Allowed¶33

R.Nithya v. R.Priya

Madras HC16 Jun 2026A/725/2026

Case brief

AI extract

What is this about?

De bene esse examination of attesting witness; Testamentary Original Suit; Letters of Administration with Will annexed; propounder of Will; Order XXVI Rules 1 & 2 Original Side Rules; Order XVIII Rule 16 CPC; Order XVIII Rule 3A CPC directory not mandatory; Section 68 Indian Evidence Act 1872; attesting witness evidence indispensable; endangered evidence preservation; Ravi and Gurunathapillai v. Ramar 2008 (1) CTC 36; S. Srinivasan v. Balambal 2000 (1) CTC 646; Madras High Court Original Side; permission to examine witness as P.W.1; cross-examination preserved; no costs.

What did the court decide?

Applicant/Plaintiff permitted to examine the first attesting witness, Latha Ramesh, de bene esse as P.W.1 in T.O.S. No. 41 of 2013; Respondent/Defendant entitled to cross-examine the witness in accordance with law; no costs. ¶33

R.Nithya Vs R.Priya — Madras HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the Applicant/Plaintiff should be permitted to examine the first attesting witness, Latha Ramesh, de bene esse as P.W.1 in the Testamentary Original Suit. +1 more

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Court's answer

Sufficient cause and emergency were made out: the first attesting witness is aged and suffering from age-related ailments and ill-health, and the second attesting witness is in Muscat and not readily available; since evidence of at least one attesting witness is indispensable for proving the Will under Section 68 of the Indian Evidence Act, 1872 and is in real danger of being lost, this is a fit case for de bene esse examination.

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Ratio / Principle

The de bene esse provision (Order XXVI Rules 1 & 2 of the Original Side Rules), Order XVIII Rule 16 CPC and Order XVIII Rule 3A CPC operate in three wholly distinct fields; a de bene esse examination neither attracts nor is controlled by Rule 3A, and the objection founded on the absence of prior leave under Rule 3A proceeds on a conflation of the three provisions and is misconceived.

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Key takeaways

Order XVIII Rule 3A CPC is directory and not mandatory; the conflict among learned single Judges of the Court (mandatory view: Ayyasami Gounder, V. Jayakannan; directory view: Marappa Gounder, A. Karuppuswamy), which led to a reference by Sathasivam, J. in S. Srinivasan v. Balambal, was authoritatively resolved by the Division Bench in Ravi and Gurunathapillai v. Ramar (2008 (1) CTC 36), which held that permission may be granted to a party to examine herself at a later stage even if not sought at the threshold, the overriding consideration being a genuine and germane reason, the only embargo being deliberate withholding to fill up lacunae.ratio¶29
The Applicant is not seeking to examine herself out of turn but only to preserve endangered evidence of an attesting witness; there is no question of lacunae being filled; the propounder remains free and indeed obliged to enter the witness box at the appropriate stage; and the omission to furnish the precise age and address of the proposed witness is not fatal and cannot defeat an otherwise meritorious application.ratio

Detailed headnote1 paragraphs

MADRAS HIGH COURT (Dr. Justice A.D. Maria Clete), 16-06-2026 — A.No.725 of 2026 in T.O.S. No. 41 of 2013: Application by the plaintiff/propounder in a testamentary suit for Letters of Administration with Will annexed (estate of the late N. Lalitha) to examine the first attesting witness, Latha Ramesh, de bene esse as P.W.1 — Allowed. Held: (i) the de bene esse provision (Order XXVI Rules 1 & 2, Original Side Rules), Order XVIII Rule 16 CPC and Order XVIII Rule 3A CPC operate in three wholly distinct fields; a de bene esse examination neither attracts nor is controlled by Rule 3A, and the objection premised on absence of prior leave under Rule 3A is misconceived; (ii) Order XVIII Rule 3A is directory, not mandatory — the conflict among single Judges (mandatory: Ayyasami Gounder v. T.S. Palanisami Gounder, AIR 1990 Madras 237; V. Jayakannan v. V.K. Sampathkumar, 1991 (II) MLJ 77; directory: Marappa Gounder v. Sellappa Gounder, AIR 1985 Madras 183; A. Karuppuswamy v. Gnana Soundari, 1986 (II) MLJ 456), referred by Sathasivam, J. in S. Srinivasan v. Balambal, 2000 (1) CTC 646, stands resolved by the Division Bench in Ravi and Gurunathapillai v. Ramar, 2008 (1) CTC 36; (iii) sufficient cause and emergency shown — first attesting witness aged and ailing, second attesting witness in Muscat; attesting-witness evidence indispensable under Section 68, Indian Evidence Act, 1872 and in danger of being lost; (iv) the propounder remains obliged to enter the witness box at the appropriate stage; omission of the witness's age/address not fatal. Respondent free to cross-examine; no costs.

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A.No.725 of 2026 IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 16-06-2026

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CORAM

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THE HON'BLE DR.JUSTICE A.D.MARIA CLETE

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A No. 725 of 2026 in T.O.S. No. 41 of 2013

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R.Nithya No.203, Srvanthi Pride -2, 12th Cross, 2^nd Main, J.P. Nagar, 3rd Phase, Bangalore - 560 078

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..Applicant(s)

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R.Priya Plot No.58, Senthil Andavar Street, Dhanalakshmi Colony, Vadapalani, Chennai 600 026.

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..Respondent(s)

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To permit the 1st Attesting Witness viz Latha Ramesh to be examined de be nesse on the side of Plaintiff, as PW-1 in the above mentioned T.O.S. For Applicant(s): Ms.Gayathri for M/s. P.B. Ramanujam For Respondent(s): Mr.P.Veeraraghavan

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ORDER

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This Application has been filed by the Applicant / Plaintiff seeking permission to examine the first attesting witness, viz., Latha Ramesh, de bene esse on the side of the Plaintiff as P.W.1 in the above Testamentary Original Suit.

