Affidavits Cannot Displace Cross-Examined Will Evidence

The Supreme Court dismissed the appeal and affirmed the concurrent findings of the trial court, first appellate court, and High Court upholding the validity of the Will dated 15 May 1983.

The dispute arose from the estate of B. Sheena Nairi, who executed a Will in favour of his sister, Laxmi Nairthy, and also cancelled the power of attorney earlier executed in favour of his brother-in-law. After his death, his wife and children challenged the Will as false and fabricated, denied the signature, and disputed the revocation of the power of attorney.

The trial court accepted the Will. It relied on the testimony of PW2, B. Jagannatha Nairi, who was one of the attesting witnesses and stated that the testator executed the Will in his presence. The court also compared the admitted signature on the power of attorney with the signatures on the Will and found sufficient similarity in the writing, dots, and underline formation. On the possession issue, it held that the power of attorney holder was only a licensee and that the plaintiff was entitled to recover possession of the relevant properties under the Will.

The Supreme Court found no reason to interfere with these concurrent findings. A central argument before the Court was that affidavits filed by the attesting witnesses, denying execution of the Will, should invalidate it. The Court rejected that submission. Referring to Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others, it reiterated that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872, unless it is received as evidence in accordance with Order XIX of the Code of Civil Procedure. The Court also noted that the affidavits had been filed even before the written statement, and the circumstances in which they were filed made them unreliable.

The Court therefore held that the affidavits could not displace the oral evidence and the factual findings already recorded by the courts below. Since the findings on execution, attestation, signature comparison, and revocation of the power of attorney were all well reasoned, the appeal was dismissed.

Practical takeaway: In Will disputes, affidavits alone will not undo cross-examined testimony and concurrent factual findings.