In testamentary proceedings, the court has discretion to allow examination of attesting witnesses before the party, aligning with provisions for proving the execution of a Will.

ORDER

O.A.22/2021 [Chamber Appeal by the respondents/appellants under Rule 5, Chapter-II of the Delhi High Court (original side) Rules, 2018 read with Section 151 CPC against the order dated 17th March, 2021 passed by Joint Registrar (Judicial)] in TEST.CAS. 3/2011

1. This Chamber Appeal has been preferred by the appellants being the contesting respondents against the order dated 17th March, 2021 passed by the learned Joint Registrar permitting the attesting witness to be examined prior to the petitioner.

2. Mr. Peeyoosh Kalra, learned counsel for the appellants/respondents submitted that under Order XVIII Rule 3A CPC, the party had to appear as a witness before any other witness on his behalf was examined. It was submitted that no application had been moved by the respondent/petitioner before the learned Joint Registrar to explain why he wished to examine the attesting witness before he himself was examined. It is also the contention of the learned counsel for the appellants/respondents that even the impugned order is silent as to the reason why the court was allowing the respondent/petitioner to examine the attesting witness before examining himself. Reliance has been placed on the decision of the Supreme Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 and the decision of this court in Jagdish Prasad v. State, 2015 SCC OnLine Del 14461 to contend that Section 68 of the Indian EVIDENCE ACT , 1872 deals with the mode of proof of a Will but does not set out the procedure for examination of the witnesses, which was governed by Order XVIII Rule 3A CPC. It was, therefore, submitted that the judgments in Walter D'Souza v. Anita D'Souza, 2014 SCC OnLine Bom 1671 and Harsh Vardhan Lodha v. Ajay Kumar Newar, [order dated 18th July, 2019 in TS No. 6/2004], cited by the respondent/petitioner, had no bearing on the matter.

3. Learned counsel for the respondents/appellants further submitted that under Section 295 of the Indian SUCCESSION ACT , 1925, the petition was liable to be treated as a civil suit and governed by the provisions of the CPC and therefore, Order XVIII Rule 3A would be applicable to the present matter.

4. On the other hand, Mr. Dhiraj Sachdeva, learned counsel for the respondent/petitioner, submitted that the discretion vests with the court to allow, for reasons to be recorded, another witness to be examined before the party examined himself as a witness in his case. It was further contended that the testamentary case was not strictly a suit. Secondly, the Will was to be proved only by the attesting witness and the examination of the attesting witness prior to the respondent/petitioner would not be a case where loopholes were being sought to be filled by a party subsequent to the examination of his witness. Reliance has again been placed on Walter (supra) and Harshwardhan (supra). Learned counsel for the respondent/petitioner also submitted that it was not for the first time that the attesting witness had come to the court and for almost two years, during which time the said witness had attended court, not once had the appellants/respondents raised such an objection. Furthermore, it was submitted that the Rules provide for a Chamber Appeal from the order of the Joint Registrar, but it had to be filed within fifteen days, whereas the present appeal has been filed only on 7th October, 2021.

5. Having considered the rival submissions and the cited case law, this Court concludes that the learned Joint Registrar rightly allowed the petitioner to examine the attesting witness prior to his own examination. Section 295 of the Indian SUCCESSION ACT , 1925, provides that a contested testamentary action is to be dealt with, as nearly as