The Supreme Court of India, in a significant order, has set aside a High Court judgment that had discarded the testimony of a son deposing on behalf of his mother in a civil suit. A bench comprising Justices J.B. Pardiwala and K.V. Viswanathan held that the High Court’s understanding of Section 120 of the Indian Evidence Act, 1872, was incorrect. The Court ruled that while a son may not be able to depose on facts within the personal knowledge of his mother, his entire testimony cannot be eschewed from consideration on this ground. The matter was remanded to the High Court for fresh consideration.
Background of the Case
The dispute originated from a Title Suit (No. 75/2017) where the original plaintiff sought a declaration of ownership over certain lands and houses. In this suit, the appellant (original Defendant No. 1, Nilima Das Gupta) and the respondents (legal heirs of original Defendant No. 3) both filed counter-claims.
The Trial Court dismissed the suit and also dismissed the counter-claim filed by the appellant, while allowing the counter-claim of Defendant No. 3.
Aggrieved, the appellant preferred a First Appeal (No. 57/2010). The First Appellate Court allowed the appeal and decreed the appellant’s counter-claim, which sought a declaration of right, title, and interest over the disputed land, cancellation of a sale deed, and recovery of possession.
This decision was challenged by the respondents before the High Court in a Regular Second Appeal (No. 35/2013).
High Court’s Decision
The High Court allowed the Second Appeal, setting aside the order of the First Appellate Court. The High Court’s decision was based on the substantial question of law it formulated: “Whether the DW-5 is competent to depose on behalf of the DW-1, who has filed the cross-objection and, if not, whether the Court below was justified in decreeing the counter claim filed by the defendant No.1 based on his evidence?”
The High Court concluded that Shri Gautam Dasgupta (D.W.5), the son of the original Defendant No. 1, could not have entered the witness box to depose on her behalf. The High Court relied on Section 120 of the Indian Evidence Act and cited the Supreme Court’s decisions in Vidhyadhar v. Manikrao (1999) and Man Kaur v. Hartar Singh Sangha (2010).
The High Court observed, “DW 5 is entitled to appear as an independent witness or attorney but because of the embargo of Section 120 of the Evidence Act, he is not entitled to step into the shoes of his mother. He cannot adduce evidence on behalf of his mother.” Based on this reasoning, the High Court eschewed the entire oral evidence of D.W.5 and dismissed the appellant’s counter-claim.
Supreme Court’s Analysis and Ruling
The Supreme Court expressed its disapproval of the High Court’s approach, stating, “We are not happy with the manner in which the High Court decided the Second Appeal.” The bench noted that the High Court failed to even reference the substantial question of law it had formulated in its final judgment.
The Apex Court clarified the scope of Sections 118 and 120 of the Indian Evidence Act. It explained that Section 118 lays down the general rule that “All persons shall be competent to testify” unless prevented by specific disabilities. Competency is the rule, and incompetency is the exception.
Section 120, the Court explained, specifically makes parties to a civil suit and their spouses competent witnesses, thereby removing an old common law disability where interested parties were considered incompetent to testify. The Court observed that this section was, strictly speaking, superfluous given the general provision in Section 118.
The Supreme Court found the High Court’s interpretation of the law to be flawed. The judgment stated:
“The understanding of the High Court as regards Section 120 of the Indian Evidence Act is also not correct. Over and above the reliance on the two decisions of this Court is also misconceived.”
Critiquing the High Court’s reasoning, the Supreme Court observed:
“the line of reasoning assigned by the High Court gives us an impression that since son and mother do not figure in Section 120 of the Indian Evidence Act and only husband and wife figures, the son cannot depose on behalf of his mother. That understanding is not correct.”
The Court clarified the correct legal position regarding the son’s (D.W.5) testimony. It held that his evidence could not be completely discarded simply because he was deposing for his mother. The judgment clarified:
“At the most, it could be said that D.W.5 could not have deposed about the facts which may be within the personal knowledge of his mother i.e., Defendant No. 1. If that be so then the evidence of D.W.5 has to be appreciated accordingly. However, the same cannot be discarded in toto relying on Section 120 of the Indian Evidence Act.”
Concluding that the matter required fresh consideration, the Supreme Court set aside the impugned judgment and remanded the Second Appeal to the High Court. It directed the High Court to formulate the substantial question of law in its judgment and decide the appeal in accordance with the law, keeping the observations made in its order in mind.
