a controversy about jurisdiction
must be taken up in the first instance. There are cases (as in the
present case) where the point under adjudication is mixed question
of law and fact. In such an eventuality in any case, the Trial Court
need not necessary take up the matter as preliminary issue in the
first instance.
The petition is held to be denuded of merit and is ordered
to be dismissed.
May 11, 2009 (S.D.Anand) Pka Judge