Rule of Fair Play :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.
Explained: The Rule of Fair Play in Proving A Document in Indian Court of Law
Panchkula (ABC Live India): Rule of Fair Play :The Supreme Court of India decided a case titled Lachhmi Narain Singh (D) Through LRs & Ors Vs Sarjug Singh (Dead) Through LRs. & Ors on August 17, 2021, wherein the apex court of India decided the issue that 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 appeal stage.
Brief facts leading to the present appeal are 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, DistrictSaran, Bihar by executing the Will (Ext.2) favouring the respondent Sarjug Singh (since deceased).
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 According to the objectors, the Will favoring Sarjug Singh was revoked and cancelled by a registered deed dated 02.02.1963 (Exbt.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 contention that Raj Bansi Kuer was in possession of all assets belonging to late Rajendra Singh and she along with Khedaran Kuer, sold several plots of land to the appellants. Eight of the vendees who took possession after such purchase, appeared in the probate proceedings and supported the case of the objectors.
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 (Exbt. C) 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 Sub Registrar’s office on 02.02.1963 to execute the registered cancellation deed (Ext. ‘C’). The applicant also challenged the genuineness of the testator’s thumb impression on the cancellation deed of the Will.
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 evidence laid by the objectors, the learned Judge then held that the Will (Ext. 2) was cancelled on 02.02.1963 under a registered deed (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 testator was suffering from paralysis. This observation was made by the trial Court to reject the contention of the applicant to the effect that Rajendra Singh was paralytic and was incapable of cancelling the Will a few months before he died. The learned Judge then considered the sale deeds produced by the objector Shyam Sunder Kuer and observed that she was dealing with Rajendra Singh’s property as his legal heir and this according to the Court was also indicative of the fact that the Will for which probate was sought, was revoked by the testator himself.
The learned trial Court while examining the genuineness of the cancellation deed dated 02.02.1963 (Ext. ‘C’) referred to the evidence of the handwriting expert, Hassan Raza (OW3), the attesting witness of cancellation deed, Jagarnath Prasad (OW4) and the scribe of the cancellation deed Shashinath Mishra (OW5). The OW3 as an expert, compared the admitted thumb mark of Rajendra 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.
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. During the pendency of the appeal, on 21.03.2002, Sarjug Singh died but no application was filed for substitution of the deceased appellant.
The High Court addressed the core issue on whether the testator had cancelled the Will. Then the Court noted the precarious health condition of the testator and the failure of the objectors to produce the original of the cancellation deed and nonpresentation of the material witness. On such consideration, the appellate Court held that the deed cancelling the Will should not be taken into evidence.
The learned Judge also noted that the validity of the Will was never seriously questioned and the objectors had stated that the Will was cancelled by the testator himself. The High Court accordingly granted the probate and reversed the finding of the trial Court. The subsequent purchasers of the assets who supported the objector’s case in the probate proceedings, have then filed the present appeal.
The Supreme Court in this case ruled that 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 judgment in para 20 ruled 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. 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 earliest stage before the trial court and the objection could not have been taken in appeal, for the first time. On this we may draw support from observations made by Justice Ameer Ali in Padman v. Hanwanta where the following was set out by the Privy Council “The defendants have now appealed to His Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the Will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.”(Emphasis in original).
Further in para no 22 of the judgment the supreme
court of India says, “In support of our above conclusion, we
may usefully refer to the ratio in R.V.E Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P
Temple where Justice Ashok Bhan while dealing with the aspect
of disallowing objection as to mode of proof at appellant stage
as a rule of fair play 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 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.........” (Emphasis in original).
The Supreme Court Referred Following Case law in this Case;