VidhiSangh

Supreme Court of India · 19/08/2025

NILIMA DAS GUPTA (DECEASED) THROUGH ITS LRS. versus ON THE DEATH OF ABDUR ROUF HIS LEGAL HEIRS & ORS.

[2025] 8 S.C.R. 740 · 2025 INSC 1037

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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

  1. 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.
  2. 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.
  3. 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

Held

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.

Judgment PDF: Supreme Court of India, [2025] 8 S.C.R. 740.