Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5823 OF 2011
Lachhmi Narain Singh (D) Through LRs & Ors. …Appellant(s)
Versus
Sarjug Singh (Dead) Through LRs. & Ors. …Respondent(s)
J U D G M E N T
Hrishikesh Roy, J.
1. This appeal arises out of the judgment and order dated 15.04.2009
of the Patna High Court whereby the appeal filed by the probate
applicant was allowed in his favour by concluding that the Will
favouring Sarjug Singh was not cancelled. Thus, the appellate
Court reversed the Trial Court’s decision which held that the
Signature Not Verified
applicant is disentitled to get the Will probated as the same was
Digitally signed by
Charanjeet kaur
Date: 2021.08.17
18:08:17 IST
Reason:
revoked. The High Court to give the impugned verdict against the
objectors, disbelieved the registered deed of cancellation dated
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02.02.1963 (Exbt C) whereby, the Exbt 2 Will, was revoked by the
testator.
RELEVANT FACTS
2.
Rajendra Singh (since deceased) had executed a Will on 14.09.1960
(Exbt 2) in favour of the applicant Sarjug Singh. The executant
died issueless on 21.08.1963 leaving behind his sister Duler Kuer,
wife of late Thakur Prasad Singh and nephew Yugal Kishore Singh
and also the probate applicant Sarjug Singh. The case of the
applicant is that the testator’s wife died long ago and therefore
Rajendra Singh who was issueless bequeathed his property in
village Pojhi Bujurg and Pojhi Kapoor, DistrictSaran, Bihar by
executing the Will (Ext.2) favouring the respondent Sarjug Singh
(since deceased).
3. In the probate proceeding initiated by Sarjug Singh i.e. Probate
Case No. 19/1967, objection was filed by Shyam Sunder Kuer alias
Raj Bansi Kuer (claiming to be the second wife and widow of the
testator). Khedaran Kuer also opposed the applicant and she
claimed to be the widow of Jamadar Singh who was the son of late
Jag Jitan Singh (brother of the testator Rajendra Singh). According
to the objectors, the Will favoring Sarjug Singh was revoked and
cancelled by a registered deed dated 02.02.1963 (Exbt. C). It was
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also the objector’s contention that Raj Bansi Kuer was in
possession of all assets belonging to late Rajendra Singh and she
along with Khedaran Kuer, sold several plots of land to the
appellants. Eight of the vendees who took possession after such
purchase, appeared in the probate proceedings and supported the
case of the objectors.
4.
It is relevant to state that the validity of the Will in favour of the
applicant Sarjug Singh was never seriously challenged but the
objectors pleaded that the concerned Will was cancelled by a
registered deed on 02.02.1963 (Exbt. C) by the testator himself. The
applicant however claims that the testator was in very poor health,
paralytic and was not in a position to attend the SubRegistrar’s
office on 02.02.1963 to execute the registered cancellation deed
(Ext. ‘C’). The applicant also challenged the genuineness of the
testator’s thumb impression on the cancellation deed of the Will.
5.
In the Probate case filed by Sarjug Singh, the learned First
Additional District Judge, Chapra firstly concluded that the Will
(Ext. 2) is a genuine document. However, by referring to the
evidence laid by the objectors, the learned Judge then held that the
Will (Ext. 2) was cancelled on 02.02.1963 under a registered deed
(Ext. C), a few months before Rajendra Singh died on 21.08.1963,
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at Patna hospital. The Court also referred the death certificate
(Ext. F) to conclude that the same does not indicate that the
testator was suffering from paralysis. This observation was made
by the trial Court to reject the contention of the applicant to the
effect that Rajendra Singh was paralytic and was incapable of
cancelling the Will a few months before he died. The learned Judge
then considered the sale deeds produced by the objector Shyam
Sunder Kuer and observed that she was dealing with Rajendra
Singh’s property as his legal heir and this according to the Court
was also indicative of the fact that the Will for which probate was
sought, was revoked by the testator himself.
6. The learned trial Court while examining the genuineness of the
cancellation deed dated 02.02.1963 (Ext. ‘C’) referred to the
evidence of the handwriting expert, Hassan Raza (OW3), the
attesting witness of cancellation deed, Jagarnath Prasad (OW4)
and the scribe of the cancellation deed Shashinath Mishra (OW5).
