Under Section 68 of the Indian Evidence Act, 1872, where the examination-in-chief of the sole surviving attesting witness omits the other witness’s attestation but the opposite party’s own cross-examination elicits an affirmative answer to a leading question that all of them signed on the date the will was written, does that answer lack probative value?

No. Leading questions are permitted in cross-examinations and the response elicited cannot be said to have lesser probative value, as the High Court had held. On the plaintiff’s own suggestion the witness affirmed not only the signature of the testator and of himself but also that of the other attesting witness, and the missing piece in the examination-in-chief was thereby supplied.

Indian Succession Act, 1925 — s.63(c) — Indian Evidence Act, 1872 — s.68 — s.71 — Proof of will — Attestation by both witnesses — Leading questions in cross-examination — Rule of prudence — Exclusion of one heir — Indian Evidence Act, 1872 — s.68 — Indian Succession Act, 1925 — s.63(c) — Attesting witness must prove both attestations — Held: The one attesting witness examined must speak on the execution of the will by the testator, on his own attestation and on the attestation by the other witness; anything short of that falls short of attestation by two witnesses. (¶15, 16) Indian Evidence Act, 1872 — s.68 — Proof of will — Answer elicited by a leading question in cross-examination — Held further: Where the examination-in-chief is silent on the other witness’s attestation but the plaintiff’s own cross-examination elicits an affirmative answer, that answer cannot be said to have lesser probative value; leading questions are permitted in cross-examinations. (¶23, 29) Indian Succession Act, 1925 — s.63 — Deposition twenty-four years after execution — Mathematical precision not expected — Held further: A witness examined twenty-four years after execution cannot be expected to remember his visits to the testator’s house with mathematical precision, particularly given his close association as a frequent visitor. (¶27) Indian Succession Act, 1925 — Rule of prudence — One of nine children excluded — Arm-chair of the testator — Held further: The caution required where the legal heirs are divested in whole does not arise where a single child out of nine is excluded for a stated reason; the court sits in the arm-chair of the testator and cannot substitute its own opinion. Appeals allowed. (¶28, 31)

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