17 Aug 2121

If no objection was taken by the applicant against the production of certified copy of the cancellation Deed before the trial Court then he later cannot be allowed to take the plea of non-production of such deed in appeal - Supreme Court of India

Case : Lachhmi Narain Singh (D) Through LR’S & Ors v. Sarjug Singh (Dead) through LR’S & Ors. Civil Appeal No. 5832 of 2011

Court : Supreme Court of India

Bench : Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy

Decided on : 17 Aug 2121

Brief Facts and Procedural History:

1. Rajendra Singh had executed a will in favour of applicant Sarjug Singh but the executant died on 21.08.1963 and leaving behind his sister (Duler Kuer), Wife of late Thakur Prasad Singh and the nephew Yugul Kishore Singh and also the applicant, as the testator’s wife died and therefore the deceased by executing the will favouring the respondent Sarjug Singh. Afterwards, A Probate Proceedings was initiated by the respondent (Sarjug Singh) and the objection was filed by the second wife (Shyam Sunder Kuer Alias), widow (Raj Bansi Juer) and they stated that will which is favouring the Sarjug Singh was revoked and cancelled by the registered deed and also the widow was in the possession of all assets belong to the deceased and she along with the Khedaran Kuer (She claimed to be the widow of Jamadar Singh who was the son of the late Jag Jitan Singh (brother of the testator)sold several plots of the land to the appellants and who took possession after such purchase also supported the case of objectors. 

2. But it was also stated that the validity of the will in favour of the Applicant was never seriously challenged, only the objections were pleaded. Afterwards, The Applicant stated that the testator was in poor health and not in the position to attend the Sub Registrar’s office to execute the registered cancellation deed and also challenged the testator’s thumb impression on the cancellation deed of the will. Later, the Additional District Judge Held that the will is a genuine document and the will was cancelled under a registered deed. The Court also held that the testator was not suffering from the paralysis. The Court also held that the will was revoked by the testator himself and the Applicant is disentitled to get the will probated. 

3. Afterwards, the Applicant filed an appeal before the High Court against the above order but he died during the pendency of the appeal and also no application was filed for the substitution of the deceased appellant.  The Appellant Court granted the probate and reversed the findings of the High Court by order dated 15.04.2009. The subsequent purchasers of the assets who supported the objector’s filed the present appeal 

The Issues of the Case

Whether Rajendra Singh had revoked the will in favour of Sarjug Singh and his mental or physical capacity leads to execute the Cancellation deed?

Whether the thumb impression of Rajendra Singh on the registered document is genuine?

The Observations of the Court

1. The Honourable Supreme Court observed that the High Court has failed to give due weightage to the evidence on the genuineness of the cancellation of the deed. Of the was erroneous presumption which was drawn on impersonation and incapability of the testator. It was also observed that the report of handwriting and the deed of cancellation were marked without any objection, therefore it should be accepted as genuine. 

2. The Honourable Supreme Court observed that all the four deeds executed by Rajendra Singh contained his thumb impression, not his signature and held that an adverse presumption cannot be drawn merely because the testator chose to append his thumb impression and also as per the expert opinion the thumb impression was of the same person i.e. Rajendra Singh. The Honourable Supreme Court held that the High Court inference was erroneously drawn by referring to the health conditions of the testator when the revocation deed was registered.

3. The Honourable Supreme Court observed that it cannot be said that the deed was not signed; it creates a doubt on the genuineness of the Cancellation deed. The Honourable Supreme Court observed that no objection was taken by the probate applicant against the production of the certified copy of the cancellation Deed before the trial Court then he later cannot be allowed to take the plea of non-production of the original cancellation deed as it should be raised at the earliest stage. 

4. The Honourable High Court referred to one judgment i.e. Gopal Das vs. Sri Thakurji, AIR 1943 PC 83, It was held that objection as to the mode of proof must be taken before a document is admitted and marked as exhibit. It cannot be taken on appeal. The Honourable Supreme Court observed that if the objection is allowed during the appellate stage would prejudice the interest of the party or it is inconsistent with the rule of fair play. 

The Decision Held by the Court

The Honourable Supreme Court allowed the present appeal and set aside the impugned order of the High Court and restored the judgment of the First Additional District Judge.

Click here to view/download the judgement >