Kerala HC Allows Early Witness Examination Under O.XVIII R.16 CPC for Aged Attesting Witness in Will Dispute

Kerala HC Allows Early Witness Examination for Aged Attesting Witness in Property Dispute

Ernakulam: In a significant ruling emphasizing the importance of statutory compliance in proving testamentary documents, the High Court of Kerala has set aside a lower court order and allowed an application for the early examination of an aged attesting witness to a Will in a partition suit. The court underscored that the age of the sole surviving attesting witness constitutes "sufficient cause" under Order XVIII, Rule 16 of the Code of Civil Procedure (CPC) to record their evidence immediately, preventing potential loss of crucial testimony.

The judgment was delivered by the Honourable Mr. Justice C. Jayachandran in OP(C) No. 2242 of 2023, which arose from an order in O.S. No. 513/2021 before the Principal Munsiff Court, Nedumangad.

Case Background

The original suit is a partition action among family members claiming rights over the property of the deceased Bhaskara Pillai . The petitioner, who is the 3rd defendant in the partition suit, entered appearance claiming rights under a Will purportedly executed by the deceased. Two Wills were mentioned, one favouring the petitioner and another her son. Crucially, each Will had two attesting witnesses, one of whom has since passed away.

To prove the validity of the Will, which is essential for her defence in the partition suit, the petitioner filed an application under Order XVIII, Rule 16 CPC before the Munsiff Court. This provision allows for the immediate examination of a witness if they are about to leave the court's jurisdiction or if there is "other sufficient cause". The petitioner contended that the sole surviving attesting witness was aged 78 and ailing, presenting a risk that his evidence might be lost if not recorded promptly.

Lower Court's Dismissal

The Principal Munsiff Court dismissed the application, relying on the Supreme Court judgment in Laxmibai (Dead) thr. Lrs. and another v. Bhagwantbuva(Dead) thr. Lrs. and others [2013 (4) SCC 97]. The Munsiff noted that the petitioner had not adduced evidence regarding the witness's health condition and also took into account the respondents' submission that the witness was a healthy practicing lawyer in the High Court.

Arguments Before the High Court

Before the High Court, the petitioner's counsel argued that the Laxmibai decision was distinguishable. They contended that the Supreme Court's observations in that case were in the context of an appellate court drawing adverse inference for not using Order XVIII, Rule 16, and did not lay down a strict mandate that only persons on their deathbed or suffering from serious ailments could be examined early. The core issue here, proving a Will, mandates examining an attesting witness under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act, making the age and potential infirmity of the sole surviving witness a compelling "sufficient cause".

Conversely, the respondents opposed the plea, asserting there was no material to prove the witness was aged or ailing. They maintained he was a healthy practicing advocate and argued that the suit was only at the stage of framing issues, thus lacking the urgency required for invoking Order XVIII, Rule 16.

High Court's Analysis and Decision

Justice C. Jayachandran , after hearing both sides, found merit in the petitioner's submissions. The court highlighted that proving the Will is the "primary aspect" for the petitioner's defence in the partition suit. The statutory requirement under Section 68 of the Evidence Act to examine at least one attesting witness for proving a Will was deemed "imperative".

The court acknowledged that while a Will can be proved by other means if both witnesses are unavailable, the "ideal course" is to follow the statutory mandate by examining a living attesting witness. The court noted that even the respondents conceded the surviving witness was aged (though they claimed 70, while the petitioner claimed 78).

Distinguishing the Laxmibai case, the High Court clarified that the Supreme Court there was commenting on the inappropriateness of drawing an adverse inference in a specific factual scenario where an elderly but hale and hearty person was not examined early. That did not establish a principle that only deathbed or seriously ailing witnesses could be examined under Order XVIII, Rule 16. The provision's language allows for examination upon "other sufficient cause," which, in the court's view, squarely covers the situation of an aged, sole surviving attesting witness whose testimony is legally mandatory to prove a crucial document like a Will.

The court concluded that it was "just and proper" to allow the application to ensure the petitioner's remedy to prove the Will is not jeopardized by the potential death or inability of the surviving witness to give evidence later.

Consequently, the High Court set aside the Munsiff Court's order and allowed the application under Order XVIII, Rule 16 CPC. The Principal Munsiff Court, Nedumangad, has been directed to record the evidence of the witness without further delay and proceed with the suit according to law.

This ruling clarifies that the potential loss of legally mandated testimony due to the advanced age of a crucial witness can constitute "sufficient cause" for early examination under Order XVIII, Rule 16 CPC, particularly in cases involving proof of Wills where attestation is a statutory requirement.