Sunday 9 January 2022

Whether court can draw adverse inference if a literate person puts thumb impression instead of signature?

 On the issue of testator’s thumb impression on the cancellation

deed, it is telling that 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. That apart, the Ext. B

Report of the handwriting expert (OW3) clearly indicates that the thumb impression on all the documents placed before the Expert’s opinion are 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. A contrary inference according to our opinion, was erroneously drawn by the High court by referring to the health condition of the testator, when the revocation deed was registered. {Para 17}

18. 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.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5823 OF 2011

Lachhmi Narain Singh (D) Through LRs Vs  Sarjug Singh (Dead) Through LRs. 

Author: Hrishikesh Roy, J.

Dated: AUGUST 17, 2021

1. This appeal arises out of the judgment and order dated 15.04.2009

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. 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02.02.1963 (Exbt C) whereby, the Exbt 2 Will, was revoked by the

testator.

RELEVANT FACTS

2. Rajendra Singh (since deceased) had executed a Will on 14.09.1960

(Exbt 2) in favour of the applicant Sarjug Singh. The executant

died issueless on 21.08.1963 leaving behind his sister Duler Kuer,

wife of late Thakur Prasad Singh and nephew Yugal Kishore Singh

and also the probate applicant Sarjug Singh. The case of the

applicant is 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, DistrictSaran,

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 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.

5. In the Probate case filed by Sarjug Singh, the learned First

Additional District Judge, Chapra firstly concluded that the Will

(Ext. 2) is a genuine document. However, by referring to the

evidence laid by the objectors, the learned Judge then held that the

Will (Ext. 2) was cancelled on 02.02.1963 under a registered deed

(Ext. C), a few months before Rajendra Singh died on 21.08.1963,


at Patna hospital. The Court also referred the death certificate

(Ext. F) to conclude that the same does not indicate that the

testator was suffering from paralysis. This observation was made

by the trial Court to reject the contention of the applicant to the

effect that Rajendra Singh was paralytic and was incapable of

cancelling the Will a few months before he died. The learned Judge

then considered the sale deeds produced by the objector Shyam

Sunder Kuer and observed that she was dealing with Rajendra

Singh’s property as his legal heir and this according to the Court

was also indicative of the fact that the Will for which probate was

sought, was revoked by the testator himself.

6. The learned trial Court while examining the genuineness of the

cancellation deed dated 02.02.1963 (Ext. ‘C’) referred to the

evidence of the handwriting expert, Hassan Raza (OW3),

the

attesting witness of cancellation deed, Jagarnath Prasad (OW4)

and the scribe of the cancellation deed Shashinath Mishra (OW5).

The OW3

as an expert, compared the admitted thumb mark of

Rajendra Singh on the deed of gift dated 23.7.1947 in favour of

Jugal Kishore Singh (Ext. 1) and on the Will dated 14.09.1960 in

favour of Sarjug Singh (Ext. 2) with the thumb impression


registered at Chapra Registration Office and recorded the

following :“

8. …..xxx…The expert who examined these thumb

marks is of the opinion that all these thumb

impressions tally. O.W.3 S.E.T. Hassan Raza is the

Expert and Ext. B is his report. There is nothing in

his crossexamination

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 some body also had

impersonated Rajendra Singh before the SubRegistrar….

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 the testator and the failure of the objectors to produce

the original of the cancellation deed and nonpresentation

of the

material witness. On such consideration, the appellate Court held

that the deed cancelling the Will should not be taken into evidence.

The learned Judge also noted that the validity of the Will was never

seriously questioned and the objectors had stated that the Will was

cancelled by the testator himself. The High Court accordingly

granted the probate and reversed the finding of the trial Court. The

subsequent purchasers of the assets who supported the objector’s

case in the probate proceedings, have then filed the present appeal.

10. In course of the proceedings before this Court, suggestion was

earlier made to the parties for amicable settlement of the rival

claims and accordingly time was granted to the counsel to obtain

instructions. But when the case was taken up for final hearing, the

Court is informed by the respondents’ counsel that they failed to

reach any acceptable settlement and the appeal should therefore be

heard.

11. Insofar as the nonsubstitution

of the deceased Sarjug Singh before

the High Court and nonsubstitution

of legal heirs of other

contesting parties, the same need not detain us at this point, in


view of the proceeding on 13.04.2021 in this Court where, the

parties have agreed that although the appeal before the High Court

was decided against a dead person and the legal heirs of the

present appellants were belatedly brought on record, since all legal

heirs of the contesting parties are represented, the case should be

decided on its legal merit. In view of such consensus, taking note

of the amended memo of parties which were filed, we have

proceeded to adjudicate the appeal.

DISCUSSION AND DECISION

12. We have heard Ms. Sreoshi Chatterjee, the learned counsel

appearing for the appellants/objectors. The legal heirs of Sarjug

Singh (probate applicant) are represented by the learned counsel

Mr. Abhay Kumar.

13. The merit of the 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 Sarjug Singh and his physical

and mental capacity to execute the Cancellation Deed (Ext. C) and

also whether thumb impression of Rajendra Singh on the registered

document dated 02.02.1963 is genuine or not.


