Deeds and Documents: Wills and Codicils – Revocation of Will – Probate – On facts, testator executed a Will in favour of applicant – Probate proceedings by applicant – Objector’s case that Will favouring the applicant was revoked and cancelled by a registered deed – Trial court held that the applicant not entitled to get the Will probated as the same was revoked – In appeal, the High Court granted probate holding that the Will favouring the applicant was not cancelled – High Court disbelieved the registered deed of cancellation whereby, the Will was revoked by the testator – On appeal, held: High Court erred by ignoring the material evidence in disbelieving the Cancellation Deed and holding that the applicant was entitled to grant of probate of the Will – Probate applicant never raised any objection regarding the mode of proof before the trial court, thus, there is merit in the case of the objectors – Furthermore, the trial court was right in holding that the testator was medically fit and had cancelled the Will himself – Also genuineness of the Cancellation deed cannot be doubted only due to the fact that same was not signed and the testator as a literate person, affixed his thumb impression which was proved to be genuine by the expert – Thus, the order of High Court set aside. Allowing the appeal, the Court
HELD: 1.1 In allowing the appeal of the probate applicant, the High Court referred to the health condition of the testator-R 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. Inference was accordingly drawn on his impersonation, at the Sub-Registrar’s Office. Such conclusion was reached even though, neither any suggestion nor any crossexamination was put to the objector’s witnesses, regarding impersonation of the testator at the Sub-Registrar’s Office. It is also important to record that Report of Handwriting Expert and Deed of Cancellation were both marked without objection, when the documents were tendered in the trial Court. The High Court 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. 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, when the Deed of Cancellation 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-3-5, who stood firm on execution of the registered revocation deed by the testator. [Para 14-16][219-F-H; 220-A-D]
1.2 On the issue of testator’s thumb impression on the cancellation deed, it is telling that all the four deeds executed by the testator 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 Report of the handwriting expert (OW-3) clearly indicates that the thumb impression on all the documents placed before the Expert’s opinion are of the same person-R. Since the Expert’s Report 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 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 R 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. [Para 17, 18][220-D-H]
1.3 As regards 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 YK). On this, the probate applicant neither objected to production of certified copy nor insisted on 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 R was keeping ill-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 submission 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. 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. [Para 19, 20][221-A-F]
1.4 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 would also be inconsistent with the rule of fair play. [Para 24][223D-G]
1.5 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. 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. [Para 25][223G-H; 224-A]
1.6 On the basis of the examination, the trial court was right in holding that the testator was medically fit and had cancelled the Will himself. 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, there is merit in the case of the objectors. The order of High Court is set aside and the judgment of the First Additional District Judge. [Para 26, 27][224-C-E] Padman v. Hanwanta AIR 1915 PC 111; Gopal Das v. Sri Thakurji AIR 1943 PC 83; R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple (2003) 8 SCC 752 : [2003] 4 Suppl. SCR 450;
Dayamathi Bai v. KM Shaffi (2004) 7 SCC 107 : [2004]
3 Suppl. SCR 336; Babu Anand Behari v. Dinshow & Co. AIR 1946 PC 24 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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