The Supreme Court on Wednesday (December 17) held that omissions in a witness’s examination-in-chief are not necessarily fatal and can be cured during cross-examination.

A Bench comprising Justice Ahsanuddin Amanullah and Justice K. Vinod Chandran was dealing with a dispute concerning the proof of a Will, where its validity was questioned by one of the testator’s daughters who had been excluded from the testament. The daughter contended that the Will was not duly proved because one of the attesting witnesses (DW-2), in his examination-in-chief, failed to state that he had seen the other attesting witness sign the Will. According to her, this omission amounted to an incurable defect.

Accepting this argument, both the Trial Court and the Kerala High Court ruled in favour of the respondent-daughter. They held that the Will was not properly proved, as the sole surviving attesting witness did not, in his examination-in-chief, explicitly depose about the attestation by the other witness, who had died prior to trial.

Setting aside these findings, the Supreme Court, in a judgment authored by Justice K. Vinod Chandran, observed that although DW-2 did not expressly mention in his examination-in-chief that the other attesting witness had signed the Will, this omission was subsequently cured during cross-examination conducted by the plaintiff’s own counsel. In response to a leading question, DW-2 clearly affirmed that the testator and both attesting witnesses had signed the Will on the date of its execution.

“Leading questions are permissible in cross-examination, and the answers elicited cannot be said to carry lesser probative value, as held by the High Court,” the Court observed. It further noted that if the examination-in-chief alone was considered, it could not be said that the signature of the other attesting witness was proved. However, that deficiency stood rectified during cross-examination.

The Court elaborated that the missing link—DW-2 not stating in his chief examination that the other attesting witness had signed the Will—was supplied in cross-examination by the plaintiff herself.

“In the cross-examination by the plaintiff, DW-2 was specifically questioned regarding his acquaintance with Xavier, the other attesting witness. Significantly, DW-2 was asked whether he and ‘others’ had put their signatures on the Will on the date it was written, which he answered in the affirmative. Thus, at the plaintiff’s own suggestion, DW-2 affirmed not only the signatures of the testator and himself but also that of the other attesting witness,” the Court observed.

The Bench concluded that DW-2 had sufficiently deposed about the presence of the testator and both attesting witnesses at the time of execution and had affirmed the signatures of all concerned on the document.

The Court further noted that the only suspicion raised regarding the execution of the Will pertained to the testamentary capacity of the testator, particularly his physical condition, which was examined during the cross-examination of DW-2. This aspect, however, stood clearly established as sound. The Court reiterated that the heightened rule of prudence applicable in cases where a Will completely disinherits legal heirs did not apply in the present facts.

It was noted that the Will excluded only one child of the testator, while the beneficiaries were the siblings of the excluded daughter. Although reasons for such exclusion were recorded in the Will, the Court held that their adequacy could not be assessed by substituting the Court’s own views for that of the testator. Emphasising that courts cannot step into the shoes of the testator or supplant his reasoning with their own sense of fairness, the Bench reiterated that the correct approach is to examine the matter by sitting in the “armchair of the testator.”

Applying these settled principles, the Court held that the exclusion under the Will satisfied the rule of prudence and met the judicial conscience.

Accordingly, the appeal was allowed, the Will was held to have been validly proved, and the claim of the plaintiff-daughter was rejected.

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