MUKESH RAISHI CHHEDA Vs. DHIRAJLAL RAISHI CHHEDA

JUDGEMENT

(1.) The cross-examination of the Plaintiff's second witness is being taken in Court. He is said to be one of the two attesting witnesses to the Will propounded. The witness has made an earlier Affidavit dated 31st December 2014. This was not filed along with the Petition but at some point later. He has thereafter filed an Affidavit of Evidence in compliance with Order 18 Rule 4 of the Code of Civil Procedure, 1908 ("CPC") on 26th February 2016.

(2.) I am not for the moment considering Mr. Sarvankar's submission that there is yet another Affidavit. He is yet to put that to the witness and I will not pre-empt his cross-examination. I am making this order because there is clearly an inconsistency or at the very least an incongruity between the two Affidavits filed by this witness in this matter. Again, undoubtedly, the Defendants will have the fullest latitude in cross-examining the witness on both these Affidavits and on the differences between them. I note only that there are obvious differences.

(3.) It seems to me that the first Affidavit of 31st December 2014, like many others in the testamentary department was filed in conformity with Form 102 under Rules 374 and 375 of the High Court (OS) Rules. I have also found some cases where the department raises an objection if the Affidavit of an attesting witness to be filed along with the Petition under those Rules does not conform exactly to this Form. This is wholly incorrect. I have previously noted that this Form is inaccurate in many ways. For example, Clause (3) speaks of both witnesses needing to be present at the same time in presence of the deceased Testator. This is not a requirement of law under Section 63 (c) of the Indian Succession Act, the substantive law. A Form in the High Court Rules cannot possibly impose a restriction not to be found in the statute. The form is at best a guideline for the minimum that needs to be stated.