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

         [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 bonafide land and house stated in the schedule
            1 and 2 of the plaint and not to change nature and feature
            of the suit land and not to create any document in respect
            of the suit land.
            (c) for a declaration that the so called registered sale deed
            no. 477, dated 19.12.1965 and 4273 dated 25.11.1978
            of the S.R. Office, Bhangabazar, Karimganj (Assam) are
            illegal, collusive without any transaction and hand over
            initio void and or took over possession, ab liable to be
            declared as cancelled and that a copy of the judgment
            and decree of this suit be sent to the office of the Sub
            Registrar, Bhangabazar to note in the volume book and
            other relevant records that the said so called deeds /
            documents as cancelled.
            (d) for cost of the suit that plaintiff is entitled to his named
            in respect of suit land in the settlement record.
[2025] 8 S.C.R.                                                             743

           Nilima Das Gupta (Deceased) Through its Lrs. v.
          On The Death of Abdur Rouf His Legal Heirs & Ors.

           (f) for any other relief or reliefs to which the plaintiff deem
           fit and entitled.”
4.   In the Title Suit referred to above, the appellant – herein (original
     Defendant No.1) filed counter-claim.
5.   One another Counter-Claim was filed by the original Defendant No.3
     (Respondent Nos.1 to 4 herein).
6.   The Suit came to be dismissed.
7.   The Counter-Claim filed by the appellant – herein also came to be
     dismissed, whereas the counter-claim filed by Defendant No.3 came
     to be allowed.
8.   Being dissatisfied with the Judgment and Order passed by the Trial
     Court, the appellant – herein preferred First Appeal No.57/2010
     (Annexure 12). The First Appeal came to be allowed and the counter-
     claim of the appellant – herein was decreed.
9.   In the counter-claim the appellant - herein had prayed for the
     following reliefs:-
           “(i) For declaration that counter claimant / defendant has
           her right, title and interest over the land described in
           Schedule I & II below of the Counter Claim by purchase.
           (ii) For cancellation of deed no. 160 dt. 24-01- 2007 the
           same as ab initio void, in-operative, sham and sending of
           this cancellation order to Sub - Registrar, Bhanga Bazar
           for nothing the same in cancelled book and volume.
           (iii) For declaration that if any deed or deeds in respect
           of dag no. 83 is found from the possessing of the plaintiff
           showing his right title over the land under dag no. 83 same
           shall be treated as in-operative, ab-initio void
           cancelled and sending of this cancellation order to the
           concerned book and volumes of concerned Sub – Registrar.
           (iv) For handing over the khas possession of the land in
           favour of counter claimant / defendant no. 1 by the plaintiff
           within the time fixed by the court failing which the counter
           claimant / defendant no. 1 is entitle to same through court.
           (v) For perpetual injunction restraining the plaintiff from
           interfering in peaceful possession of the land described
744                                                         [2025] 8 S.C.R.

                         Supreme Court Reports


          in schedule I & II below after getting recovery of khas
          possession of the same by the counter claimant / defendant
          no. 1 and restraining the plaintiff to alienate / transfer the
          land describing in schedule I & II below to same other
          person or persons,
          (vi) Any other further relief or reliefs the learned court
          deem fit and proper.
          (vii) For cost of counter claim and for which your counter
          claimant / defendant shall ever pray.”
10. Being dissatisfied with the Judgment and Order passed by the First
    Appellate Court, the Respondent No.1 – herein preferred Second
    Appeal before the High Court under Section 100 of the Civil Procedure
    Code. It appears that vide Order dated 20-6-2013 while admitting
    the Second Appeal, the following substantial question of law came
    to be formulated:-
          “Whether the DW-5 is competent to depose on behalf of
          the DW-1, who has filed the cross-objection and, if not,
          whether the Court below was justified in decreeing the
          counter claim filed by the defendant No.1 based on his
          evidence?”
11. The High Court while allowing the Second Appeal took the view that
    Shri Gautam Dasgupta (D.W.5 i.e. the Appellant No.4 – before us)
    could not have entered the witness box and deposed on behalf of
    his mother – (Original Defendant No.1).
12. The High Court relied upon Section 120 of the Indian Evidence Act,
    1872. The High Court relied upon two decisions of this Court one in
    the case of “Man Kaur v. Hartar Singh Sangha”, reported in (2010)
    10 SCC 512 and another in the case of “Vidhyadhar v. Manikrao”
    reported in (1999) 3 SCC 573.
13. Relying on Section 120 of the Indian Evidence Act and the two
    decisions of this Court, the entire oral evidence of D.W. 5 came to
    be eschewed from consideration. Having taken the view that the oral
    evidence of D.W. 5 could not have been relied upon, the Second
    appeal came to be allowed and the counter-claim was ordered to
    be dismissed.
14. In such circumstances, referred to above, the appellants are here
    before this Court with the present appeal.
[2025] 8 S.C.R.                                                             745

           Nilima Das Gupta (Deceased) Through its Lrs. v.
          On The Death of Abdur Rouf His Legal Heirs & Ors.

