O.18 R.16 CPC | When Proof Of Will Has To Be Given, Court Must Take Separate & Lenient Consideration To Immediately Examine Witness

Order 18 Rule 16 provides the power to examine the witness immediately.

“….this Court is of the opinion that the petition under Order XVIII, Rule 16 C.P.C, in the context of proof of a 'Will', will have to receive a separate and lenient consideration, in as much as, it is imperative, going by Section 68 of the Evidence Act, as also, by Section 63 of the Indian Succession Act, to examine at least one of the attesting witnesses, in proof of the 'Will'”, Stated Justice C Jayachandran.

Further, it observed that the Court can examine the witness immediately if the witness was about to leave the jurisdiction of the Court or other sufficient cause was shown. It observed that since the suit was based on the validity of the will, it was imperative to give proof of the will by examining the surviving attesting witness who was aged and ailing.

While allowing the application for examining the witness, the Court observed thus:

“The language employed in Order XVIII, Rule 16 C.P.C. would indicate that where a witness is about to leave the jurisdiction of a court or in cases where other sufficient cause is shown to the satisfaction of the court as to why his evidence should be taken immediately, the court may take such evidence of the witness on an application preferred by the party or the witness. As already indicated, the bone of contention was on the strength of a 'Will', wherein examination of at least one among the attesting witness is a sine qua non to prove the 'Will'. There is no dispute that the surviving witness is aged, although, the respondent would contend that he is aged only 70 years.”

The petitioner has approached the Court against the order dismissing his application under Order 18 Rule 16 of CPC for examining an attesting witness for proof of will. A suit about the validity of a will was pending before the lower court. The petitioner had to prove the validity of a will and one of the attesting witnesses passed away and the other witness was aged 78 years whose evidence had to be taken immediately under Order 18 Rule 16 of CPC.

The Munsiff Court relying upon Laxmibai (Dead) thr. Lrs. and another v. Bhagwantbuva(Dead) thr. Lrs. and others (2013), argued that no proof of the health condition of the attesting witness was given. It also took note of the argument of the respondents that the attesting witness was a practising lawyer in the High Court.

On the other hand, the respondents contended that the suit was only at the stage of framing issues and that there was no immediate necessity for invoking the extra ordinary remedy for examination of the witness. It was also submitted that there was no evidence to prove that the witness was aged and ailing.

The Court found that the suit pertains to the validity of the will and the petitioner has to prove the will to defend his petition. It found that one witness had already passed away and the other witness ailing also. It observed that the will has to be proved by examining at least one of the remaining attesting witnesses who was alive and aged 78 years.

“In such circumstances, it was only just and proper that the application was allowed by the learned Munsiff, so as to ensure that the remedy available to the petitioner to prove the 'Will' is not to lost by virtue of any untoward event of the death or inability of the surviving witness to tender evidence.”, the Court stated.

It stated that the decision in Laxmibai (supra) does not make it mandate that only a person on a death bed or who was suffering from a serious ailment can only be examined under Order 18 Rule 16 CPC.

As such, the petition was allowed and the order of Munisff Court was set aside.

Counsel for the petitioner: Advocate K G Bindu

Counsel for the respondents: Advocates Sarin, Abhilash J, S Greeshma Shanmukhan

Citation: 2024 LiveLaw (Ker) 51

Case title: Rajeswari v Omana Amma

Case number: OP(C) NO. 2242 OF 2023

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