Affidavit Is Not Evidence Under Section 3 of Evidence Act: Supreme Court Ruling in Parvathi Nairthi v. Laxmi Nairthy (2026)
EduLaw EditorialLandmark JudgementsTitle: Affidavit Is Not Evidence Under Section 3 of Evidence Act — Supreme Court Reaffirms in Landmark Will Dispute Case Name: Parvathi Nairthi (Dead) and Ors. v. Laxmi Nairthy (Dead) Through LRs. and Ors. Case Number: Civil Appeal No. 6859 of 2014 (Arising out of SLP (Civil) No. 12822 of 2013) Court: Supreme Court of India Judges: Hon'ble Mr. Justice Ujjal Bhuyan and Hon'ble Mr. Justice Vijay Bishnoi Judgment Date: 21st May, 2026 Citation: 2026 SCC OnLine SC 911 / 2026 INSC 521 ABSTRACT The Supreme Court of India, in Parvathi Nairthi v. Laxmi Nairthy (2026 SCC OnLine SC 911), delivered a significant judgment addressing multiple dimensions of succession law, evidence law, and civil procedure. The central dispute arose from a Will executed by one B. Sheena Nairi, a Chartered Accountant, who bequeathed his immovable properties in Karnataka to his sister Laxmi Nairthy, bypassing his wife and children. The appellants — the wife and sons of the testator — challenged the Will as fabricated and relied upon affidavits of the attesting witnesses who denied having signed the document. The Supreme Court, while upholding the concurrent findings of three courts in favour of the Will's validity, delivered an authoritative pronouncement on the evidentiary value of affidavits. Relying on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (2013) 4 SCC 465 , the Court categorically held that an affidavit is not "evidence" within the meaning of Section 3 of the Indian Evidence Act, 1872 , and can only be treated as evidence when the Court passes a specific order under Order XIX of the Code of Civil Procedure, 1908 . The judgment also consolidates principles relating to proof of Wills under Section 68 of the Evidence Act , the scope of suspicious circumstances, the irrelevance of mutation entries to title, and the standard of substantial compliance with Order XLI Rule 31 of CPC . TABLE OF CONTENTS Introduction and Significance of the Judgment Factual Background and the Disputed Will Procedural Journey Through Three Courts Core Legal Issues Before the Supreme Court The Law on Proof and Validity of a Will — Principles Restated Affidavit Is Not Evidence Under Section 3 of the Evidence Act — The Decisive Ruling Suspicious Circumstances and Deprivation of Natural Heirs — Scope Clarified Conclusion and Key Takeaways for Legal Practitioners 1. INTRODUCTION AND SIGNIFICANCE OF THE JUDGMENT The evidentiary status of an affidavit in Indian law has often been misunderstood by litigants and practitioners alike. Many parties assume that filing a sworn affidavit before a court is equivalent to producing admissible evidence. The Supreme Court of India, through its judgment in Parvathi Nairthi v. Laxmi Nairthy, has once again dismantled this misconception with unmistakable clarity. The ruling reinforces that the Indian legal system draws a firm boundary between a sworn statement filed on paper and actual testimony subjected to judicial scrutiny and cross-examination. This distinction is not merely academic — it determined the fate of a property dispute spanning over three decades, traversing the Trial Court at Udupi, the First Appellate Court, the High Court of Karnataka, and ultimately the Supreme Court. The significance of this judgment extends beyond property law; it speaks to the very foundation of what constitutes admissible proof in Indian courts. The judgment was delivered by a Bench comprising Justice Ujjal Bhuyan and Justice Vijay Bishnoi, who authored the opinion. The case arrived before the Supreme Court as a challenge to the concurrent findings of three courts, all of which upheld the validity of a Will executed by B. Sheena Nairi in favour of his sister. The appellants — the testator's wife Parvathi Nairthi and sons — had staked their defence substantially on affidavits filed by the attesting witnesses to the Will, in which they denied having attested the document. The Supreme Court's treatment of these affidavits provides an authoritative restatement of the law that practitioners in civil, succession, and property litigation must internalise. 2. FACTUAL BACKGROUND AND THE DISPUTED WILL B. Sheena Nairi was a Chartered Accountant who worked with five reputed companies in Bombay. Besides a residential flat in Bombay, he owned substantial immovable properties — primarily agricultural lands and ancestral properties — situated at Brahmavar and Chanthar Village in Udupi Taluk, Karnataka. He was survived by his wife Parvathi Nairthi, five children, and his sister Laxmi Nairthy. On 15th May, 1983, the testator executed his last Will, bequeathing all the plaint schedule properties (the Karnataka lands) in favour of his sister Laxmi Nairthy and simultaneously cancelling the Power of Attorney he had earlier executed in favour of his brother-in-law Krishnayya Nairi. The testator passed away on 30th November, 1983, at the age of 69, due to a heart attack in Delhi. Following his death, the testator's wife applied before the Tehsildar, Udupi, for transfer of the properties in her