Civil Revision No. 5326 of 2008 -1- **** 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 ***** 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. Civil Revision No. 5326 of 2008 -2- **** 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 Civil Revision No. 5326 of 2008 -3- **** 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 Civil Revision No. 5326 of 2008 -4- **** 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