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

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

Section 120 alone does not render the son (D.W.5) incompetent to testify; while D.W.5 cannot give evidence as to matters within his mother's exclusive personal knowledge, his evidence cannot be discarded entirely on the basis of Section 120. The High Court's exclusion of his evidence in toto was incorrect; the High Court's impugned judgment is set aside and the matter remanded for fresh consideration including formulation and decision on the substantial question of law.

Parties
Appellant (original Defendant No.1): Nilima Das Gupta (Deceased) Through Its Lrs.; Respondents (original Defendant No.3 / Respondent Nos.1 to 4): On The Death of Abdur Rouf His Legal Heirs & Ors.
Jurisdiction
India
Judgment Date
19 August 2025
Procedural Posture
Civil Appeal / Appeal to the Supreme Court From Gauhati High Court Judgment in RSA No.35/2013; Matter Remanded to High Court for Fresh Consideration
Outcome
Appeal disposed of; impugned judgment and order of the Gauhati High Court dated 15-3-2021 in RSA No.35/2013 set aside; matter remanded to the High Court for fresh consideration
Legal Topics
Competence of Witnesses, Section 120 Indian Evidence Act, Nemo in Propria Causa, Witness Testifying on Behalf of Another
Evidence Act, 1872 Code of Civil Procedure, 1908 Title Suit Competence of Witnesses Section 120 Indian Evidence Act Nemo in Propria Causa Witness Testifying on Behalf of Another

Case Brief

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Parties

Nilima Das Gupta (Deceased) Through Its Lrs.

Appellant (original Defendant No.1)

On The Death of Abdur Rouf His Legal Heirs & Ors.

Respondents (original Defendant No.3 / Respondent Nos.1 to 4)

Procedural Posture

Civil Appeal / Appeal to the Supreme Court From Gauhati High Court Judgment in RSA No.35/2013; Matter Remanded to High Court for Fresh Consideration

Legal Issues

  1. 1 Whether D.W.5 (the son) was competent to enter the witness box and depose on behalf of his mother (Original Defendant No.1) under Section 120 of the Indian Evidence Act, 1872
  2. 2 Whether the High Court was correct in eschewing the entire oral evidence of D.W.5 and allowing the Second Appeal

Ratio Decidendi

Section 120 alone does not render the son (D.W.5) incompetent to testify; while D.W.5 cannot give evidence as to matters within his mother's exclusive personal knowledge, his evidence cannot be discarded entirely on the basis of Section 120. The High Court's exclusion of his evidence in toto was incorrect; the High Court's impugned judgment is set aside and the matter remanded for fresh consideration including formulation and decision on the substantial question of law.

Court Disposition

Appeal disposed of; impugned judgment and order of the Gauhati High Court dated 15-3-2021 in RSA No.35/2013 set aside; matter remanded to the High Court for fresh consideration

Orders

  • Impugned judgment and order dated 15-3-2021 of the Gauhati High Court in RSA No.35/2013 set aside
  • Matter remanded to the High Court for fresh consideration of Regular Second Appeal No.35/2013 with formulation and decision of the substantial question of law in accordance with this order