Supreme Court: Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., expressed that,
Key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible.
Merely because the testator chose to append his thumb impression, adverse presumption on genuineness of the cancellation deed cannot be drawn.
Instant appeal arose out of the decision 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. Hence the appellate Court reversed the trial court’s decision which held that the applicant was disentitled to get the Will probated as the same was revoked.
High Court disbelieved the registered deed of cancellation dated 2-2-196 (Exbt C) whereby, the Exbt 2 Will, was revoked by the testator.
Factual Matrix
Rajendra Singh (since deceased) executed a Will on 14-09-1960 in favour of the applicant Sarjung Singh.
The executant died issueless leaving behind his sister Duler Kuer, wife of Thakur Prasad Singh and nephew Yugal Kishore Singh and also the probate applicant Sarjug Singh.
Applicant’s case was 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, District Saran, Bihar by executing the Will favouring respondent Sarjug Singh (since deceased).
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.
High Court addressed the core issue of whether the testator had cancelled the Will. High Court granted the probate and reversed the finding of the Trial Court. Subsequent purchasers of the assets who supported the objector’s case in the probate proceedings, have then filed the present appeal.
Analysis, Law and Discussion
Bench stated that the merit of 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 Sarjung Singh and his physical and mental capacity to execute the Cancellation Deed and also whether thumb impression of Rajendra Singh on the registered document is genuine or not.
Further, it was noted that 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 sub-registrar’s office, to cancel the Will.
Bench stated that the High Court failed to give due weightage to the evidence that led to the 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.
Testator’s thumb impression on the cancellation deed
On the stated issue, 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.
Further, the handwriting report clearly indicated that the thumb impression on all the documents placed before the expert’s opinion were 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.
In Court’s opinion, a contrary inference was erroneously drawn by the High Court by referring to the health condition of the testator, when the revocation deed was registered.
Supreme Court held that 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.
Implication of the conduct of the objectors, who did not produce the original deed of cancellation
Bench analysed and stated that objectors failed to take any steps to produce the original deed of cancellation. On the said, probate applicant neither objected to production of certified copy nor insisted on production of the original cancellation deed.
In view of the above 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.
Mode of Proof
Supreme Court made it 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.
Reasoning for the above was to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side.
Hence, allowing objection as stated above to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy and would seriously prejudice the interests of that party.
Adding to the above, it was emphasized that it would also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E Venkatachala
While reaching the conclusion, Court opined that the High Court had erred by ignoring the material evidence in disbelieving the cancellation deed and on that score declaring that the applicant was entitled to grant of probate of the Will.
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.
Lastly, the Bench expressed that Trial Court was right in holding that Rajendra was medically fit and had cancelled the Will himself. It was also seen that the evidences of the relevant OWs withstood the scrutiny of the trial court and those remained unshaken and should be trusted.
Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, merit was found in the case of the objectors.
In view of the above discussion, present appeal was allowed., while setting aside the impugned order of the Delhi High Court. [Lacchmi Narain Singh (D) v. Sarjug Singh (Dead), 2021 SCC OnLine SC 606, decided on 17-08-2021]
