IMPORTANT POINT
Cross-examination of a co-defendant can be permitted only when the court is satisfied that the co-defendant in his examination has taken a stand adverse to that taken by the defendant.

C.K. Prasad, C.J. —This Special Appeal has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 by defendant No.1/2 of Testamentary Suit No.4 of 1985 feeling aggrieved by the order dated 30th January, 2009 by which his plea to cross-examine defendant No.4 was rejected by a learned Judge of this Court.

2. The dispute in the said Testamentary Suit is about the estate of the deceased Rani Rewati Devi widow of Ravi Pratap Narain Singh. It is said that an unregistered Will dated 14th April, 1984 was executed by Rani Rewati Devi under which a trust was created in which the trustees are defendant Nos.14 to 23 in the said Suit. The testator died issueless on 27th May,1984. Jai Bharat Mani Aacharaya Dixit, executor of the said Will, filed Testamentary Case No.10 of 1984 for grant of Letters of Administration in respect of the estate of the deceased Rani Rewati Devi. Notices were issued and since objections were filed, this Testamentary Case was converted into Testamentary Suit No.4 of 1985. In this Suit Kunwar Anirudha Pratap Narain Singh was arrayed as defendant No.1 while Anil Pratap Narain Singh was arrayed as defendant No.4. Defendant No.1 filed his written statement and sated that the deceased testator did not have any share in the property of Padrauna Raj and so could not execute the Will in respect of the demised property. Identical stand was taken by defendant No.4. After the death, of Kunwar Anirudha Pratap Narain Singh, the appellant was substituted as defendant No.1/2. The executor of the Will died on 1st May, 1989 during the pendency of the Testamentary Suit and the Administrator General, Uttar Pradesh was substituted as the plaintiff.

3. The appellant Smt. Annapurna Devi defendant No.1/2 was examined as DW1 on 21st November, 2008. She was cross-examined by the plaintiff on 15th December, 2008. Subsequently defendant No.4 Kunwar Anil Pratap Narain Singh was examined as DW2. He was cross-examined by the plaintiff on 30th January, 2009. After the completion of the cross-examination of DW2, the appellant, a co-defendant, sought permission of the Court to cross-examine DW2. This plea was rejected by the learned Judge by the order dated 30th January, 2009 which is as follows:—

“Evidence of DW2, Shri Anil Pratap Narain Singh s/o. Shri Balbhadra Pratap Narain Singh has been closed.

Shri Manish Dev Singh, Advocate, wanted to cross-examine the witness. The said prayer has been opposed by Shri P.K. Pandey, Advocate. He submitted that the witness has been cross-examined by the plaintiff and a defendant cannot be permitted to cross-examine the witness produced by another defendant. There is no question to cross-examine the witness.

I find substance in the objection raised by Shri P.K. Pandey, Advocate. Shri Manish Dev Singh, Advocate, is not permitted to cross-examine the witness, of DW2 at this stage.”

4. It is the contention of the appellant that as DW2 in his cross-examination had taken a stand contrary to the stand taken by the appellant and indirectly supported the case of the plaintiff, the appellant was justified in seeking permission of the Court to cross-examine DW2.

5. The learned Administrator General, Uttar Pradesh has, however, submitted that a defendant can be permitted to cross-examine a co-defendant but such a defendant must demonstrate that the stand of the co-defendant is adverse to his stand.

6. There is no difficulty in accepting the broad proposition that a defendant can be permitted to cross examine his co-defendant. This is what has been pointed out by Sarkar in his book ‘Law of Evidence’ (Volume II, Sixteenth Edition 2007 at Page 2351) and the relevant portion is as follows:—

“Sections 137 and 138 of the Evidence Act do not specifically refer to cross- examination of co-defendant’s witnesses. But the Court have to adopt a golden rule that no evidence shall be received against a co-defendant or co-accused who had no opportunity of testing it by cross-examination; as it wou