Objection as to mode of proof should be taken before a document is admitted and marked as exhibit: Supreme Court of India
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. This was held by Hon’ble Justice Sanjay Kishan Kaul and Hon’ble Justice Hrishikesh Roy in the case of Lachhmi Narain Singh (D) Through Lrs and Ors. Vs. Sarjug Singh (Dead) Through LRs and Ors. [CIVIL APPEAL NO. 5823 OF 2011] on the 17th of August before the Hon’ble Supreme Court of India at New Delhi. The brief facts of the case are, Rajendra Singh (since deceased) had executed a Will on 14.09.1960 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 Bihar by executing the Will favouring the respondent Sarjug Singh (since deceased). In the probate proceeding initiated by Sarjug Singh 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 According to the objectors, the Will favoring Sarjug Singh was revoked and cancelled by a registered deed dated 02.02.1963. 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 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 The applicant also challenged the genuineness of the testator’s thumb impression on the cancellation deed of the Will. the learned trial Court, under its judgment dated 14.12.1973 concluded that the Will has been revoked and the applicant Sarjug Singh is disentitled to get the Will probated. 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. The high court granted the probate and reversed the finding of the trial court. Aggrieved by this, the present petition has been filed. The learned judges heard the submissions of both the parties and observed that 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 court relied on the judgement in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami Vs. V. P Temple (2003) 8 SCC 752 wherein it was held that, “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”.
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 objectors disbelieved the registered deed of cancellation dated 02.02.1963whereby the Exbt 2 Will was revoked by the Exbt 2) in favour of the applicant Sarjug Singh. The executant 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 favouring the respondent Sarjug Singh 3. In the probate proceeding initiated by Sarjug Singh i.e. Probate testator). Khedaran Kuer also opposed the applicant and she to the objectors the Will favoring Sarjug Singh was revoked and also the objector’s contention that Raj Bansi Kuer was in along with Khedaran Kuer sold several plots of land to the applicant Sarjug Singh was never seriously challenged but the objectors pleaded that the concerned Will was cancelled by a office on 02.02.1963 to execute the registered cancellation deed Ext. ‘C’). The applicant also challenged the genuineness of the 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 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 effect that Rajendra Singh was paralytic and was incapable of then considered the sale deeds produced by the objector Shyam Sunder Kuer and observed that she was dealing with Rajendra 6. The learned trial Court while examining the genuineness of the cancellation deed dated 02.02.1963 referred to the evidence of the handwriting expert Hassan Raza the attesting witness of cancellation deed Jagarnath Prasad with the thumb impression registered at Chapra Registration Office and recorded the marks is of the opinion that all these thumb his cross­examination to discard his evidence and After referring to the testimony of the attesting witness and the 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 Sub­ 7. On the above analysis the learned trial Court under its judgment dated 14.12.1973 concluded that the Will has been revoked and 8. Aggrieved by the rejection of the Probate case by the Trial Court before the High Court. During the pendency of the appeal on 21.03.2002 Sarjug Singh died but no application was filed for 9. The High Court addressed the core issue on whether the testator the original of the cancellation deed and non­presentation of the cancelled by the testator himself. The High Court accordingly In course of the proceedings before this Court suggestion was earlier made to the parties for amicable settlement of the rival 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 was decided against a dead person and the legal heirs of the of the amended memo of parties which were filed we have 12. We have heard Ms. Sreoshi Chatterjee the learned counsel appearing for the appellants objectors. The legal heirs of Sarjug Singh are represented by the learned counsel 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 14. In allowing the appeal of the probate applicant the High Court referred to the health condition of Rajendra Singh who suffered the Sub­Registrar’s Office. Such conclusion was reached even of Cancellation) were both marked without objection when the the evidence of OW­3 OW­4 and OW­5 who led evidence on genuineness of the cancellation deed. Instead erroneous testator to visit the office of the Sub­Registrar to register the 16. That apart the probate applicant never opposed the acceptance Therefore in the face of the Expert’s Reportwhen the Deed have been accepted as genuine particularly in view of the testimony of OW­3 OW­4 and OW­5 who stood firm on execution 17. On the issue of testator’s thumb impression on the cancellation 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 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 by referring to the health condition of the testator when the 18. The key characteristic of thumb impression is that every person nearly impossible. Therefore adverse conclusion should not be deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person affixed his thumb 19. Next we need to consider the implication of the conduct of the objectors who did not produce the original deed of cancellation to be in possession of Yugal Kishore Singh). On this the probate applicant neither objected to production of certified copy nor Kumar learned counsel however contended that even the Trial Deed. As can be seen the probate objectors never objected to keeping ill ­health and it was not possible for him to have gone concerned deed was introduced and marked without protest the genuineness of the cancellation deed should not have drawn an adverse inference against the objectors by referring to the health 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 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 been taken in appeal for the first time. On this we may draw 1 AIR 1915 PC 111 in­Council and the case has been argued on their argument that a registered copy of the Will of 1898 was admitted in evidence without sufficient at the time the District Judge who tried the case in deficiency was supplied. Their Lordships think that there is no substance in the present contention.” 21. A similar view was taken by George Rankin J. in the decision of Objection as to the mode of proof must be taken when the document is tendered and before it is marked as an exhibit. It taken before a document is admitted and marked as exhibit. In present case probate applicant never raised any objection in 22. In support of our above conclusion we may usefully refer to the 2 AIR 1943 PC 83 & V.P Temple3 where Justice Ashok Bhan while dealing with the aspect of disallowing objection as to mode of proof at appellant “20. .…. In the latter case the objection should be taken when the evidence is tendered and once the an exhibit the objection that it should not have been crucial test is whether an objection if taken at the appropriate point of time would have enabled the party not prejudice the party tendering the evidence for two and there and secondly in the event of finding of the court indulgence of the court for permitting a regular mode or parties. Out of the two types of objections referred to hereinabove in the latter case failure to raise a prompt 38 SCC 752 which is sought to be proved being admissible in 23. This Court in the opinion written by Justice S. H. Kapadia in 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 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 appropriate stage. This is to avoid prejudice to the party who copy) in a jeopardy & would seriously prejudice interests of that 47 SCC 107 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 High Court had erred by ignoring the material evidence in 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 but in the present case the certified copy of the registered before the trial Court and therefore High Court’s reliance on 5 AIR 1946 PC 24 26. On the basis of the above examination it is our considered opinion that the Trial Court was right in holding that Rajendra was trusted. Considering the omission of the probate applicants to Page 1