LACHHMI NARAIN SINGH (D) THROUGH LRS & ORS. versus SARJUG SINGH (DEAD) THROUGH LRS. & ORS.

Citation: [2021] 8 S.C.R. 212 · Decided: 17-08-2021 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Appeal(s) allowed

cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
212
SUPREME COURT REPORTS
[2021] 8 S.C.R.
LACHHMI NARAIN SINGH (D) THROUGH LRS & ORS.
v.
SARJUG SINGH (DEAD) THROUGH LRS. & ORS.
(Civil Appeal No. 5823 of 2011)
AUGUST 17, 2021
[SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]
Deeds and Documents: Wills and Codicils – Revocation of
Will – Probate – On facts, testator executed a Will in favour of
applicant – Probate proceedings by applicant – Objector’s case
that Will favouring the applicant was revoked and cancelled by a
registered deed – Trial court held that the applicant not entitled to
get the Will probated as the same was revoked – In appeal, the High
Court granted probate holding that the Will favouring the applicant
was not cancelled – High Court disbelieved the registered deed of
cancellation whereby, the Will was revoked by the testator – On
appeal, held: High Court erred by ignoring the material evidence
in disbelieving the Cancellation Deed and holding that the applicant
was entitled to grant of probate of the Will – Probate applicant
never raised any objection regarding the mode of proof before the
trial court, thus, there is merit in the case of the objectors –
Furthermore, the trial court was right in holding that the testator
was medically fit and had cancelled the Will himself – Also
genuineness of the Cancellation deed cannot be doubted only due
to the fact that same was not signed and the testator as a literate
person, affixed his thumb impression which was proved to be genuine
by the expert – Thus, the order of High Court set aside.
Allowing the appeal, the Court
HELD: 1.1 In allowing the appeal of the probate applicant,
the High Court referred to the health condition of the testator-R
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 at the Sub-Registrar’s Office. It is
[2021] 8 S.C.R. 212
212
A
B
C
D
E
F
G
H
213
also important to record that Report of Handwriting Expert and
Deed of Cancellation were both marked without objection, when
the documents were tendered in the trial Court. The High Court
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. 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, 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, particularly in view of the testimony of OW-3-5, who
stood firm on execution of the registered revocation deed by the
testator. [Para 14-16][219-F-H; 220-A-D]
1.2 On the issue of testator’s thumb impression on the
cancellation deed, it is telling that all the four deeds executed by
the testator 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 Report of the handwriting expert (OW-3) clearly
indicates that the thumb impression on all the documents placed
before the Expert’s opinion are of the same person-R. Since the
Expert’s Report 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
was erroneously drawn by the High court by referring to the health
condition of the testator, when the revocation deed was
registered. 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 R as a literate person,
affixed his thumb impres

Excerpt shown. Read the full judgment & AI analysis in Lexace.