14. 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 SubRegistrar’s

Office, to cancel

the Will. Inference was accordingly drawn on his impersonation, at

the SubRegistrar’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

Rajendra Singh at the SubRegistrar’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 OW3,

OW4

and OW5

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 SubRegistrar

to register the

Cancellation Deed.

16. 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 (Ext. B), when the Deed

of Cancellation (Ext. C) 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 OW3,

OW4

and OW5,

who stood firm on execution

of the registered revocation deed by the testator, Rajendra Singh.

17. On the issue of testator’s thumb impression on the cancellation

deed, it is telling that 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. That apart, the Ext. B

Report of the handwriting expert (OW3) clearly indicates that the

thumb impression on all the documents placed before the Expert’s

opinion are 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. A contrary inference

according to our opinion, was erroneously drawn by the High court

by referring to the health condition of the testator, when the

revocation deed was registered.


18. 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.

19. Next, we need to consider 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 Yugal Kishore Singh). On this, the probate

applicant neither objected to production of certified copy nor

insisted on production of the original Cancellation Deed. Mr. Abhay

Kumar, learned counsel however contended 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

Page 10 of 16

alone to the SubRegistrar’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 nonproduction

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 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. On this we may draw

support from observations made by Justice Ameer Ali in Padman v.

Hanwanta1 where the following was set out by the Privy Council

1 AIR 1915 PC 111

Page 11 of 16

“The defendants have now appealed to His MajestyinCouncil,

and the case has been argued on their

behalf in great detail. It was urged in the course of the

argument that a registered copy of the Will of 1898

was admitted in evidence without sufficient

foundation being laid for its admission. No objection,

however, appears to have been taken in the first court

against the copy obtained from the Registrar's office

being put in evidence. Had such objection been made

at the time, the District Judge, who tried the case in

the first instance, would probably have seen that the

deficiency was supplied. Their Lordships think that

there is no substance in the present contention.”

(emphasis in original)

21. A similar view was taken by George Rankin, J. in the decision of

Privy Council in Gopal Das v. Sri Thakurji2 where it was held that

Objection as to the mode of proof must be taken when the

document is tendered and before it is marked as an exhibit. It

cannot be taken in appeal. Objection as to mode of proof should be

taken before a document is admitted and marked as exhibit. In

present case probate applicant never raised any objection in

regards to mode of proof of cancellation deed before the Trial Court,

as is evident from perusal of records and this must be held against

him.

22. In support of our above conclusion, we may usefully refer to the

ratio in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami

2 AIR 1943 PC 83

Page 12 of 16

& V.P Temple3 where Justice Ashok Bhan while dealing with the

aspect of disallowing objection as to mode of proof at appellant

stage as a rule of fair play to avoid prejudice to the other side, said

as follows:“

20. …….…. In the latter case, the objection should be

taken when the evidence is tendered and once the

document has been admitted in evidence and marked as

an exhibit, the objection that it should not have been

admitted in evidence or that the mode adopted for proving

the document is 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 is fair to both the

parties. Out of the two types of objections, referred to

hereinabove, in the latter case, failure to raise a prompt

and timely objection amounts to waiver of the necessity for

insisting on formal proof of a document, the document itself

3 (2003) 8 SCC 752

Page 13 of 16

which is sought to be proved being admissible in

evidence………” (emphasis in original)

23. This Court in the opinion written by Justice S. H. Kapadia in

Dayamathi Bai v. KM Shaffi4 has similarly held that objection as to

the mode of proof falls within procedural law. Therefore, such

objections could be waived. Moreover, objection is to be taken

before the document is marked as an exhibit and admitted in

Court.

24. In view of the foregoing discussion, 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

4 (2004) 7 SCC 107

Page 14 of 16

party. It will also be inconsistent with the rule of fair play as

propounded by Justice Ashok Bhan in the case of R.V.E.

Venkatachala (Supra).

25. In consequence of above, we are of the considered opinion that 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 (Ext. 2).

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. The reliance therefore on

the opinion of Lord Thankerton in Babu Anand Behari v. Dinshow

& Co.5 is found to be unjustified. This is because in that case, the

authenticity of some extract of power of attorney, was questioned

but in the present case the certified copy of the registered

cancellation deed is produced and most importantly, the same was

not objected. Moreover, the plea of mode of proof was never raised

before the trial Court and therefore High Court’s reliance on

aforementioned case to support the applicant is unacceptable.

5 AIR 1946 PC 24

Page 15 of 16

26. On the basis of the above examination, it is our considered opinion

that the Trial Court was right in holding that Rajendra was

medically fit and had cancelled the Will himself. It is also seen that

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, we

find merit in the case of the objectors.

27. For the above reasoning, we allow the present appeal set aside the

impugned order of High Court and restore the judgment of the First

Additional District Judge Chapra, with no order as to costs.

..……………………………….J.

[SANJAY KISHAN KAUL]

…………………………………

J.

[HRISHIKESH ROY]

NEW DELHI

AUGUST 17, 2021


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