The cross-examining Counsel must put their affirmative, essential, and material case to the witness so that he has an opportunity to meet it. They must also confront the witness with any contradictions so that he may explain these. A general question may suffice, though it is unnecessary. No adverse inference can be drawn against the plaintiffs or defendant No. 5, nor is it an admission if they do not simply put to the witness, line by line and sentence by sentence, that what he has said is incorrect.

G.S. Patel, J.

1. I am informed that the matter is proceeding before the Commissioner. Dr. Saraf, learned Counsel for defendant No. 5, seeks a clarification that it will not be necessary for the plaintiffs or the 5th defendant to "put their case" to the 1st defendant, who is the witness under cross-examination, and, specifically, that should they not do so, so adverse inference should be drawn against them, nor should it be seen as any sort of admission.

2. This is a question that arises repeatedly. Almost without exception, in every single trial, attempts are made to put a series of questions to a witness suggesting that every paragraph and every line of his pleading or evidence affidavit is false' or "untrue'. The answer elicited is always a denial. I believe this practice is the result of an apprehension that should such questions not be put to the witness, the party who is cross-examining the witness may be deemed to have accepted the witness's testimony.

3. This apprehension is not only unfounded, but it is based on what I believe is an incorrect appreciation of the ratio of the decision of a Division Bench of the Calcutta High Court in (A.E.G. Carapiet v. A.Y. Derderian.), A.I.R. 1961 Cal 359 Some stray observations, stripped from context, from that decision are often cited Though, in fairness, not by any of the parties before me today to suggest that it is absolutely and invariably necessary that questions such as these be put to the witness: "I put it to you that what you have said in paragraph 22 of your evidence affidavit is incorrect"; "I put it to you that the third sentence of the fourth paragraph of your second evidence affidavit is false"; "I put it to you that your entire evidence affidavit is false", and so forth. Carapiet v. Derderian mandates no such practice.

4. Carapiet v. Derderian was a probate action. The trial Court declined probate. The appeal Court reversed. Paragraphs 6 to 15 of this decision are material.

"6. The outstanding reason for which we are unable to uphold this judgment is two-fold. The learned Judge's reliance only on the evidence of Rev. Venkata Ramiah is, in our opinion, unjustified. Secondly, there are inherent infirmities of serious nature in the testimony of Rev. Venkata. Ramiah which make it entirely unsafe to rely on his uncorroborated testimony. We shall now state the reasons for this view briefly.

7. The evidence of Rev. Venkata Ramiah is that the testator was not in a sound physical and mental condition to make the will on the date he is supposed to have made it. He bases his conclusion on the ground of his visit to the testator to give him sacrament. He found him not in a fit condition to receive that sacrament. This visit he fixes on the 26th December 1955 in the morning. He says that was his first visit. On the day of the execution of the will, which was the 28th December 1955, he does not pledge his oath that he visited him but he says that he had paid two other visits whose dates he could not definitely fix. In answer to question 32, he says that he cannot remember the date of his second visit but that his third visit was on the 31st of December. Therefore, he presumed in evidence that his second visit must have been either on the 27th or the 28th or the 29th.

8. Now, this case that Rev. Venkata Ramiah visited the testator and found him in such an unfit physical and mental condition was not put to any of the doctors and nurses who were called by the propounder to prove testamentary capacity. That, in our judgment, is so serious an omission as to have led to complete miscarriage of justice in this case. The omission is so serious that, in the absence of this case being put to any of the medical witnesses and strangely enough not being put even to the pro-pounder when she was in the box giving testimony in support of the will, this Court does not know what the evidence of these persons would have been if the case, which was made by witness Rev. Venkata Ramiah, was put to