SUPREME COURT OF INDIA
Sanjay Kishan Kaul, Hrishikesh Roy, JJ.
Lachhmi Narain Singh (D) Through LRs & Ors. – Appellant(s)
Versus
Sarjug Singh (Dead) Through LRs. & Ors. – Respondent(s)
Civil Appeal No. 5823 of 2011
Decided on : 17-08-2021

IMPORTANT POINTS
(1) Adverse presumption on genuineness of cancellation deed cannot be drawn merely because testator chose to append his thumb impression. Forgery of thumb impressions is nearly impossible.
(2) Objection as to admissibility of a registered document must be raised at earliest stage before trial court and objection could not have been taken in appeal, for first time. Objection as to mode of proof should be taken before a document is admitted and marked as exhibit.

Headnote:

(A) Indian Succession Act, 1925 – Section 276 – Probate of Will – Objectors pleaded that concerned Will was cancelled by a registered deed by testator himself – High Court failed to give due weightage to evidence of OWs who led evidence on genuineness of cancellation deed – Instead, erroneous presumption was drawn on impersonation and incapability of testator, to visit office of Sub-Registrar to register Cancellation Deed – That apart, probate applicant never opposed acceptance and marking of concerned cancellation deed, in trial Court – In face of Expert’s Report, when Deed of Cancellation were marked without any objection before trial Court, those cannot be treated as inadmissible and should have been accepted as genuine, particularly in view of testimony of OWs who stood firm on execution of registered revocation deed by testator – Adverse presumption on genuineness of cancellation deed cannot be drawn merely because testator chose to append his thumb impression – Key characteristic of thumb impression is that every person has a unique thumb impression – Forgery of thumb impressions is nearly impossible – Adverse conclusion should not be drawn for affixing thumb impression instead of signing documents of property transaction – Genuineness of Cancellation deed cannot be doubted only due to fact that same was not signed and testator as a literate person, affixed his thumb impression – This is more so in this case since testator’s thumb impression was proved to be genuine by expert. (Paras 15, 16, 17 and 18)

(B) Indian Succession Act, 1925 – Section 70 – Revocation of Will – Probate objectors never objected to presentation of certified copy of Cancellation Deed – In such scenario, where no protest was registered by probate applicant against production of certified copy of Cancellation

Deed, he cannot later be allowed to take up plea of non-production of original cancellation deed in course of appellate proceeding – Objection as to admissibility of a registered document must be raised at earliest stage before trial court and objection could not have been taken in appeal, for first time – Objection as to mode of proof should be taken before a document is admitted and marked as exhibit – Allowing such objection to be raised during appellate stage would put the party who placed certified copy on record instead of original copy in a jeopardy and would seriously prejudice interests of that party – It will also be inconsistent with rule of fair play – Given the fact that Probate applicant never raised any objection regarding mode of proof before trial court, there was no occasion for High Court to say that it was duty of defendant to produce original deed of cancellation – Trial Court was right in holding that testator was medically fit and had cancelled Will himself – Evidences of relevant OWs have withstood scrutiny of Trial Court and those have remained unshaken and should be trusted – Impugned order of High Court set aside and judgment of First Additional District Judge restored. (Paras 19, 20, 21, 23, 24, 25, 26 and 27)

Facts of the case:

Present appeal arises out of the judgment and order dated 15.04.2009 of Patna High Court whereby the appeal filed by the probate applicant was allowed in his favour by concluding that 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 whereby, Will, was revoked by testator.

Findings of Court:

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 appropriate stage. This is to avoid prejudice to party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court,

Result : Appeal allowed.