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https://www.mhc.tn.gov.in/judis

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A.No.725 of 2026

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1. The learned counsel for the Applicant / Plaintiff would submit that the above

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suit is one for the grant of Letters of Administration with the Will annexed in respect of the Last Will and Testament of the late N. Lalitha. It is submitted that the evidence of an attesting witness is necessary for proving the Will in accordance with law. It is further submitted that the first attesting witness is not keeping good health and is also suffering from age-related ailments, and that the second attesting witness is presently in Muscat and is not readily available for adducing evidence in the suit. On these grounds, it is prayed that the said witness be permitted to be examined de bene esse .

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The Respondent / Defendant has filed a counter affidavit opposing the Application. In the counter, it is contended that the present age and full postal address of the proposed witness, Latha Ramesh, have not been furnished in the Application. It is further contended that the Applicant / Plaintiff has not obtained leave of this Court under Order XVIII Rule 3A of the Code of Civil Procedure to examine another witness before examining herself. It is also contended that the Applicant / Plaintiff, being the propounder of the Will, has to enter the witness box and cannot avoid examining herself as a witness in the suit. On the above grounds, the Respondent / Defendant seeks dismissal of the Application. 2/7

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https://www.mhc.tn.gov.in/judis

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A.No.725 of 2026 4. This court considered the rival submissions and perused the material on record.

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At the outset, it is necessary to notice that the provision under which a witness is sought to be examined de bene esse (Order XXVI Rule 1&2 of the Original Side Rules), Order XVIII Rule 16 of the Code of Civil Procedure, and Order XVIII Rule 3A of the Code of Civil Procedure operate in three wholly distinct fields, and one has nothing to do with the other. The de bene esse provision enables the conditional and anticipatory examination of a witness whose evidence is in danger of being lost, so that such evidence may be preserved and read at the hearing should the witness thereafter become unavailable. Order XVIII Rule 16 empowers the Court, where a witness is about to leave its jurisdiction or where other sufficient cause is shown—that is, upon proof of urgency or emergency—to take the evidence of such witness immediately, at any time after the institution of the suit. Order XVIII Rule 3A, on the other hand, has an altogether different object: it merely regulates the sequence in which a party desiring to testify must examine herself relative to her own witnesses, the purpose being to prevent a party from tailoring her evidence to fill up the lacunae after hearing her own witnesses.

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The examination of an endangered attesting witness de bene esse , or upon 3/7

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https://www.mhc.tn.gov.in/judis

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A.No.725 of 2026 sufficient cause under Order XXVI, therefore neither attracts nor is controlled by Rule 3A; the objection founded upon the absence of prior leave under Rule 3A proceeds upon a conflation of three distinct provisions and is misconceived.

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In the present case, the Applicant has made out sufficient cause and emergency for the immediate examination of the witness: the first attesting witness is aged and is suffering from age-related ailments and ill-health, and the second attesting witness is admittedly in Muscat and not readily available. The evidence of at least one attesting witness being indispensable for proving the Will in terms of Section 68 of the Indian Evidence Act, 1872, and such evidence being in real danger of being lost, this is a fit case for permitting the examination of the witness de bene esse .

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The objection founded upon Order XVIII Rule 3A is, in any event, unsustainable for the further reason that the said provision is only directory and not mandatory. The conflict among the learned single Judges of this Court on the point —between the view that prior permission is mandatory ( Ayyasami Gounder v. T.S. Palanisami Gounder , AIR 1990 Madras 237; V. Jayakannan v. V.K. Sampathkumar , 4/7

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https://www.mhc.tn.gov.in/judis

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A.No.725 of 2026 1991 (II) MLJ 77) and the view that the rule is merely directory ( Marappa Gounder v. Sellappa Gounder , AIR 1985 Madras 183; A. Karuppuswamy v. Gnana Soundari , 1986 (II) MLJ 456)—which led to a reference being made by Sathasivam, J. in S. Srinivasan v. Balambal , 2000 (1) CTC 646, has since been authoritatively resolved by a Division Bench of this Court in Ravi and Gurunathapillai v. Ramar reported in 2008 (1) CTC 36. The Division Bench, after a comprehensive survey of the law, held that Order XVIII Rule 3A is directory in nature; that the Court may grant permission to a party to examine himself at a later stage even where no such permission was sought at the threshold; and that the overriding consideration is not whether the application is made at the threshold or subsequently, but whether, for a genuine and germane reason, the party is required to be examined at a later stage, the only embargo being that permission must be refused where the party has deliberately withheld himself in order to fill up the lacunae in the evidence.

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Tested on these principles, the Applicant cannot be denied the relief sought. The Applicant is not seeking to examine herself out of turn; she seeks only to preserve, by way of de bene esse examination, the endangered evidence of an attesting witness. There is no question of any lacunae being filled, and the 5/7

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https://www.mhc.tn.gov.in/judis

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A.No.725 of 2026 Applicant, being the propounded, remains free and indeed obliged to enter the witness box and depose at the appropriate stage. The omission to furnish the precise age and address of the proposed witness is not, in the circumstances, fatal, and the same may be supplied; it cannot defeat an otherwise meritorious application.

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Accordingly, the Applicant / Plaintiff is permitted to examine the first attesting witness, viz., Latha Ramesh, de bene esse as P.W.1 in the above suit. It is made clear that the Respondent / Defendant shall be entitled to cross-examine the said witness in accordance with law, and therefore no prejudice would be caused to the Respondent / Defendant. Thus the Application is allowed. No costs.

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16-06-2026

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Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No

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https://www.mhc.tn.gov.in/judis

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A.No.725 of 2026

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