name. The Tehsildar passed a mutation order on 6th April, 1984, transferring the properties in favour of the wife. Meanwhile, Laxmi Nairthy had already given a written representation to the Tehsildar on 10th February, 1984, disclosing the existence of the Will and requesting mutation in her name, though no copy of the Will was attached. It was not until 22nd November, 1990 — approximately seven years after the testator's death — that Laxmi Nairthy instituted Civil Suit No. 186 of 1990 before the Additional Civil Judge (Senior Division), Udupi, seeking declaration of ownership under the Will, perpetual injunction, recovery of possession, and mesne profits. The wife and children contested the suit vigorously. Their written statement alleged that the Will was fabricated after the testator's death by his brothers B. Jagannatha Nairi and B. Lakshmana Nairi acting in collusion. They denied the testator's signature on the Will and asserted that the properties were never in the plaintiff's possession. 3. PROCEDURAL JOURNEY THROUGH THREE COURTS The Trial Court, vide Judgment and Decree dated 16th December, 2008, allowed the plaintiff's suit. It found that B. Jagannatha Nairi (PW2), one of the attesting witnesses, categorically deposed that the testator executed the Will in his presence and that the signature belonged to the testator. Critically, the wife and children of the testator did not enter the witness box, did not produce any independent witness, and did not subject the plaintiff or PW2 to meaningful cross-examination on the issue of forgery. The Trial Court also independently compared the disputed signatures on the Will with the admitted signatures on the Power of Attorney and found them to be from the same hand, noting coordination in writing, placement of dots, and formation of underlines. The First Appellate Court (Fast Track Court, Udupi), vide Judgment dated 6th August, 2012, dismissed the appeal and affirmed all findings of the Trial Court. It additionally noted that the plaintiff had promptly intimated the Tehsildar about the Will in February 1984, negating any inference of delay. It further relied upon the principle that the Trial Court possesses the power to compare signatures under Section 73 of the Indian Evidence Act , making reference to a handwriting expert unnecessary. The High Court of Karnataka, vide its Final Judgment dated 15th November, 2012, dismissed the Regular Second Appeal, holding that no substantial question of law arose. The High Court observed that the appellants never challenged the evidence of PW2 effectively, never summoned the second attestor themselves (if they believed he had not attested the Will), and failed to provide any particulars of properties allegedly given to them by the testator despite the Will's recital that they had been "given enough." 4. CORE LEGAL ISSUES BEFORE THE SUPREME COURT The Supreme Court framed the overarching issue as whether sufficient grounds existed to warrant interference with the concurrent findings of fact of all three courts upholding the Will's validity. Within this framework, the Court addressed several sub-issues of substantial legal importance: whether the seven-year delay in filing the suit vitiated the plaintiff's claim; whether the exclusion of natural heirs constituted a suspicious circumstance sufficient to invalidate the Will; whether the First Appellate Court's alleged non-compliance with Order XLI Rule 31 of CPC rendered its judgment defective; and crucially, whether the affidavits filed by the attesting witnesses — denying their attestation — could be treated as evidence to invalidate the Will. 5. THE LAW ON PROOF AND VALIDITY OF A WILL — PRINCIPLES RESTATED The Supreme Court began its analysis by restating the well-settled principles governing the proof and execution of Wills. Citing Section 68 of the Indian Evidence Act, 1872 , the Court observed that where a document is required by law to be attested, it cannot be used as evidence until at least one attesting witness alive, subject to the court's process, and capable of giving evidence has been called to prove its execution. The Court then relied upon the comprehensive principles enumerated in Meena Pradhan and Others v. Kamla Pradhan and Another (2023 SCC OnLine SC 1198) , which itself drew upon a chain of authoritative decisions including H. Venkatachala Iyengar v. B.N. Thimmajamma (1958 SCC OnLine SC 31) , Bhagwan Kaur v. Kartar Kaur (1994) 5 SCC 135 , Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 , Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009) 4 SCC 780 , and Shivakumar v. Sharanabasappa (2021) 11 SCC 277 . From these authorities, the Court distilled that a Will is not required to be proved with mathematical accuracy — the test is satisfaction of the prudent mind. It must fulfil the formalities under Section 63 of the Indian Succession Act, 1925 , including the testator's signature and attestation by two witnesses who signed in the testator's presence. For proof, at least one attesting witness must be examined. The burden lies on the propounder to dispel suspicious circumstances, if any, but suspicion must be "real, germane and valid" and not "merely the