Supreme Court upholds rejection of probate application after testator validly cancelled will through registered cancellation deed

SC set aside HC order granting probate of will. Trial court had correctly rejected probate application after finding testator validly cancelled will through registered cancellation deed. HC erroneously doubted genuineness of cancellation deed despite expert report confirming authentic thumb impression and witness testimony supporting execution. Court held thumb impression forgery nearly impossible and adverse inference cannot be drawn from literate person using thumb impression instead of signature. Probate applicant failed to object to cancellation deed's admission at trial stage, precluding appellate challenge regarding mode of proof. Trial court's finding that testator was mentally capable and personally executed cancellation upheld.

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Issues Involved:
1. Validity of the Will executed by Rajendra Singh in favor of Sarjug Singh.
2. Alleged cancellation of the Will by a registered deed dated 02.02.1963.
3. Physical and mental capacity of Rajendra Singh to execute the cancellation deed.
4. Genuineness of the thumb impression on the cancellation deed.
5. Admissibility and mode of proof of the cancellation deed in court.

Detailed Analysis:

1. Validity of the Will Executed by Rajendra Singh:
The appeal arises from a judgment by the Patna High Court, which concluded that the Will favoring Sarjug Singh was not canceled, thus reversing the Trial Court's decision. The High Court's decision was based on the disbelief of a registered deed of cancellation dated 02.02.1963. The original Will (Exbt 2) was executed by Rajendra Singh on 14.09.1960 in favor of Sarjug Singh. The probate applicant argued that the Will was genuine and that Rajendra Singh bequeathed his property to Sarjug Singh due to being issueless.

2. Alleged Cancellation of the Will:
The objectors contended that the Will was revoked by a registered deed dated 02.02.1963 (Exbt C). The Trial Court initially found the Will to be genuine but concluded that it was canceled based on evidence, including the death certificate and the sale deeds produced by the objectors. The High Court, however, found that the cancellation deed should not be taken into evidence due to the testator's poor health and the failure to produce the original deed.

3. Physical and Mental Capacity of Rajendra Singh:
The applicant claimed that Rajendra Singh was in poor health and paralytic, making it impossible for him to execute the cancellation deed. The Trial Court referred to the death certificate, which did not indicate paralysis, and the evidence of the handwriting expert and attesting witnesses to conclude that Rajendra Singh was capable of executing the cancellation deed. The High Court, however, inferred impersonation due to the testator's health condition, despite no suggestion or cross-examination on this point.

4. Genuineness of the Thumb Impression:
The genuineness of the thumb impression on the cancellation deed was a key issue. The handwriting expert (OW-3) confirmed that the thumb impressions on various documents, including the cancellation deed, matched. The Trial Court accepted this evidence, but the High Court doubted the genuineness based on the health condition of the testator. The Supreme Court emphasized that thumb impressions are unique and difficult to forge, supporting the genuineness of the cancellation deed.

5. Admissibility and Mode of Proof of the Cancellation Deed:
The High Court's decision was also based on the non-production of the original cancellation deed. The Supreme Court noted that the probate applicant did not object to the production of the certified copy during the trial, thus waiving the right to object later. The Supreme Court cited precedents emphasizing that objections to the mode of proof must be raised at the trial stage, not on appeal. The failure to raise such objections at the trial stage means they cannot be entertained later.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the judgment of the First Additional District Judge, Chapra. The Court concluded that the Trial Court rightly held that Rajendra Singh was medically fit and had canceled the Will himself. The evidence of the relevant witnesses was found to be credible and unshaken. The Supreme Court emphasized the importance of raising objections regarding the mode of proof at the trial stage to avoid prejudice and ensure fair play.

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