15. We heard Mr. Kaushik Choudhury, the learned counsel appearing for
    the appellants and Mr. Durga Dutt, the learned counsel appearing
    for the Respondent Nos.1 to 4.
16. We are not happy with the manner in which the High Court decided
    the Second Appeal. Although the substantial question of law was
    formulated at the relevant time when the Second Appeal came to
    be admitted, yet we do not find any reference of the said substantial
    question of law in the entire impugned judgment of the High Court.
17. The understanding of the High Court as regards Section 120 of the
    Indian Evidence Act is also not correct. Over and above the reliance
    on the two decisions of this Court is also misconceived.
18. We may explain the principle and scope of Section 120 of the Indian
    Evidence Act. However, before proceeding to explain Section 120,
    we must highlight Section 118 of the Indian Evidence Act. Section
    118 of the Evidence Act reads thus:
           “118. Who may testify.-All persons shall be competent to
           testify unless the Court considers that they are prevented
           from understanding the questions put to them, or from
           giving rational answers to those questions, by tender years,
           extreme old age, disease, whether of body or mind, or any
           other cause of the same kind.
           Explanation. -- A lunatic is not incompetent to testify, unless
           he is prevented by his lunacy from understanding the
           questions put to him and giving rational answers to them.”
19. Thus, under Section 118 all persons are competent to testify, unless
    the court considers that by reason of tender years, extreme old
    age, disease, or infirmity, they are incapable of understanding the
    questions put to them and of giving rational answers. Competency
    of a person to testify as a witness is a condition precedent to the
    admissibility and credibility of his evidence.
20. Section 120 of the Indian Evidence Act reads thus:
           “120. Parties to civil suit, and their wives or husbands.
           Husband or wife of person under criminal trial.-In all civil
           proceedings the parties to the suit, and the husband or
           wife of any party to the suit, shall be competent witnesses.
746                                                      [2025] 8 S.C.R.

                        Supreme Court Reports


          In criminal proceedings against any person, the husband
          or wife of such person, respectively, shall be a competent
          witness.”
21. Under Section 118 referred to above, all persons except those
    excepted therein are competent to give evidence. Competency is
    the rule and incompetency the exception.
22. Section 120 declares that the parties to the suit and their husbands
    or wives are competent witnesses in all civil proceedings and that
    in criminal proceedings against any person, the husband or wife of
    such person is a competent witness, whether for or against.
23. Formerly under the rule which existed at common law, parties to the
    suit were incompetent witnesses on the ground of interest – Nemo
    in propria causa testis esse debet (No one can be a witness in
    his own cause). Husbands or wives were also incompetent to give
    evidence either for or against one another. These disabilities were
    swept away by the Evidence Act, 1843, the Evidence Act, 1851 and
    the Evidence Act, 1853. The last Act created a privilege in respect
    of communication between husband and wife during marriage (See:
    Section 122). In U.K. Section 16 Civil Evidence Act 1968 goes a
    step further and does away with the privilege in civil proceedings.
    Strictly speaking, this section is superfluous as these persons are
    competent witnesses under the general provision in Section 118.
24. In England, up to about the middle of the 19th century, parties to a
    civil proceeding were, in accordance with the maxim of the civil law,
    nemo in propria causa testis er se debt, deemed to be incompetent to
    testify. The rule was founded solely on the interest which the parties
    to the suit were supposed to have in the event of it. The husband and
    wives of the parties also came within the rule as husband and wife
    were considered in law as one and the same person. This disability
    to testify was, however, gradually removed by legislation and the
    present rule may be stated to be that in civil proceedings the parties
    and their husbands and wives are competent witnesses. This rule
    has been adopted in Section 120 of the Indian Evidence Act, with the
    result that given the requisite degree of intelligence to understand
    the questions asked and to answer them in a rational manner, a
    party, or the husband or wife of such party, is a competent witness.
    A husband is a competent witness for all purposes, and whatever
[2025] 8 S.C.R.                                                            747

