Will revoked by testator can’t be allowed to be probated by raising objection at appellate stage for first time: Supreme Court

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Read judgment: Lachhmi Narayan Singh vs. Sarjug Singh

Pankaj Bajpai

New Delhi, August 20, 2021: Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, the Supreme Court has ruled 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,” opined the Apex Court.  

A Division Bench of Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy observed 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. 

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, added the Bench. 

The observations came pursuant to a judgment passed by 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’s decision in reversing the Trial Court’s order holding the applicant disentitled to get the Will probated as the same was revoked, had been challenged before the present Court. 

The core facts which was born out from the record was revocation of a Will, which was claimed to be cancelled by the testator himself, resulting in disentitlement to get the same probated. 

The merit of the claim of either party in the present matter hinges around the core issue as to whether Rajendra Singh (deceased testator) had actually revoked the Will in favour of Sarjug Singh (deceased legatee) and his physical and mental capacity to execute the Cancellation Deed and also whether thumb impression of Rajendra Singh on the registered document was genuine or not. 

The Top Court found that the High Court, while giving verdict against the objectors, disbelieved the registered deed of cancellation whereby the Will was revoked by the testator.

The Division Bench noted that while 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 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, added the Bench.

The Apex Court also noted that 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, added the Supreme Court. 

“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,” opined the Apex Court. 

The Top Court therefore concluded that the Trial Court was right in holding that the testator was medically fit and had cancelled the Will himself. 

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