Case Note & Summary
The revision petitioner, Yogesh Parmar, challenged the order of the III Additional District and Sessions Judge, Dharapuram, dated 26.11.2025, which rejected his application (E.A.CFR.No.7390 of 2025) at the SR stage without numbering it. The application was filed in execution proceedings arising from a decree in O.S.No.216 of 2008. The petitioner claimed under a registered Will executed by the testatrix, who had purchased the property. The executing court held that the Will could not be proved by examining the petitioner's sister, who was a disinherited legal heir. The High Court, per Justice P.B. Balaji, allowed the revision petition, setting aside the impugned order and directing the executing court to number the application and permit the petitioner to examine his sister and other witnesses. The court held that the executing court ought not to have precluded the petitioner at the numbering stage and that the question of proof of the Will should be decided after affording an opportunity to adduce evidence. The court also noted that under Section 139 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 134 of the Indian Evidence Act), there is no restriction on the number of witnesses. The revision petition was allowed with a direction to the executing court to dispose of the application within three months.
Headnote
A) Civil Procedure - Execution Proceedings - Rejection at SR Stage - Code of Civil Procedure, 1908, Order I Rule 10 - The executing court rejected the petitioner's application at the SR stage without numbering it, holding that the Will could not be proved by examining the sister. The High Court held that the executing court ought not to have shut out the remedy at the numbering stage and should have permitted the petitioner to examine his sister to establish the truth and genuineness of the Will. (Paras 3-4, 8-10)
B) Evidence - Proof of Will - Examination of Witnesses - Indian Evidence Act, 1872, Section 68; Indian Succession Act, 1925, Section 63; Bharatiya Sakshya Adhiniyam, 2023, Section 139 - The petitioner sought to examine his sister, a disinherited legal heir, to prove the Will. The High Court held that there is no embargo on the number of witnesses under Section 139 BSA (formerly Section 134 Evidence Act) and that the best person to speak about the Will is the other disinherited legal heir. The court should have permitted the examination before deciding on proof. (Paras 4, 8-10)
C) Specific Relief - Purchaser's Rights - Section 19 Specific Relief Act, 1963 - The petitioner claimed that the property was purchased bonafide by the testatrix and that the same would have to be gone into under Section 19 of the Specific Relief Act. The High Court noted this contention but did not decide on it, as the main issue was the rejection at the SR stage. (Para 4)
Issue of Consideration
Whether the executing court was justified in rejecting the petitioner's application at the SR stage without permitting him to examine his sister to prove the Will.
Final Decision
The Civil Revision Petition is allowed. The impugned order dated 26.11.2025 in E.A.CFR.No.7390 of 2025 is set aside. The executing court is directed to number the application and permit the petitioner to examine his sister and other witnesses. The executing court shall dispose of the application within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed.
Law Points
- Executing court cannot reject application at SR stage without affording opportunity to examine witnesses
- Section 68 Indian Evidence Act
- Section 63 Indian Succession Act
- Section 139 Bharatiya Sakshya Adhiniyam 2023
- Section 19 Specific Relief Act
- Order I Rule 10 CPC
Case Details
CRP.No.6609 of 2025 & CMP.No.32768 of 2025
Mr.S.Mukunth (Senior Counsel for M/s.K.S.Advocates) for petitioner, Mr.N.Manoharan (for Mr.N.Ponraj) for R1
A.P.Velusamy, C.AIR Forwarders (INDIA) Private Limited, Shriranjan Venugopalan Menon
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Nature of Litigation
Civil Revision Petition challenging rejection of application at SR stage in execution proceedings.
Remedy Sought
Petitioner sought to set aside the rejection order and direct the executing court to number the application and permit examination of his sister to prove the Will.
Filing Reason
The executing court rejected the petitioner's application at the SR stage without numbering it, holding that the Will could not be proved by examining the sister.
Previous Decisions
The suit was decreed in September 2012. E.P.No.92 of 2015 was filed in November 2015. Petitioner's impleadment application I.A.No.32 of 2010 was dismissed on 13.06.2011 and became final. This Court in CRP.No.3057 of 2025 dated 29.07.2025 had observed that the Will would have to be proved in the manner known to law.
Issues
Whether the executing court was justified in rejecting the petitioner's application at the SR stage without permitting him to examine his sister to prove the Will.
Whether the examination of a disinherited legal heir can be a valid mode of proving a Will under Section 68 of the Indian Evidence Act read with Section 63 of the Indian Succession Act.
Submissions/Arguments
Petitioner argued that the executing court ought not to have shut out the remedy at the numbering stage and should have permitted examination of his sister, the best person to speak about the Will, especially since one attesting witness is dead and the whereabouts of the other are unknown. Reliance placed on Section 139 BSA (formerly Section 134 Evidence Act) that there is no embargo on number of witnesses.
Respondent argued that the sister was not present at execution of Will and her examination would not amount to proof under Section 68 Evidence Act. Also, the petitioner failed to take steps to examine the living attesting witness or legal representatives of the deceased attesting witness.
Ratio Decidendi
An executing court cannot reject an application at the SR stage without affording the applicant an opportunity to adduce evidence. The question of proof of a Will should be decided after permitting the party to examine witnesses, including a disinherited legal heir, as there is no restriction on the number of witnesses under Section 139 of the Bharatiya Sakshya Adhiniyam, 2023.
Judgment Excerpts
the executing Court ought not to have shut out the remedy of the petitioner even at the numbering stage
there is no embargo for a party to examine any number of witnesses
the best person to speak about the Will is the other disinherited legal heir
Procedural History
The suit O.S.No.216 of 2008 was decreed in September 2012. Execution petition E.P.No.92 of 2015 was filed in November 2015. The petitioner filed I.A.No.32 of 2010 for impleadment which was dismissed on 13.06.2011 and became final. The petitioner filed E.A.No.10 of 2022 in the execution proceedings. Subsequently, the petitioner filed E.A.CFR.No.7390 of 2025 seeking to examine his sister, which was rejected at the SR stage on 26.11.2025. The petitioner filed CRP.No.6609 of 2025 challenging that rejection. This Court in CRP.No.3057 of 2025 dated 29.07.2025 had observed that the Will would have to be proved in the manner known to law.
Acts & Sections
- Code of Civil Procedure, 1908: Order I Rule 10
- Indian Evidence Act, 1872: Section 68, Section 134
- Indian Succession Act, 1925: Section 63
- Bharatiya Sakshya Adhiniyam, 2023: Section 139
- Specific Relief Act, 1963: Section 19
