The Supreme Court dismissed an appeal seeking substitution of a legal heir, holding that a Will cannot be treated as genuine when the only attesting witness admitted, “I do not know the contents of my chief affidavit” and “I do not know the contents of the will.” The Court emphasized that even the slightest doubt about an attestor’s credibility makes proving a Will extremely difficult.
New Delhi: The Supreme Court of India has dismissed an appeal that sought substitution of a legal heir based on a Will, holding that the document could not be treated as genuine when the only attesting witness admitted that he did not know the contents of his own affidavit filed as examination-in-chief and that it was not prepared on his instructions.
A Bench of Justice Prashant Kumar Mishra and Justice Vipul M. Pancholi upheld the decision of the High Court and made it clear that when there is even the “slightest doubt” about the credibility of the sole attesting witness, it becomes extremely difficult for a court to accept and prove a Will.
The case before the Supreme Court arose from a long-pending property dispute and involved the question of whether the appellant had the legal right to continue an appeal after the death of the original plaintiff.
The core issue was whether the appellant had successfully proved a Will allegedly executed by the original plaintiff, which would entitle him to be impleaded as her legal representative.
The Court observed that the evidentiary value of the only attesting witness was “seriously dented” because, during cross-examination, the witness clearly admitted that he did not know the contents of the affidavit filed as his examination-in-chief and that the affidavit was not prepared based on his instructions.
The litigation began with a civil suit filed in 1983 by Avanthakar Kamala Bai against her own son, Ballera Kanna Rao. The suit was registered as O.S. No. 213 of 1983 before the Court of the Subordinate Judge at Nellore.
In the suit, the plaintiff sought a declaration that she was the owner of the property described as the “Plaint A Schedule Property.” She also sought possession of the property and recovery of past rent or damages for use and occupation.
On March 29, 1989, the Trial Court partly decreed the suit. The Subordinate Judge directed the defendant to hand over one portion of his choice out of the four portions of the suit building to the plaintiff, or alternatively, to ensure that the tenant occupying the property started paying rent directly to her.
Dissatisfied with the partial relief granted by the Trial Court, the original plaintiff filed an appeal before the High Court, numbered A.S. No. 2466 of 1989. While this appeal was pending, the original plaintiff passed away on October 8, 2002.
Following her death, the present appellant filed an application under Order 22 Rule 3 of the Code of Civil Procedure seeking to be impleaded as the substituted plaintiff. The appellant claimed that the original plaintiff had executed a Will dated March 11, 1999, in his favour, and therefore he had the right to continue the appeal.
The High Court directed an inquiry into the genuineness of the Will. As part of this inquiry, the Principal Senior Civil Judge at Nellore examined the evidence and submitted a report dated April 19, 2010, stating that the Will marked as Exhibit A.14 had been proved.
However, the High Court disagreed with this report. In the impugned judgment, the High Court held that the appellant could not be treated as the successor-in-interest of the deceased plaintiff.
The primary reason given by the High Court was that the evidence of the attesting witness, examined as PW-5, could not be relied upon or read in evidence.
Before the Supreme Court, Ms. Jaikriti S. Jadeja, learned counsel appearing for the appellant, argued that the High Court had committed a serious error by completely ignoring the evidence of PW-5.
She submitted that even if the examination-in-chief affidavit of the witness was not prepared on his instructions, the witness had clearly explained and narrated the facts during cross-examination and had proved that he had attested the Will.
On the other hand, Mr. L. Narasimha Reddy, learned Senior Counsel appearing for the respondent, supported the High Court’s decision.
He argued that the High Court was fully justified in rejecting the testimony of PW-5 because the witness himself had admitted that he did not know the contents of his own chief affidavit, which destroyed his credibility.
The Supreme Court closely examined the evidence of PW-5, whose name was Shaik Jani Basha. The Court noted that he was the only witness examined to prove the execution of the Will, as required under Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act.
The Court reproduced the specific admission made by PW-5 during his cross-examination, which stated:
“I have not given instruction for preparing the chief affidavit belongs to me. I cannot say who have instructions for preparing my chief affidavit. I do not know the contents of my chief affidavit.”
The Bench also took note of another damaging statement made by the same witness later during cross-examination, where he said:
“I do not know the contents of the will.”
Rejecting the appellant’s argument that the cross-examination could cure the defects in the testimony, the Supreme Court made the following observation:
“To prove the execution of will, one of the attesting witnesses is to be examined mandatorily, however, when the sole attesting witness examined before the Court admits that his chief affidavit i.e. the examination in chief was not recorded under his instructions nor does he know the contents of his examination in chief, the evidentiary value of his statement in cross-examination is seriously dented.”
The Court further emphasised that while an attesting witness may not be required to know the contents of the Will in detail, his credibility before the Court is extremely important. On this aspect, the Bench observed:
“Even if it is not necessary for a attesting witness to know the contents of the will, the question remains that he has to depose in Court, in no uncertain terms, that he has prepared the chief affidavit under his own instructions so that the credibility of the witness is assessed in the Court as a true attestor…”
Based on these findings, the Supreme Court held that the Will dated March 11, 1999, could not be accepted as genuine. As a result, the appellant failed to establish his legal capacity to be impleaded as the legal heir or representative of the original plaintiff.
Accordingly, the appeal was dismissed.
However, the Supreme Court clarified that this dismissal would not disturb the original judgment of the Trial Court dated March 29, 1989, which had partly decreed the suit in favour of the original plaintiff. The Court noted that since the defendant had not challenged that decree, it would continue to remain valid.
The Court also made it clear that the dismissal of the appeal would not affect the natural line of succession that opened upon the death of the original plaintiff.
The matter was heard by a Bench comprising Justice Prashant Kumar Mishra and Justice Vipul M. Pancholi.
Ms. Jaikriti S. Jadeja appeared for the appellant, while Mr. L. Narasimha Reddy, Senior Advocate, along with Mr. V. N. Raghupathy, appeared for the respondent.
Case Title:
A. Kamala Bai (D) Through LRs v. B. Kanna Rao (D) Through LRs
Civil Appeal No. 136 of 2013.
Read Judgement:
Click Here to Read More Reports On Will