The OW3 as an expert, compared the admitted thumb mark of
Rajendra Singh on the deed of gift dated 23.7.1947 in favour of
Jugal Kishore Singh (Ext. 1) and on the Will dated 14.09.1960 in
favour of Sarjug Singh (Ext. 2) with the thumb impression
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registered at Chapra Registration Office and recorded the
following :
“8. …..xxx…The expert who examined these thumb
marks is of the opinion that all these thumb
impressions tally. O.W.3 S.E.T. Hassan Raza is the
Expert and Ext. B is his report. There is nothing in
his crossexamination to discard his evidence and
report …..xxx….”
After referring to the testimony of the attesting witness and the
scribe of the cancellation deed, the trial Court concluded as below:
“10. …..xxx…There is no evidence on the side of the
applicant nor there is any suggestion to the attesting
witness O.W. 4 and Shashinath Mishra the scribe
O.W. 5 to the effect that some body also had
impersonated Rajendra Singh before the Sub
Registrar….xxx….”
7. On the above analysis, the learned trial Court, under its judgment
dated 14.12.1973 concluded that the Will has been revoked and
the applicant Sarjug Singh is disentitled to get the Will probated.
8. Aggrieved by the rejection of the Probate case by the Trial Court,
the applicant Sarjug Singh filed the First Appeal No. 127 of 1974
before the High Court. During the pendency of the appeal, on
21.03.2002, Sarjug Singh died but no application was filed for
substitution of the deceased appellant.
9. The High Court addressed the core issue on whether the testator
had cancelled the Will. Then the Court noted the precarious health
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condition of the testator and the failure of the objectors to produce
the original of the cancellation deed and nonpresentation of the
material witness. On such consideration, the appellate Court held
that the deed cancelling the Will should not be taken into evidence.
The learned Judge also noted that the validity of the Will was never
seriously questioned and the objectors had stated that the Will was
cancelled by the testator himself. The High Court accordingly
granted the probate and reversed the finding of the trial Court. The
subsequent purchasers of the assets who supported the objector’s
case in the probate proceedings, have then filed the present appeal.
10. In course of the proceedings before this Court, suggestion was
earlier made to the parties for amicable settlement of the rival
claims and accordingly time was granted to the counsel to obtain
instructions. But when the case was taken up for final hearing, the
Court is informed by the respondents’ counsel that they failed to
reach any acceptable settlement and the appeal should therefore be
heard.
11. Insofar as the nonsubstitution of the deceased Sarjug Singh before
the High Court and nonsubstitution of legal heirs of other
contesting parties, the same need not detain us at this point, in
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view of the proceeding on 13.04.2021 in this Court where, the
parties have agreed that although the appeal before the High Court
was decided against a dead person and the legal heirs of the
present appellants were belatedly brought on record, since all legal
heirs of the contesting parties are represented, the case should be
decided on its legal merit. In view of such consensus, taking note
of the amended memo of parties which were filed, we have
proceeded to adjudicate the appeal.
DISCUSSION AND DECISION
12. We have heard Ms. Sreoshi Chatterjee, the learned counsel
appearing for the appellants/objectors. The legal heirs of Sarjug
Singh (probate applicant) are represented by the learned counsel
Mr. Abhay Kumar.
13. The merit of the claim of either party in the present matter will
hinge around the core issue as to whether Rajendra Singh had
actually revoked the Will in favour of Sarjug Singh and his physical
and mental capacity to execute the Cancellation Deed (Ext. C) and
also whether thumb impression of Rajendra Singh on the registered
document dated 02.02.1963 is genuine or not.
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14. In allowing the appeal of the probate applicant, the High Court
referred to the health condition of Rajendra Singh who suffered
from paralysis before his death and had opined that it would not be
possible for the testator to visit the SubRegistrar’s Office, to cancel
the Will. Inference was accordingly drawn on his impersonation, at
the SubRegistrar’s Office. Such conclusion was reached even
though, neither any suggestion nor any crossexamination was put
to the objector’s witnesses, regarding impersonation of the testator
Rajendra Singh at the SubRegistrar’s Office. It is also important to
record that Ext. B (Report of Handwriting Expert) and Ext. C (Deed
of Cancellation) were both marked without objection, when the
documents were tendered in the trial Court.
15. The High Court in our assessment, failed to give due weightage to
the evidence of OW3, OW4 and OW5 who led evidence on
genuineness of the cancellation deed. Instead, erroneous
presumption was drawn on impersonation and incapability of the
testator, to visit the office of the SubRegistrar to register the
Cancellation Deed.
16. That apart, the probate applicant never opposed the acceptance
and marking of the concerned cancellation deed, in the trial Court.