fantasy of the doubting mind." Applying these principles, the Court found that PW2's categorical testimony — that the testator signed the Will in his presence and that he signed as attestor in the testator's presence — fulfilled the legal requirements. The failure of the appellants to enter the witness box or to produce the second attestor themselves to deny attestation was a telling circumstance that the three courts rightly weighed against them. 6. AFFIDAVIT IS NOT EVIDENCE UNDER SECTION 3 OF THE EVIDENCE ACT — THE DECISIVE RULING This is the most significant pronouncement in the judgment and the one that carries the widest application beyond property and succession disputes. The appellants had placed substantial reliance on affidavits filed by both attesting witnesses to the Will — including one Mohammad Saheb and B. Jagannatha Nairi — in which they purportedly denied having attested the Will. The appellants argued that these denials rendered the Will invalid. The Supreme Court rejected this contention decisively. Relying on the authoritative ruling in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others (2013) 4 SCC 465 , the Court held that it is a settled legal proposition that an affidavit is not "evidence" within the meaning of Section 3 of the Indian Evidence Act, 1872 . Section 3 defines "evidence" as comprising oral evidence (statements made before the Court by witnesses) and documentary evidence (documents produced for inspection by the Court). An affidavit — being a unilateral sworn statement not subjected to judicial examination — falls outside this definition. The Court further clarified that an affidavit can be used as "evidence" only if, for sufficient reasons, the Court passes a specific order under Order XIX of the Code of Civil Procedure, 1908 . Order XIX Rule 1 empowers the Court to order that any particular fact may be proved by affidavit, and Rule 2 provides that upon any application, evidence may be given by affidavit, subject to the court's power to order the deponent's attendance for cross-examination. Without such a judicial order, the filing of an affidavit "cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation." The Court added an important qualifier: even if an affidavit is filed, it can only be relied upon where the deponent is made available for cross-examination and the opposite party is given a meaningful opportunity to test the deponent's assertions. In the present case, the affidavits were filed even before the written statement, without any court direction, and crucially, the deponents were never subjected to cross-examination. Furthermore, all three courts had questioned how the attesting witnesses came to know about the pendency of the suit and filed affidavits when no notice had been issued to them by the Court — suggesting that the affidavits were procured at the instance of the appellants rather than being voluntarily offered testimonies. The Court also noted that PW2 (B. Jagannatha Nairi), when cross-examined at trial, stated that the testator's daughter came to his house and took his signature on a paper without informing him of its contents — thereby exposing the affidavit as a self-created document of the appellants rather than a genuine denial. This ruling has far-reaching implications. It means that parties cannot defeat a proved Will — or indeed any proved fact — by merely filing affidavits containing denials. Unless the deponent enters the witness box, submits to cross-examination, and the court exercises its specific power under Order XIX CPC, such affidavits remain legally inconsequential. This protects the integrity of the adversarial trial system and prevents the back-door introduction of untested claims. 7. SUSPICIOUS CIRCUMSTANCES AND DEPRIVATION OF NATURAL HEIRS — SCOPE CLARIFIED The appellants also contended that the exclusion of the testator's wife and children from the Will — in favour of his sister — itself constituted a suspicious circumstance that should invalidate the document. The Supreme Court disposed of this argument by relying on Rabindra Nath Mukherjee v. Panchanan Banerjee (1995) 4 SCC 459 , which established that mere deprivation of natural heirs, by itself, does not amount to a suspicious circumstance. The rationale is straightforward — the very purpose of executing a Will is to interfere with the normal line of succession. If excluding natural heirs were automatically suspicious, the institution of testamentary disposition would be rendered meaningless. However, the Court also acknowledged the nuance articulated in Ram Piari v. Bhagwant (1990) 3 SCC 364 , which held that prudence requires some reason for denying the benefit of inheritance to natural heirs, and the absence of reason — though not invalidating the Will in all cases — may shroud the disposition with suspicion. Applying this balance, the Court found that the Will in the present case expressly stated: "I am doing no injustice to my wife and children or other relatives… I have given enough and more to my wife and children who are residing at Bombay." This recital provided the reason that prudence demanded. The fact that the wife and children failed to furnish