2021 (8) TMI 1398 - SC - Indian Laws

Non-cancellation of will - rejection of the Probate case by the Trial Court - 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? HELD THAT - The High Court in our assessment, failed to give due weightage to the evidence of OW-3, OW-4 and OW-5 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 Sub-Registrar to register the Cancellation Deed - 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 OW-3, OW-4 and OW-5, who stood firm on execution of the registered revocation deed by the testator, Rajendra Singh. 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. The 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 - 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 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. The impugned order of High Court set aside - appeal allowed.

Summary

Issues Involved:
1. Validity of the Will executed by Rajendra Singh in favor of Sarjug Singh.
2. Alleged cancellation of the Will by a registered deed dated 02.02.1963.
3. Physical and mental capacity of Rajendra Singh to execute the cancellation deed.
4. Genuineness of the thumb impression on the cancellation deed.
5. Admissibility and mode of proof of the cancellation deed in court.

Detailed Analysis:

1. Validity of the Will Executed by Rajendra Singh:
The appeal arises from a judgment by the Patna High Court, which concluded that the Will favoring Sarjug Singh was not canceled, thus reversing the Trial Court's decision. The High Court's decision was based on the disbelief of a registered deed of cancellation dated 02.02.1963. The original Will (Exbt 2) was executed by Rajendra Singh on 14.09.1960 in favor of Sarjug Singh. The probate applicant argued that the Will was genuine and that Rajendra Singh bequeathed his property to Sarjug Singh due to being issueless.

2. Alleged Cancellation of the Will:
The objectors contended that the Will was revoked by a registered deed dated 02.02.1963 (Exbt C). The Trial Court initially found the Will to be genuine but concluded that it was canceled based on evidence, including the death certificate and the sale deeds produced by the objectors. The High Court, however, found that the cancellation deed should not be taken into evidence due to the testator's poor health and the failure to produce the original deed.

3. Physical and Mental Capacity of Rajendra Singh:
The applicant claimed that Rajendra Singh was in poor health and paralytic, making it impossible for him to execute the cancellation deed. The Trial Court referred to the death certificate, which did not indicate paralysis, and the evidence of the handwriting expert and attesting witnesses to conclude that Rajendra Singh was capable of executing the cancellation deed. The High Court, however, inferred impersonation due to the testator's health condition, despite no suggestion or cross-examination on this point.

4. Genuineness of the Thumb Impression:
The genuineness of the thumb impression on the cancellation deed was a key issue. The handwriting expert (OW-3) confirmed that the thumb impressions on various documents, including the cancellation deed, matched. The Trial Court accepted this evidence, but the High Court doubted the genuineness based on the health condition of the testator. The Supreme Court emphasized that thumb impressions are unique and difficult to forge, supporting the genuineness of the cancellation deed.

5. Admissibility and Mode of Proof of the Cancellation Deed:
The High Court's decision was also based on the non-production of the original cancellation deed. The Supreme Court noted that the probate applicant did not object to the production of the certified copy during the trial, thus waiving the right to object later. The Supreme Court cited precedents emphasizing that objections to the mode of proof must be raised at the trial stage, not on appeal. The failure to raise such objections at the trial stage means they cannot be entertained later.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the judgment of the First Additional District Judge, Chapra. The Court concluded that the Trial Court rightly held that Rajendra Singh was medically fit and had canceled the Will himself. The evidence of the relevant witnesses was found to be credible and unshaken. The Supreme Court emphasized the importance of raising objections regarding the mode of proof at the trial stage to avoid prejudice and ensure fair play.