Karnataka HC Upholds Refusal To Summon Two Beneficiary-Siblings As Witnesses In Will Dispute, Finding No Specific Evidentiary Purpose Was Shown

The plaintiffs filed O.S. No. 7340/2015 seeking a declaration that a Will dated 4 June 2001 was null and void, and a permanent injunction.

The defendant, who relied on the Will, sought under Order XVI Rule 21 CPC to summon plaintiff Nos. 2 and 3—stated to be beneficiaries and attesting witnesses—as defence witnesses.

The trial court dismissed the application, relying on the principle that calling an opposing party as one’s witness should not be encouraged.

The defendant challenged that order under Articles 226 and 227 of the Constitution.

Order XVI Rule 21 CPC contemplates examination of a party as a witness; an application cannot be refused solely because the proposed witness is an opposing party.

However, the provision does not confer an unrestricted right to compel an opponent to testify: the court must assess the purpose and relevance of the proposed evidence, and exercise its discretion judicially.

Under Section 63 of the Indian Succession Act, read with Section 68 of the Indian Evidence Act, due execution of a Will ordinarily requires examination of at least one attesting witness where such a witness is alive, capable of giving evidence, and subject to the court’s process.

The court referred to M.C. Ananda v. M.C. Chikkanna, Syed Yasin v. Syed Shaha Mohd. Hussain, Mallanagowda v. Govindaiah Gowda, and M. Sharadamma v. Kiran Kumar on the power to summon an opposing party and the need for judicial discretion.

The court held that the trial court’s stated basis—that an opposing party could not be examined—did not reflect an absolute bar under Order XVI Rule 21 CPC.

Nevertheless, the application had to identify a concrete and relevant evidentiary purpose.

The defendant’s general assertion that the Will required proof did not explain what specific act, circumstance, or transaction the plaintiffs’ testimony would establish.

Their status as beneficiaries did not itself show that their evidence was necessary or sufficient to prove execution or attestation.

The burden to prove the Will remained with the party relying on it, and any evidentiary deficiency was to be assessed at trial.

It expressed no opinion on the Will’s genuineness, validity, or proof, dismissed the writ petition, and closed all pending interlocutory applications.