Section 68 Evidence Act And Its Proviso Inapplicable To Registered Sale Deeds: Supreme Court
The Bench noted that the Court decided the second appeal without framing substantial questions of law U/S 100 CPC and remitted the matter to the Kerala High Court for fresh consideration.
Justice J.B. Pardiwala, Justice Manoj Misra, Supreme Court
The Supreme Court has held that Section 68 of the Indian Evidence Act, 1872 does not apply to a registered sale deed, since a sale deed is not a document that is required by law to be attested. Consequently, even if a registered sale deed bears the signatures of marginal or attesting witnesses, its execution need not be proved by examining an attesting witness under the same.
The Court clarified that the mere presence of marginal or attesting witnesses on a sale deed does not attract Section 68. Consequently, the proviso to Section 68, which applies where execution is specifically denied, also has no application to such documents.
The Court further held that a High Court cannot decide a Regular Second Appeal without first formulating a substantial question of law under Section 100 CPC read with Order XLII Rule 2 CPC. Since the Kerala High Court had reversed the First Appellate Court's judgment without doing so, its judgment stood vitiated in law.
A Bench comprising Justice J.B. Pardiwala and Justice Manoj Misra observed, “There is no gainsaying that Section 68 opens with the words, ‘if a document is required by law to be attested…’. Since the proviso cannot be construed independently of the main provision that it attaches to, it is as clear as a noon day that the proviso to Section 68 cannot create an independent rule as regards “specific denial” for all attested documents. In other words, the proviso to Section 68 carves out an exception only in respect of documents that are required to be mandatorily attested by law. A sale deed does not fall in the category of such documents, therefore, the proviso to Section 68 would not be applicable in the present matter”.
“In the case at hand, the High Court failed to formulate any substantial questions of law and decide those questions, accordingly. In fact, the High Court set aside the first appellate court’s judgment and allowed the Second Appeal, and thereby restored the original decree that came to be passed by the trial court in favour of the plaintiff, i.e., the respondents before us. The impugned judgment could be said to be vitiated in law”, the Bench further noted.
Advocate Prakash Ranjan Nayak appeared for the appellant and Advocate Ankur S. Kulkarni appeared for the respondent.
The dispute concerned 13 cents of land in Kerala, originally held in two equal shares of 6.5 cents each by Rajeswari (defendant No. 3) and by Ashok Kumar and Lalitha, pursuant to a 1978 partition deed. Rajeswari sold her 6.5 cents to one Vanajakshi by registered sale deed dated December 19, 1978.
Subsequently, Vanajakshi, along with Ashok Kumar and Lalitha, jointly sold the entire 13 cents to the plaintiff by registered sale deed dated December 31, 1979. Despite this, Rajeswari executed a fresh sale deed for the very same 6.5 cents in favour of the appellants in 1996, who took possession and began construction, prompting the plaintiff to sue for declaration of title, recovery of possession, and cancellation of the 1996 sale deed.
The trial court decreed the suit in the plaintiff's favour, accepting the 1978 sale deed as validly proved through the oral testimony of an attesting witness (PW-3). The First Appellate Court reversed this, disbelieving PW-3's testimony and finding the Commissioner had failed to correctly identify the suit properties.
The Kerala High Court, in Second Appeal, restored the trial court's decree, holding that since Rajeswari (the executant) had not herself filed a suit specifically denying execution of the 1978 sale deed, the proviso to Section 68 of the Evidence Act was not attracted and no attesting witness needed to be examined. The defendants appealed to the Supreme Court.
The Court found the High Court's judgment vitiated on a threshold procedural ground: it disposed of the Second Appeal without formulating any substantial question of law, relying on Nazir Mohamed v. J. Kamala & Ors. (2020) 19 SCC 57, Ishwar Dass Jain v. Sohan Lal (2000) 1 SCC 434, and Roop Singh v. Ram Singh (2000) 3 SCC 708 to hold this a mandatory precondition under Section 100 CPC.
Independently, and to prevent subordinate courts from being misled, the Court also corrected the High Court's substantive error regarding Section 68, relying on Hans Raji v. Yosodanand (1996) 7 SCC 122 and Bayanabai Kaware v. Rajendra Dhote (2018) 1 SCC 585 to hold that Section 68 governs only documents requiring compulsory attestation by law, a category that excludes sale deeds under Section 54 of the Transfer of Property Act.
Accordingly, the appeal was allowed, and the High Court's judgment was set aside. The matter was remitted to the High Court for de novo hearing of the Second Appeal after formulating substantial questions of law, to be disposed of within three months, with the High Court directed to inform the Supreme Court of the disposal. The Registry was directed to forward a copy of the judgment to all High Courts.
Cause Title: R. Veronica & Anr. v. Rudrayani Devaki (D) through LRs. S. Satha Kumar & Ors. (Neutral Citation: 2026 INSC 703)
Appearances:
Appellants: Prakash Ranjan Nayak, Advocate.
Respondents: Ankur S. Kulkarni, Advocate.