Summary
In a second appeal the High Court had discarded the entire evidence of DW-5, the son who deposed in place of his mother (defendant no. 1 and counter-claimant), reading Section 120 of the Evidence Act as barring anyone other than a party or the party's spouse from deposing on a party's behalf. The Supreme Court held that Section 120 declares competence and creates no embargo, that under Section 118 all persons are competent witnesses, and that DW-5's evidence could at most be discounted as to facts within his mother's personal knowledge, not eschewed in toto. The matter was remanded, also because the High Court never addressed the substantial question of law it had framed.
Issues
- Whether Section 120 of the Indian Evidence Act, 1872 renders the son of a party an incompetent witness to depose on behalf of his mother in a civil suit.
- Whether the High Court could allow a second appeal without referring to or deciding the substantial question of law formulated when the appeal was admitted.
- Whether the High Court could reverse the decree on the counter-claim by eschewing DW-5's evidence without considering the other reasons given by the first appellate court.
Provisions considered
- Section 118, Indian Evidence Act, 1872All persons are competent to testify unless the Court considers them unable to understand the questions or give rational answers by reason of tender years, extreme old age, disease or a similar cause. Competency is the rule and incompetency the exception, and competency is a condition precedent to the admissibility and credibility of a witness's evidence. (¶¶ 18, 19, 21)
- Section 120, Indian Evidence Act, 1872Section 120 declares the parties to a civil suit and their husbands or wives to be competent witnesses, and the spouse of an accused to be a competent witness in criminal proceedings, thereby removing the old common-law disability founded on interest. It is in substance superfluous given Section 118 and does not operate as an embargo rendering a party's son incompetent to depose; the High Court's contrary reading was held incorrect. (¶¶ 17, 20, 22, 23, 24, 26, 27)
- Section 100, Code of Civil Procedure, 1908A second appeal lies on a substantial question of law. The High Court had formulated such a question when admitting the appeal but made no reference to it in its judgment; the Court disapproved this and directed that on remand the High Court formulate the substantial question of law in its judgment and decide it in accordance with law. (¶¶ 10, 16, 29)
Held
- The manner in which the second appeal was decided was unsatisfactory: although a substantial question of law had been formulated at the time of admission, the High Court's judgment made no reference to it at all. (¶ 16)
- Under Section 118 of the Evidence Act all persons, save those excepted, are competent to give evidence; competency is the rule and incompetency the exception. Section 120 merely declares that parties and their spouses are competent witnesses in civil proceedings (and the spouse of the accused in criminal proceedings), removing the former common-law disability of parties and spouses; it does not disqualify anyone. (¶¶ 19, 21, 22, 23, 24)
- The High Court's reasoning that, because only husband and wife figure in Section 120, a son cannot depose on behalf of his mother, is incorrect. By virtue of Section 120 alone, DW-5 cannot be termed an incompetent witness, and reliance on Vidhyadhar v. Manikrao and Man Kaur v. Hartar Singh Sangha for that proposition was misconceived. (¶¶ 17, 26)
- At the most, DW-5 could not have deposed to facts within the personal knowledge of his mother, defendant no. 1, and his evidence must be appreciated accordingly; it cannot be discarded in toto on the strength of Section 120. (¶ 27)
- Even on the footing that DW-5's oral evidence was to be eschewed, the High Court was bound to consider the other parts of the first appellate court's reasoning for allowing the counter-claim before reversing that decree. (¶ 28)
Result
Appeal disposed of; High Court's judgment in RSA No. 35 of 2013 set aside; matter remanded to the High Court for fresh consideration of the second appeal, with a direction to formulate the substantial question of law in its judgment and decide it in accordance with law, keeping in mind the Court's observations; pending applications disposed of.