Case Note & Summary
The appeal arose from a probate dispute concerning the Will of Rajendra Singh, who executed a Will on 14.09.1960 in favour of Sarjug Singh. Rajendra Singh died issueless on 21.08.1963. Objectors, including Shyam Sunder Kuer and Khedaran Kuer, claimed that the Will was revoked by a registered cancellation deed dated 02.02.1963 (Exbt C). The probate applicant, Sarjug Singh, contested the cancellation, alleging that Rajendra Singh was in poor health, paralytic, and incapable of attending the Sub-Registrar's office, and challenged the genuineness of his thumb impression on the cancellation deed. The Trial Court held the Will was revoked, denying probate. The High Court reversed, granting probate by disbelieving the cancellation deed due to the testator's health and non-production of the original. The Supreme Court considered the core issue of whether Rajendra Singh had revoked the Will, his capacity to execute the cancellation deed, and the genuineness of his thumb impression. The appellants argued that the cancellation deed and expert report were marked without objection in the trial court, making them admissible, and that the expert evidence confirmed the thumb impression's genuineness. The respondents contended that the testator's health precluded execution and that the original cancellation deed was not produced. The Court analyzed that the cancellation deed and expert report were admitted without objection, thus their genuineness could not be later questioned. The expert report indicated the thumb impressions on all documents, including the cancellation deed, were of Rajendra Singh, and no suggestion of impersonation was put to the attesting witness or scribe. The Court held that the High Court erred in drawing inferences of impersonation and incapacity without evidence, and that the cancellation deed was validly executed. The decision reversed the High Court's judgment, upholding the Trial Court's finding that the Will was revoked and the probate applicant was disentitled to probate.
Headnote
A) Evidence Law - Admissibility of Documents - Marking Without Objection - Indian Evidence Act, 1872 - The cancellation deed (Ext. C) and expert report (Ext. B) were marked without objection in the trial court, making them admissible and their genuineness cannot be questioned later. Held that the High Court erred in treating them as inadmissible. (Paras 14, 16) B) Evidence Law - Expert Evidence - Thumb Impression Comparison - Indian Evidence Act, 1872 - The handwriting expert's report (Ext. B) indicated that the thumb impressions on all documents, including the cancellation deed, were of the same person (Rajendra Singh). Held that the genuineness of the thumb impression on the cancellation deed is established, and adverse presumption cannot be drawn merely because a literate person affixed a thumb impression. (Paras 17, 18) C) Evidence Law - Witness Testimony - Attesting Witness and Scribe - Indian Evidence Act, 1872 - The attesting witness (OW4) and scribe (OW5) of the cancellation deed testified to its execution by the testator, and no suggestion of impersonation was put to them in cross-examination. Held that the High Court erred in drawing an inference of impersonation without basis. (Paras 6, 15) D) Succession Law - Revocation of Will - Registered Cancellation Deed - Indian Succession Act, 1925 - The testator executed a registered cancellation deed (Ext. C) on 02.02.1963, revoking the Will (Ext. 2) dated 14.09.1960. Held that the cancellation is valid, and the probate applicant is disentitled to probate. (Paras 2, 5, 7) E) Civil Procedure - Substitution of Parties - Consent to Proceed - Code of Civil Procedure, 1908 - Although the appeal before the High Court was decided against a dead person and substitutions were belated, all legal heirs of contesting parties are represented and agreed to decide the case on merits. Held that the appeal can be adjudicated on legal merit. (Para 11)
Issue of Consideration
Whether the testator Rajendra Singh had revoked the Will in favour of Sarjug Singh through a registered cancellation deed dated 02.02.1963, and whether his physical and mental capacity to execute the cancellation deed and the genuineness of his thumb impression on it were established.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court's judgment, and upheld the Trial Court's decision that the Will was revoked by the registered cancellation deed, disentitling the probate applicant to probate.
Law Points
- Burden of proof in probate proceedings
- admissibility of registered cancellation deed
- genuineness of thumb impression
- presumption against impersonation
- weight of expert evidence
- non-production of original document