any details of what properties they already possessed — despite having every opportunity to do so in the witness box — further weakened their position. On the question of what constitutes a legally cognisable suspicious circumstance, the Court referred to Indu Bala Bose v. Manindra Chandra Bose (1982) 1 SCC 20 , which held that "any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person." Examples include a shaky signature, a feeble mind, an unfair disposition where the propounder takes a leading part in making the Will, and similar factors. Mere exclusion of legal heirs, absent these hallmarks, does not qualify. The Court also addressed two additional contentions. First, that mutation entries obtained by the appellants in 1984 conferred title — this was rejected following Balwant Singh v. Daulat Singh (1997) 7 SCC 137 , which establishes that mutation is purely a fiscal exercise for revenue purposes and confers no title. Second, that the Will being unregistered weakened its validity — this was rejected following Ishwardeo Narain Singh v. Kamta Devi (1953) 1 SCC 295 , which held that "there is nothing in law which requires the registration of a will" and non-registration raises no inference against genuineness. 8. CONCLUSION AND KEY TAKEAWAYS FOR LEGAL PRACTITIONERS The Supreme Court dismissed the appeal and affirmed the concurrent findings of all three courts, holding that the Will was duly executed by the testator voluntarily, out of his free will, in a sound state of mind. The appeal was dismissed with no order as to costs. This judgment offers several important takeaways for legal practitioners. First, an affidavit, however emphatic in its assertions, does not constitute evidence under Section 3 of the Indian Evidence Act unless the Court specifically directs proof by affidavit under Order XIX CPC and the deponent is made available for cross-examination. Parties who rely on affidavits to contradict proved facts without subjecting the deponent to cross-examination do so at their own peril. Second, the judgment reinforces that concurrent findings of three courts on questions of fact will not be disturbed by the Supreme Court unless demonstrably perverse. Third, parties challenging a Will bear a heavy burden — allegations of forgery and fabrication must be proved, not merely alleged. Refusing to enter the witness box while making such serious allegations is fatal to a defence. Fourth, deprivation of natural heirs does not, by itself, create a suspicious circumstance that invalidates a Will. The testator retains complete liberty to dispose of his property by Will as he deems fit, provided the execution is genuine and voluntary. Fifth, mutation entries are irrelevant to the question of title, and non-registration of a Will carries no adverse inference. Practitioners should note the broader application of the affidavit ruling across all civil litigation — whether in property matters, family disputes, commercial cases, or tribunal proceedings. Any strategy that depends on affidavits as a substitute for oral testimony will fail unless the conditions of Order XIX are fulfilled and the deponent submits to cross-examination. CASE LAWS CITED IN THE JUDGMENT Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others (2013) 4 SCC 465 — Affidavit is not evidence under Section 3 of the Indian Evidence Act. Meena Pradhan and Others v. Kamla Pradhan and Another, 2023 SCC OnLine SC 1198 — Principles for validity and execution of a Will. H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 SCC OnLine SC 31 — Proof of a Will and suspicious circumstances. Bhagwan Kaur v. Kartar Kaur (1994) 5 SCC 135 — Attestation and proof requirements for Wills. Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 — Principles of Will validity. Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009) 4 SCC 780 — Suspicious circumstances and testamentary disposition. Shivakumar v. Sharanabasappa (2021) 11 SCC 277 — Suspicious circumstances must be real, germane, and valid. Rabindra Nath Mukherjee v. Panchanan Banerjee (1995) 4 SCC 459 — Deprivation of natural heirs not per se suspicious. Ram Piari v. Bhagwant (1990) 3 SCC 364 — Prudence requires reason for excluding natural heirs. Indu Bala Bose v. Manindra Chandra Bose (1982) 1 SCC 20 — Definition and scope of suspicious circumstances. Balwant Singh v. Daulat Singh (1997) 7 SCC 137 — Mutation does not confer title. Ishwardeo Narain Singh v. Kamta Devi (1953) 1 SCC 295 — Non-registration does not affect validity of a Will. G. Amalorpavam v. R.C. Diocese of Madurai (2006) 3 SCC 224 — Substantial compliance with Order XLI Rule 31 CPC suffices. KEY STATUTORY PROVISIONS Section 3, Indian Evidence Act, 1872 — Definition of "Evidence" (oral and documentary). Section 68, Indian Evidence Act, 1872 — Proof of execution of attested documents. Section 73, Indian Evidence Act, 1872 — Court's power to compare disputed signatures. Section 63, Indian Succession Act, 1925 — Formalities for execution of a Will. Order XIX, Code of Civil Procedure, 1908 — Affidavits and when they may constitute evidence. Order XLI Rule 31, Code of Civil Procedure, 1908 — Contents and requirements of appellate judgments.