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Therefore, in the face of the Expert’s Report (Ext. B), when the Deed
of Cancellation (Ext. C) were marked without any objection before
the trial Court, those cannot be treated as inadmissible and should
have been accepted as genuine, particularly in view of the
testimony of OW3, OW4 and OW5, who stood firm on execution
of the registered revocation deed by the testator, Rajendra Singh.
17. On the issue of testator’s thumb impression on the cancellation
deed, it is telling that all the four deeds executed by Rajendra Singh
in his lifetime, contained his thumb impression and not his
signature. Therefore, adverse presumption on genuineness of the
cancellation deed cannot be drawn merely because the testator
chose to append his thumb impression. That apart, the Ext. B
Report of the handwriting expert (OW3) clearly indicates that the
thumb impression on all the documents placed before the Expert’s
opinion are of the same person i.e. of Rajendra Singh. Since the
said Ext. B was marked in Court, without objection from the
applicant, the genuineness of the same cannot be allowed to be
questioned before the appellate Court. A contrary inference
according to our opinion, was erroneously drawn by the High court
by referring to the health condition of the testator, when the
revocation deed was registered.
Page 9 of 16
18. The key characteristic of thumb impression is that every person
has a unique thumb impression. Forgery of thumb impressions is
nearly impossible. Therefore, adverse conclusion should not be
drawn for affixing thumb impression instead of signing documents
of property transaction. Therefore, genuineness of the Cancellation
deed cannot be doubted only due to the fact that same was not
signed and Rajendra as a literate person, affixed his thumb
impression. This is more so in this case since the testator’s thumb
impression was proved to be genuine by the expert.
19. Next, we need to consider the implication of the conduct of the
objectors, who did not produce the original deed of cancellation.
They also failed to take any steps to produce the original (reported
to be in possession of Yugal Kishore Singh). On this, the probate
applicant neither objected to production of certified copy nor
insisted on production of the original Cancellation Deed. Mr. Abhay
Kumar, learned counsel however contended that even the Trial
Court had not pressed for production of the original Cancellation
Deed. As can be seen, the probate objectors never objected to
presentation of the certified copy of Cancellation Deed. Before the
trial Court, probate applicant primarily argued that Rajendra was
keeping ill health and it was not possible for him to have gone
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alone to the Sub Registrar’s office for getting the Cancellation Deed
registered. When this was the contention of the applicant and the
concerned deed was introduced and marked without protest, the
High court in the face of overwhelming evidence in support of the
genuineness of the cancellation deed, should not have drawn an
adverse inference against the objectors by referring to the health
condition of the testator.
20. In such scenario, where no protest was registered by the probate
applicant against production of certified copy of the Cancellation
Deed, he cannot later be allowed to take up the plea of non
production of original cancellation deed in course of the appellate
proceeding. As already noted, the main contention of probate
applicants was that the mode of proof of Cancellation deed was
inadequate. However, such was not the stand of the probate
applicants before the Trial Court. The objection as to the
admissibility of a registered document must be raised at the
earliest stage before the trial court and the objection could not have
been taken in appeal, for the first time. On this we may draw
support from observations made by Justice Ameer Ali in Padman v.
1
Hanwanta where the following was set out by the Privy Council
1 AIR 1915 PC 111
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“The defendants have now appealed to His Majesty
inCouncil, and the case has been argued on their
behalf in great detail. It was urged in the course of the
argument that a registered copy of the Will of 1898
was admitted in evidence without sufficient
foundation being laid for its admission. No objection,
however, appears to have been taken in the first court
against the copy obtained from the Registrar's office
being put in evidence. Had such objection been made
at the time, the District Judge, who tried the case in
the first instance, would probably have seen that the
deficiency was supplied. Their Lordships think that
there is no substance in the present contention.”
(emphasis in original)
21. A similar view was taken by George Rankin, J. in the decision of
2
Privy Council in Gopal Das v. Sri Thakurji where it was held that
Objection as to the mode of proof must be taken when the
document is tendered and before it is marked as an exhibit. It
cannot be taken in appeal. Objection as to mode of proof should be
taken before a document is admitted and marked as exhibit. In
present case probate applicant never raised any objection in
regards to mode of proof of cancellation deed before the Trial Court,
as is evident from perusal of records and this must be held against
him.