           Nilima Das Gupta (Deceased) Through its Lrs. v.
          On The Death of Abdur Rouf His Legal Heirs & Ors.

     may be the law in England, he can be examined on the question
     of non-access to his wife, with a view to determine the legitimacy
     of a child born to his wife. (See: John Howe v. Charlotte Howe, 30
     M 466; 21 IC 645.)
25. Having explained the scope and purport of Section 120 of the Indian
    Evidence Act, as above, we should now look into the understanding of
    the High Court as regards why D.W.5, i.e., the son of the Defendant
    No. 1 could not be said to be a competent witness to enter the box
    and depose. The High Court has observed as under:
           “8. The Court of the Munsiff dismissed the counter claim
           of Nilima Das Gupta because she did not appear before
           the Court and offered herself for cross-examination. In
           her place, her son deposed on her behalf. The Trial Court
           opined that since she failed to offer herself for cross-
           examination, it could be presumed that she had set up a
           false case. The aforesaid view of the Munsiff was based
           upon a ratio laid down by the Supreme Court in the case
           of Vidhyadhar v Manik Rao reported in (1999) 3 SCC
           573. The Trial Court did not rely upon the evidence of the
           son of Nilima Das Gupta who examined himself as D.W.
           5. No power of Attorney was given to DW 5 to depose
           on behalf of Nilima Das Gupta. This time, the Trial Court
           relied upon the decision of the Supreme Court that was
           rendered in Janki Vashdeo Bhojwani v. Indusind Bank
           Limited reported in (2005) 2 SCC 217, which held that
           since there is no Power of Attorney, the DW-5 is not entitled
           to give evidence on behalf of his mother. The appellate
           Court simply held that D.W. 5 is entitled to give evidence
           on behalf of his mother.
           9. I have given my anxious consideration to the submissions
           made by the learned counsels for the parties. Here at this
           stage, the Section 120 of the Indian Evidence Act maybe
           visited. It reads has under:
                “120. Parties to civil suit, and their wives or husbands.
                Husband or wife of person under criminal trial.—In
                all civil proceedings the parties to the suit, and the
                husband or wife of any party to the suit, shall be
748                                                       [2025] 8 S.C.R.

                        Supreme Court Reports


               competent witnesses. In criminal proceedings against
               any person, the husband or wife of such person,
               respectively, shall be a competent witness.”
          10. In the case of Vidhyadhar (supra), in paragraph-17,
          the Supreme Court has held has under:
               “17. the son of the landlady is not a person covered
               under the aforesaid provision and as such is not a
               competent to depose on her behalf.”
          11. This view has been followed by the Supreme court in
          the case of Man Kaur (Dead) by LRS reported in (2010)
          10 SCC 512.
          12. DW 5 is entitled to appear as an independent witness
          or attorney but because of the embargo of Section 120 of
          the Evidence Act, he is not entitled to step into the shoes
          of his mother. He cannot adduce evidence on behalf of
          his mother.”
26. We may only clarify that by virtue of Section 120 of the Indian
    Evidence Act alone the D.W.5 cannot be termed as an incompetent
    witness. In other words, the line of reasoning assigned by the High
    Court gives us an impression that since son and mother do not
    figure in Section 120 of the Indian Evidence Act and only husband
    and wife figures, the son cannot depose on behalf of his mother.
    That understanding is not correct. It is not in dispute that Defendant
    No. 1 did not enter the witness box, however, D.W.5 her son entered
    the box and deposed.
27. 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 i.e., 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 Section 120 of the Indian Evidence Act.
28. Let us for the time being proceed on the footing that the oral
    evidence of D.W.5 is required to be eschewed from consideration.
    The 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 – herein, at least the other parts
    should have been taken into consideration.
[2025] 8 S.C.R.                                                     749

              Nilima Das Gupta (Deceased) Through its Lrs. v.
             On The Death of Abdur Rouf His Legal Heirs & Ors.

29. We have reached the conclusion that we should set aside the
    impugned Judgment and Order passed by the High Court and
    remand the matter to the High Court for fresh consideration of the
    Regular Second Appeal No.35/2013. This time the High Court shall
    formulate the substantial question of law in its Judgment and decide
    the same in accordance with law, more particularly keeping in mind
    what has been observed by us in this order.
30. With the aforesaid, the appeal stands disposed of accordingly.
31. Pending applications, if any, also stand disposed of.

     Result of the case: Appeal disposed of.




     †
         Headnotes prepared by: Nidhi Jain