Attesting Witness Need Not Know Contents Of Will Under Section 63(c): Delhi High Court

“Whether Plaintiff Knew Contents Of The Will In 2008 Is A Matter For Trial…Plea of limitation, where the plaintiff asserts delayed knowledge of essential facts, becomes a mixed question of law and fact and cannot be decided at the threshold” – Delhi High Court

In a significant ruling touching upon the nuances of partition suits, the Delhi High Court dismissed an application seeking rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908. The Court clarified that when a party asserts that they gained knowledge of a disputed Will at a later point, limitation becomes a triable issue and cannot be adjudicated at the preliminary stage.

“Limitation Is A Mixed Question Of Law And Fact”: Court Emphasizes Scope Of Order VII Rule 11

The central issue before the Court was whether a suit for partition, permanent injunction and rendition of accounts—based on inheritance from the late Smt. Barfo Devi—was barred by limitation, particularly after an amendment to the plaint introduced a challenge to an alleged Will dated 24.07.2008.

The application, filed by Defendant No. 1, invoked Order VII Rule 11 read with Order X Rule 2 CPC, asserting that the Plaintiff, Vandana Rana, had signed the 2008 Will as an attesting witness and was therefore fully aware of its contents from the very beginning. It was alleged that the amended plaint, claiming ignorance of the Will until 2019, was a cleverly drafted ruse to evade limitation.

However, Justice Subramonium Prasad rejected the plea, holding that limitation in such cases is not a pure question of law but intertwined with factual determinations. "Whether the Will was shown to the Plaintiff or not is a matter to be elucidated in the cross-examination, which would be done only at the stage of evidence in the trial," the Court noted.

The Court drew strength from the Supreme Court’s dicta in Salim D. Agboatwala v. Shamalji Oddhavji Thakkar, (2021) 17 SCC 100, observing that:

“When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order 7 Rule 11.”

Attesting Witness Need Not Know Contents Of Will Under Section 63(c): Court Rejects Presumption of Knowledge

Another crucial argument raised by the Defendant was that the Plaintiff, being an attesting witness, must be deemed to have read and understood the Will. Rejecting this, the Court held that under Section 63(c) of the Indian Succession Act, 1925, there is no legal requirement for an attesting witness to be aware of the contents of the Will.

“This Court cannot presume that since the Plaintiff was attesting witness, she knew about the contents of the Will... the law does not warrant that attesting witness must know the contents of the will,” the judgment states, relying on Ganesan v. Kalanjiam, (2020) 11 SCC 715.

“Truthfulness Of Pleadings Not To Be Tested At Threshold”: Court Restrains Scope Of Order X Rule 2

The Defendant had also sought Plaintiff’s examination under Order X Rule 2 CPC to “test the veracity” of her pleadings. However, the Court dismissed this approach as legally untenable.

“Order X Rule 2 is an enabling provision to clarify pleadings, not a substitute for cross-examination... the Court cannot assume the role of counsel for one party,” observed Justice Prasad, citing Vikas Aggarwal v. Anubha, (2002) 4 SCC 468.

The Court further underscored that alleged contradictions between the original and amended plaint—regarding the date of Plaintiff’s knowledge of the 2008 Will—must be evaluated at trial, not under a summary jurisdiction.

Dispute Raises Serious Triable Issues About Alleged Fraud And Coercion Over Inheritance

The factual background, as recited in the judgment, narrates a disturbing sequence where Defendant No.1 allegedly misused familial trust to have the testator (Late Smt. Barfo Devi) unknowingly sign documents at the Sub-Registrar’s office in 2008 under the guise of a power of attorney. Doubts over the existence and authenticity of those documents only emerged years later, according to the Plaintiff, culminating in the filing of the present suit in 2019.

In 2017, the deceased had executed a fresh registered Will revoking all earlier testamentary dispositions and expressing a clear intention to devolve her estate equally among all children. However, after her death in 2019, Defendant Nos. 1 and 2 allegedly used coercive tactics and threats of alienation, which prompted the Plaintiff to institute the suit.

Rejecting the defendant's plea that the suit was "vexatious" or “filed with no cause of action,” the Court concluded:

“The Plaint discloses triable issues and cannot be termed vexatious or illusory at threshold.”

The Delhi High Court's ruling sends a strong message on the cautious exercise of powers under Order VII Rule 11 CPC, particularly in inheritance disputes involving contested Wills and claims of suppression of material facts. It reiterates that rejection of plaint is a drastic measure and should not be used to pre-empt a genuine trial on disputed facts.

By refusing to indulge in premature assumptions of knowledge or authenticity of the Will, the Court has upheld the principle that civil suits should not be short-circuited where factual clarity is awaited.

Date of Decision: 23 January 2026