22. In support of our above conclusion, we may usefully refer to the
ratio in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami
2 AIR 1943 PC 83
Page 12 of 16
3
& V.P Temple where Justice Ashok Bhan while dealing with the
aspect of disallowing objection as to mode of proof at appellant
stage as a rule of fair play to avoid prejudice to the other side, said
as follows:
“ …….…. In the latter case, the objection should be
20.
taken when the evidence is tendered and once the
document has been admitted in evidence and marked as
an exhibit, the objection that it should not have been
admitted in evidence or that the mode adopted for proving
the document is irregular cannot be allowed to be raised at
any stage subsequent to the marking of the document as
an exhibit. The latter proposition is a rule of fair play. The
crucial test is whether an objection, if taken at the
appropriate point of time, would have enabled the party
tendering the evidence to cure the defect and resort to such
mode of proof as would be regular. The omission to object
becomes fatal because by his failure the party entitled to
object allows the party tendering the evidence to act on an
assumption that the opposite party is not serious about the
mode of proof. On the other hand, a prompt objection does
not prejudice the party tendering the evidence, for two
reasons: firstly, it enables the court to apply its mind and
pronounce its decision on the question of admissibility then
and there; and secondly, in the event of finding of the court
on the mode of proof sought to be adopted going against
the party tendering the evidence, the opportunity of seeking
indulgence of the court for permitting a regular mode or
method of proof and thereby removing the objection raised
by the opposite party, is available to the party leading the
evidence. Such practice and procedure is fair to both the
parties. Out of the two types of objections, referred to
hereinabove, in the latter case, failure to raise a prompt
and timely objection amounts to waiver of the necessity for
insisting on formal proof of a document, the document itself
3 (2003) 8 SCC 752
Page 13 of 16
which is sought to be proved being admissible in
evidence………” (emphasis in original)
23. This Court in the opinion written by Justice S. H. Kapadia in
4
Dayamathi Bai v. KM Shaffi has similarly held that objection as to
the mode of proof falls within procedural law. Therefore, such
objections could be waived. Moreover, objection is to be taken
before the document is marked as an exhibit and admitted in
Court.
24. In view of the foregoing discussion, it is clear that plea regarding
mode of proof cannot be permitted to be taken at the appellate
stage for the first time, if not raised before the trial Court at the
appropriate stage. This is to avoid prejudice to the party who
produced the certified copy of an original document without protest
by the other side. If such objection was raised before trial court,
then the concerned party could have cured the mode of proof by
summoning the original copy of document. But such opportunity
may not be available or possible at a later stage. Therefore, allowing
such objection to be raised during the appellate stage would put
the party (who placed certified copy on record instead of original
copy) in a jeopardy & would seriously prejudice interests of that
4 (2004) 7 SCC 107
Page 14 of 16
party. It will also be inconsistent with the rule of fair play as
propounded by Justice Ashok Bhan in the case of R.V.E.
Venkatachala (Supra).
25. In consequence of above, we are of the considered opinion that the
High Court had erred by ignoring the material evidence in
disbelieving the Cancellation Deed and on that score declaring that
the applicant is entitled to grant of probate of the Will (Ext. 2).
Given the fact that Probate applicant never raised any objection
regarding the mode of proof before the trial court, there was no
occasion for the High Court to say that it was the duty of defendant
to produce original deed of cancellation. The reliance therefore on
the opinion of Lord Thankerton in Babu Anand Behari v. Dinshow
5
& Co . is found to be unjustified. This is because in that case, the
authenticity of some extract of power of attorney, was questioned
but in the present case the certified copy of the registered
cancellation deed is produced and most importantly, the same was
not objected. Moreover, the plea of mode of proof was never raised
before the trial Court and therefore High Court’s reliance on
aforementioned case to support the applicant is unacceptable.
5 AIR 1946 PC 24
Page 15 of 16
26. On the basis of the above examination, it is our considered opinion
that the Trial Court was right in holding that Rajendra was
medically fit and had cancelled the Will himself. It is also seen that
the evidences of the relevant OWs have withstood the scrutiny of
the Trial Court and those have remained unshaken and should be
trusted. Considering the omission of the probate applicants to
raise objection regarding mode of proof before the trial court, we
find merit in the case of the objectors.
27. For the above reasoning, we allow the present appeal set aside the
impugned order of High Court and restore the judgment of the First
Additional District Judge Chapra, with no order as to costs.
..……………………………….J.
[SANJAY KISHAN KAUL]
…………………………………
J.
[HRISHIKESH ROY]
NEW DELHI
AUGUST 17, 2021
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