The Supreme Court of India has dismissed an appeal seeking substitution of a legal heir on the basis of a Will, holding that the document could not be considered genuine when the sole attesting witness admitted that his examination-in-chief was not prepared on his instructions and he was unaware of its contents.
A Bench comprising Justice Prashant Kumar Mishra and Justice Vipul M. Pancholi upheld the decision of the High Court, observing that if there is the “slightest doubt” about the credibility of the sole attesting witness, proving the Will becomes extremely difficult for the Court.
The apex court was hearing an appeal regarding the impleadment of a legal representative in a property dispute. The core issue was whether the appellant had successfully proved the Will of the original plaintiff to establish his authority to continue the appeal. The Supreme Court ruled that the evidentiary value of the sole attesting witness was “seriously dented” due to his admission during cross-examination that he did not know the contents of his affidavit filed as examination-in-chief.
Background of the Case
The litigation originated from a suit (O.S. No. 213 of 1983) filed by the original plaintiff, Avanthakar Kamala Bai, against her own son, Ballera Kanna Rao. The plaintiff sought a declaration of title over the “Plaint A Schedule Property,” possession of the same, and recovery of past rent or damages for use and occupation.
On March 29, 1989, the Court of Subordinate Judge, Nellore, decreed the suit in part. The Trial Court directed the defendant to deliver one portion of his choice out of the four portions of the suit building to the plaintiff or ensure the tenant attorned the rent to her.
Aggrieved by the partial decree, the original plaintiff preferred an appeal (A.S. No. 2466/1989) before the High Court. During the pendency of this appeal, the original plaintiff passed away on October 8, 2002. Consequently, the present appellant moved an application under Order 22 Rule 3 of the Code of Civil Procedure (CPC) seeking impleadment as the substituted plaintiff, claiming rights under a Will dated March 11, 1999.
The High Court directed an inquiry into the genuineness of the Will. The Principal Senior Civil Judge, Nellore, submitted a report on April 19, 2010, stating that the Will (Exhibit A.14) was proved as genuine. However, the High Court, in the impugned judgment, disagreed with the report and held that the appellant was not the successor-in-interest, primarily because the evidence of the attesting witness (PW-5) could not be read in evidence.
Arguments of the Parties
Ms. Jaikriti S. Jadeja, learned counsel for the appellant, argued that the High Court erred in ignoring the entire evidence of PW-5. She submitted that even if the examination-in-chief was not recorded under the witness’s instructions, he had narrated the contents of the affidavit in his cross-examination and had proved the attestation of the Will.
Per contra, Mr. L. Narasimha Reddy, learned Senior Counsel for the respondent, contended that the High Court was entirely justified. He argued that the evidence of PW-5 could not be relied upon as the witness expressly admitted to not knowing the contents of his chief affidavit.
Court’s Analysis and Observations
The Supreme Court scrutinized the evidence of PW-5 (Shaik Jani Basha), noting that he was the only witness examined to prove the execution of the Will in terms of 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:
“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 Court further noted that in a subsequent part of the cross-examination, the witness stated: “I do not know the contents of the will.”
Refusing to accept the appellant’s contention that the cross-examination saved the testimony, the Bench observed:
“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 emphasized that credibility is paramount when assessing a true attestor:
“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…”
Decision
The Supreme Court concluded that the Will dated March 11, 1999, could not be found genuine based on such evidence. Consequently, the appellant did not have the capacity to be impleaded as the legal heir of the original plaintiff.
The appeal was dismissed.
However, the Court clarified that this dismissal does not set aside the original Trial Court judgment dated March 29, 1989, which had partly decreed the suit in favor of the plaintiff, as the defendant had not appealed against it. The Court further noted that the dismissal “will not affect the natural line of succession which opens on account of the death of original plaintiff.”
Case Details
Case Title: A. Kamala Bai (D) Th: Lrs. v. B. Kanna Rao (D) Thr. Lrs.
Case No: Civil Appeal No(s). 136/2013
Coram: Justice Prashant Kumar Mishra and Justice Vipul M. Pancholi
Counsel for Appellant: Ms. Jaikriti S. Jadeja, AOR
Counsel for Respondent: Mr. L. Narasimha Reddy, Sr. Adv; Mr. V. N. Raghupathy, AOR
