Lachhmi Narain Singh (D) Through Lrs & Ors. vs Sarjug Singh (Dead) Through Lrs. & Ors.

Hrishikesh Roy, J

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decision which held that the applicant is disentitled to get the Will probated as the same was revoked. The High Court to give the impugned verdict

against the objectors, disbelieved the registered deed of cancellation dated 02.02.1963 (Exbt C) whereby, the Exbt 2 Will, was revoked by the testator.

RELEVANT FACTS

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, DistrictÂSaran, Bihar by executing the Will (Ext.2) favouring the respondent Sarjug Singh (since

deceased).

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 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.

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 SubÂRegistrar’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.

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, 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.

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 (OWÂ3), the attesting witness of cancellation deed, Jagarnath Prasad (OWÂ4) and the scribe of the cancellation

deed Shashinath Mishra (OWÂ5). The OWÂ3 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

registered at Chapra Registration Office and recorded the following :Â​

“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 crossÂ​examination to discard his evidence and report …..xxx….â€​

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 SubÂ​ Registrar….xxx….â€​

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.

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.

The High Court addressed the core issue on whether the testator had cancelled the Will. Then the Court noted the precarious health condition of

the testator and the failure of the objectors to produce the original of the cancellation deed and nonÂpresentation 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.

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.

Insofar as the nonÂsubstitution of the deceased Sarjug Singh before the High Court and nonÂsubstitution of legal heirs of other contesting parties,

the same need not detain us at this point, in 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

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.

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.

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 SubÂRegistrar’s Office, to cancel the Will. Inference was

accordingly drawn on his impersonation, at the SubÂ​Registrar’s Office. Such conclusion was reached even though, neither any suggestion nor any

crossÂexamination was put to the objector’s witnesses, regarding impersonation of the testator Rajendra Singh at the SubÂRegistrar’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.

The High Court in our assessment, failed to give due weightage to the evidence of OWÂ3, OWÂ4 and OWÂ5 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 SubÂ‐

Registrar to register the Cancellation Deed.

That apart, the probate applicant never opposed the acceptance and marking of the concerned cancellation deed, in the trial Court. 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 OWÂ3, OWÂ4 and OWÂ5, who

stood firm on execution of the registered revocation deed by the testator, Rajendra Singh.

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 (OWÂ3) 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.

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.

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 Â‐

health and it was not possible for him to have gone 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.

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. Hanwanta AIR 1915 PC 111 where the following was set out by the Privy Council “The defendants have now appealed

to His Majesty inÂCouncil, 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.â€​ (emphasis in original)

A similar view was taken by George Rankin, J. in the decision of Privy Council in Gopal Das v. Sri Thakurji AIR 1943 PC 83 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.

In support of our above conclusion, we may usefully refer to the ratio in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P

Temple (2003) 8 SCC 752 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:Â​

“20. …….…. In the latter case, the objection should be 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 which is sought to be proved being admissible in

evidence………â€​ (emphasis in original)

This Court in the opinion written by Justice S. H. Kapadia in Dayamathi Bai v. KM Shaffi (2004) 7 SCC 107 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.

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 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).

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 & Co. AIR 1946 PC 24 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.

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.

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.