TMI Blog2021 (8) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... jection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor'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 (Ext. 2) favouring the Respondent Sarjug Singh (since deceased). 3. In the probate proceeding initiated by Sarjug Singh i.e. Probate Case No. 19/1967, objection was filed by Shyam Sunder Kuer alias Raj Bansi Kuer (claiming to be the second wife and widow of the testator). Khedaran Kuer also opposed the applicant and she claimed to be the widow of Jamadar Singh who was the son of late Jag Jitan Singh (brother of the testator Rajendra Singh). According to the objectors, the Will favoring Sarjug Singh was revoked and cancelled by a registered deed dated 02.02.1963 (Exbt. C). It was also the objector's contention that Raj Bansi Kuer was in possession of all assets belonging to late Rajendra Singh and she along with Khedaran Kuer, sold several plots of land to the Appellants. Eight of the vendees who took possession after such purchase, appeared in the probate proceedings and supported the case of the objectors. 4. It is relevant to state that the validity of the Will in favour of the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Raza is the Expert and Ext. B is his report. There is nothing in his cross-examination to discard his evidence and report .....xxx.... After referring to the testimony of the attesting witness and the scribe of the cancellation deed, the trial Court concluded as below: 10. .....xxx...There is no evidence on the side of the applicant nor there is any suggestion to the attesting witness O.W. 4 and Shashinath Mishra the scribe O.W. 5 to the effect that somebody also had impersonated Rajendra Singh before the Sub-Registrar....xxx.... 7. On the above analysis, the learned trial Court, under its judgment dated 14.12.1973 concluded that the Will has been revoked and the applicant Sarjug Singh is disentitled to get the Will probated. 8. Aggrieved by the rejection of the Probate case by the Trial Court, the applicant Sarjug Singh filed the First Appeal No. 127 of 1974 before the High Court. During the pendency of the appeal, on 21.03.2002, Sarjug Singh died but no application was filed for substitution of the deceased Appellant. 9. The High Court addressed the core issue on whether the testator had cancelled the Will. Then the Court noted the precarious health condition of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. Inference was accordingly drawn on his impersonation, at the Sub-Registrar's Office. Such conclusion was reached even though, neither any suggestion nor any cross-examination was put to the objector's witnesses, regarding impersonation of the testator Rajendra Singh at the Sub-Registrar's Office. It is also important to record that Ext. B (Report of Handwriting Expert) and Ext. C (Deed of Cancellation) were both marked without objection, when the documents were tendered in the trial Court. 15. 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. 16. That apart, the probate applicant never opposed the acceptance and marking of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that even the Trial Court had not pressed for 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 Rajendra 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 contention of the applicant 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. 20. 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. As already noted, the main contention of probate applicants was that the mode of proof of Cancellation deed was inadequate. However, such was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a Rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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