Omission In Chief Examination Can Be Cured In Cross-Examination : Supreme Court

The Supreme Court on Wednesday (December 17) ruled that the omissions made in the examination-in-chief can be cured in the witness's cross-examination.

A bench of Justice Ahsanuddin Amanullah and Justice K. Vinod Chandran heard the case relating to the dispute over the attestation of the Will, where the genuineness of the Will was disputed by the testator's one of the daughter who was left out from the Will. She contended that the omission of one of the attesting witness (DW-2), in his examination-in-chief, not specifying whether he had seen other attesting witnesses signing the Will, became the incurable defect, making the Will unauthentic.

Accepting this contention, the Trial Court and Kerala High Court ruled in favour of the Respondent-daughter, holding that the will was not properly proved since the sole surviving attesting witness (DW-2) did not, in his examination-in-chief, explicitly speak about the attestation by the other witness, who had died before the trial.

Setting aside the impugned decision, the judgment authored by Justice Chandran noted that while DW-2 did not state in his examination-in-chief that the other attesting witness had signed the will, this gap was filled during cross-examination by the plaintiff's own counsel. In response to a leading question, DW-2 affirmed that all parties, the testator and both attesting witnesses, had signed on the date of execution.

“Leading questions are permitted in cross-examinations and the response elicited cannot be said to have lesser probative value, as held by the High Court.”, observed the court, adding that “If we look at the examination-in-chief alone, it cannot be said that there was proof of the other witness having put his signature in the document.”

The court noted that the missing piece of the DW-2 not stating in his examination-in-chief that the other attesting witness had signed the will, was filled in his cross-examination by the plaintiff.

“However, this missing piece was supplied in cross-examination by the plaintiff. In the cross-examination by the plaintiff, DW2 was specifically asked as to whether he had an acquaintance with Xavier, the other attesting witness…Significant is the question put by the plaintiff, to DW-2 as to whether himself and 'others' put their signatures on the will on the date on which it was written; answered in the affirmative. Hence, on the plaintiff's suggestion, DW-2 affirmed not only the signature of the testator and himself but also the other attesting witness.”, the court observed.

“We are definitely of the opinion that DW-2 spoke of the presence of the testator along with himself and the other attesting witnesses as also affirmed the signature of the testator and of both the attesting witnesses in the document.”, the court held.

The Court observed that, in the present case, the only suspicion raised with respect to the execution of the Will related to the testamentary capacity of the testator, particularly his physical condition, which had been questioned during the cross examination of DW2. However, this aspect stood unequivocally affirmed as sound. The Court reiterated that the rule of prudence requiring heightened caution while upholding a Will that completely divests legal heirs did not apply in the facts of the case.

It noted that the exclusion under the Will was limited to one child of the testator, who was the sole heir excluded, while the propounders were the siblings of the excluded child. The Court said that although a reason had been stated for such exclusion, its acceptability could not be judged by substituting the Court's own views for that of the testator. Emphasising that the Court could neither place itself in the position of the testator nor supplant his reasoning with its own notions of fairness, it held that the correct approach was to examine the matter by sitting in the armchair of the testator.

Applying this settled principle, the Court concluded that the exclusion in the present case satisfied the rule of prudence and adequately met the judicial conscience.

Accordingly, the appeal was allowed, and Will was considered to be validly proved, ousting the plaintiff-daughter.

Cause Title: K. S. Dinachandran Versus Shyla Joseph & Ors.

Citation : 2025 LiveLaw (SC) 1218

Click here to download judgment

Appearance:

For Petitioner(s) Mr. V. Chitambaresh, Sr. Adv. Mr. Mukund P. Unny, AOR Mr. Sanjay Nair S., Adv. Mr. A. Hariprasad, Sr. Adv. Mr. Bijo Mathew Joy, AOR Ms. Gifty Marium Joseph, Adv. 

For Respondent(s) Mr. P.B. Krishnan, Sr. Adv. Mr. Sarath S. Janardanan, AOR Mrs. Anila Tharakan Thomas, Adv. Mrs. Vishnupriya P. Govind, Adv. Mr. Bijo Mathew Joy, AOR