TaxTMI 
TaxTMI 
2021 (8) TMI 1398
X X X X Extracts X X X X
X X X X Extracts X X X X
...., was revoked by the testator. RELEVANT FACTS 2. Rajendra Singh (since deceased) had executed a Will on 14.09.1960 (Exbt 2) 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 village Pojhi Bujurg and Pojhi Kapoor, District-Saran, Bihar by executing the Will (Ext. 2) favouring the Respondent Sarjug Singh (since deceased). 3. In the probate proceeding initiated by Sarjug Singh i.e. Probate Case No. 19/1967, 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 According to the objectors, the Will favoring Sarjug Singh was revoked and cancelled by a registered deed dated 02.02.1963 (Exbt. C). It was also the objector's con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jendra Singh on the deed of gift dated 23.7.1947 in favour of Jugal Kishore Singh (Ext. 1) and on the Will dated 14.09.1960 in favour of Sarjug Singh (Ext. 2) with the thumb impression registered at Chapra Registration Office and recorded the following: 8. .....xxx...The expert who examined these thumb marks is of the opinion that all these thumb impressions tally. O.W. 3 S.E.T. Hassan Raza is the Expert and Ext. B is his report. There is nothing in his cross-examination to discard his evidence and report .....xxx.... After referring to the testimony of the attesting witness and the scribe of the cancellation deed, the trial Court concluded as below: 10. .....xxx...There is no evidence on the side of the applicant nor there is any suggestion to the attesting witness O.W. 4 and Shashinath Mishra the scribe O.W. 5 to the effect that somebody also had impersonated Rajendra Singh before the Sub-Registrar....xxx.... 7. On the above analysis, the learned trial Court, under its judgment dated 14.12.1973 concluded that the Will has been revoked and the applicant Sarjug Singh is disentitled to get the Will probated. 8. Aggrieved by the rejection of the Probate case by the Trial Court....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aim of either party in the present matter will hinge around the core issue as to whether Rajendra Singh had actually revoked the Will in favour of Sarjug Singh and his physical and mental capacity to execute the Cancellation Deed (Ext. C) and also whether thumb impression of Rajendra Singh on the registered document dated 02.02.1963 is genuine or not. 14. In allowing the appeal of the probate applicant, the High Court referred to the health condition of Rajendra Singh 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 Rajendra Singh at the Sub-Registrar's Office. It is also important to record that Ext. B (Report of Handwriting Expert) and Ext. C (Deed of Cancellation) were both marked without objection, when the documents were tendered in the trial Court. 15. The High Court in our assessment, failed to gi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, 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-Registrar's 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 pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 findi....