LexNILIMA DAS GUPTA (DECEASED) THROUGH ITS LRS. versus ON THE DEATH OF ABDUR ROUF HIS LEGAL HEIRS & ORS.
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[2025] 8 S.C.R. 740 : 2025 INSC 1037 Nilima Das Gupta (Deceased) Through Its Lrs. v. On The Death of Abdur Rouf His Legal Heirs & Ors. (Civil Appeal No. 11074 of 2025) 19 August 2025 [J.B. Pardiwala and K.V. Viswanathan, JJ.] Issue for Consideration Issue arose as regards to whether D.W.5-son could have entered the witness box and deposed on behalf of his mother-defendant No.1. Headnotes† Evidence Act, 1872 – ss.118, 120 – Who may testify – Competent witnesses in all civil proceedings – Appeal preferred to High Court u/s.100 CPC for pending title suit – Substantial question of law involved whether DW-5 (son) could have entered the witness box and deposed on behalf of his mother/Original Defendant No.1 – High Court eschewed from consideration entire oral evidence of the son holding that the son of the Defendant No.1 could not be said to be a competent witness to enter the box and depose, and allowed the second appeal – Correctness: Held: By virtue of s.120 alone the D.W.5 cannot be termed as an incompetent witness – Line of reasoning assigned by the High Court gives an impression that since son and mother do not figure in s.120 and only husband and wife figures, the son cannot depose on behalf of his mother, which is not correct – Defendant No.1 did not enter the witness box, however, D.W.5 her son entered the box and deposed – At the most, it could be said that D.W.5 could not have deposed about the facts which may be within the personal knowledge of his mother-Defendant No.1 – If that be so then the evidence of D.W.5 has to be appreciated accordingly – However, the same cannot be discarded in toto relying on s.120 – High Court has not taken into consideration the other parts of the reasoning assigned by the First Appellate Court – While allowing the counter- claim of the appellants, at least the other parts should have been taken into consideration – Thus, impugned judgment and order [2025] 8 S.C.R. 741 Nilima Das Gupta (Deceased) Through its Lrs. v. On The Death of Abdur Rouf His Legal Heirs & Ors. passed by the High Court set aside – Matter remanded to High Court. [Paras 26-29] Evidence Act, 1872 – s.120 – Scope and purport of – Maxim, Nemo in propria causa testis esse debet in the context of Evidence Act, 1872 – Discussed. [Paras 23, 24] Case Law Cited Man Kaur v. Hartar Singh Sangha [2010] 12 SCR 515 : (2010) 10 SCC 512; Vidhyadhar v. Manikrao [1999] 1 SCR 1168 : (1999) 3 SCC 573 – referred to. John Howe v. Charlotte Howe, 30 M 466; 21 IC 645 – referred to. List of Acts Code of Civil Procedure, 1908; Evidence Act, 1872; Evidence Act, 1843; Evidence Act, 1851; Evidence Act, 1853; Civil Evidence Act, 1968. (U.K.) List of Keywords Competent to depose; Deposition on behalf of mother; Disability to testify; Nemo in propria causa testis esse debet; No one can be a witness in his own cause; Substantial question of law; Competent witnesses. Case Arising From CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11074 of 2025 From the Judgment and Order dated 15.03.2021 of the Gauhati High Court in RSA No. 35 of 2013 Appearances for Parties Advs. for the Appellant: B.K. Sharma, Sr. Adv., Kaushik Choudhury, Jyotirmoy Chatterjee, Saksham Garg, Nilim Sharma, Ms. Tapasya Kakaty, Sumant Datt. Advs. for the Respondents: Durga Dutt, Santosh Kumar Yadav, Rajeev Kumar, Pradeep Yadav, Ms. Ravleen Kaur Kalsi, Amrander Chauby, Mayank Kumar, Pranab Prakash. 742 [2025] 8 S.C.R. Supreme Court Reports Judgment / Order of the Supreme Court Order 1. Leave granted. 2. This appeal arises from the Judgment and Order passed by the High Court dated 15-3-2021 in the Regular Second Appeal No.35/2013 by which the Second Appeal filed by the original defendant No.3(Respondent Nos.1 to 4 – herein) (the legal heirs of Defendant No.3) came to be allowed, thereby setting aside the Judgment and Order passed by the First Appellate Court in the First appeal No.57/2011 allowing the counter-claim of the appellant – herein (original Defendant No.1). 3. It appears from the materials on record that the original plaintiff (Respondent No.6 – herein) instituted Title Suit No.75/2017 and prayed for the following reliefs:- “(a) for a declaration that plaintiff is the owner of 1st schedule land and 3rd schedule land by purchase having land holder right, maliki right over the second schedule house. (b) for granting permanent injunction restraining the defendant not to dispossess the above named plaintiff from his
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