Case: Lachhmi Narain Singh (D) Through LRs &amp; Ors Vs. Sarjug Singh (Dead) Through LRs. &amp; Ors

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 Thakurji AIR 1943 PC 83 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 & V.P Temple (2003) 8 SCC 752 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 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 Shaffi (2004) 7 SCC 107 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 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. AIR 1946 PC 24 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 Courts reliance on aforementioned case to support the applicant is unacceptable. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 the concerned cancellation deed, in the trial Court. Therefore, in the face of the Experts 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 OW-3, OW-4 and OW-5, who stood firm on execution of the registered revocation deed by the testator, Rajendra Singh.17. On the issue of testators 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 (OW-3) clearly indicates that the thumb impression on all the documents placed before the Experts 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 testators 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 alone to the Sub- Registrars 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. Hanwanta AIR 1915 PC 111 where the following was set out by the Privy Council.The defendants have now appealed to His Majestyin-Council, 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 Registrars 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)22. In support of our above conclusion, we may usefully refer to the ratio in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple (2003) 8 SCC 752  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 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 Shaffi (2004) 7 SCC 107  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 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. AIR 1946 PC 24  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 Courts reliance on aforementioned case to support the applicant is unacceptable.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.