Know The Law | Which Documents Require Mandatory Proof Of Attestation? Supreme Court Explains

In an important ruling clarifying the scope of Section 68 of the Indian Evidence Act, the Supreme Court has explained that the statutory requirement of proving a document by examining an attesting witness applies only to documents that are required by law to be attested. A registered sale deed, the Court held, does not fall within this category and therefore need not be proved in the manner contemplated under Section 68.

The ruling came from a Bench of Justice JB Pardiwala and Justice Manoj Misra while allowing an appeal against a Kerala High Court judgment in a property dispute. Besides holding that the High Court erred in deciding a second appeal without framing substantial questions of law under Section 100 of the Code of Civil Procedure, the Supreme Court also corrected what it described as two "egregious errors" in the High Court's interpretation of Section 68 of the Evidence Act.

The Bench observed that although it could have disposed of the appeal solely on the procedural defect under Section 100 CPC, it chose to address the erroneous interpretation because it had the potential to mislead subordinate courts in future.

Why Section 68 Came Into Focus

The dispute related to competing sale deeds over the same parcel of land in Kerala.

The plaintiffs relied on a registered sale deed executed in 1978 to establish their title. The defendants disputed the genuineness of that document and relied on another sale deed executed in 1996.

The trial court accepted the plaintiffs' case after appreciating the oral and documentary evidence, including the testimony of one of the attesting witnesses to the 1978 sale deed. The first appellate court, however, reversed the decree after disbelieving the testimony of the attesting witness and holding that the execution of the 1978 document had not been satisfactorily proved.

When the matter reached the Kerala High Court in second appeal, the High Court restored the trial court's decree. In doing so, however, it proceeded on the footing that the proviso to Section 68 of the Evidence Act applied to the registered sale deed in question and interpreted the provision in a manner that the Supreme Court found legally unsustainable.

High Court's Interpretation

The High Court held that the proviso to Section 68 dispenses with the need to examine an attesting witness unless the execution of the document is "specifically denied."

According to the High Court:

• a mere denial in the written statement would not amount to a "specific denial";
• the executant must challenge the document through a separate suit, counterclaim or independent proceeding before the exception in the proviso ceases to operate.

On this reasoning, the High Court concluded that there was no necessity to insist on proof through an attesting witness.

The Supreme Court held that this entire exercise was legally flawed because Section 68 itself had no application to the document in question.

Section 68 Applies Only To Documents Required By Law To Be Attested

The Bench began its analysis with the language of Section 68 itself.

It pointed out that the provision opens with the words:

"If a document is required by law to be attested..."

This opening phrase is crucial.

The Court explained that Section 68 prescribes a special mode of proof only for those documents whose attestation is made compulsory by law. Such documents ordinarily cannot be received in evidence unless at least one attesting witness is examined to prove their execution, provided such a witness is alive and capable of giving evidence.

The proviso merely creates an exception by dispensing with this requirement for registered documents (other than wills), unless execution is specifically denied.

However, the Bench stressed that the proviso cannot operate independently of the main provision.

Since Section 68 applies only to documents requiring mandatory attestation, the proviso also remains confined to that category of documents.

Sale Deeds Are Outside Section 68

The Supreme Court then examined whether a sale deed is a document that requires compulsory attestation.

Referring to Section 54 of the Transfer of Property Act, the Bench noted that while a sale of tangible immovable property valued above ₹100 must necessarily be effected through a registered instrument, the law nowhere requires such an instrument to be attested.

The Court observed:

"It is not the requirement of law that the sale deed is to be attested by any attesting witness so as to prove the due execution by examining at least one attesting witness."

It therefore concluded:

"A sale deed being not required by law to be attested, the provisions of Section 68 of the Indian Evidence Act on the face of it is not applicable."

The Bench relied upon earlier Supreme Court decisions including Hans Raji v. Yosodanand and Bayanabai Kaware v. Rajendra Baburao Dhote, both of which had held that Section 68 has no application to sale deeds because attestation is not a statutory requirement for their validity.

Which Documents Are Covered?

The judgment clarifies that Section 68 is confined to documents where attestation is mandatory under substantive law.

Examples include:

• gift deeds executed under Section 123 of the Transfer of Property Act;
• mortgage deeds where the relevant statutory provision requires attestation;
• settlement deeds requiring compulsory attestation;
• wills, which occupy a special position because proof through at least one attesting witness remains mandatory irrespective of whether execution is disputed.

The Court observed that the phrase "execution of any document, not being a Will" occurring in the proviso refers only to documents falling within the ambit of Section 68 in the first place.

It cannot be interpreted to include every registered document.

Supreme Court Rejects High Court's Reading Of The Proviso

The Bench found that the High Court had misconstrued the proviso by treating it as an independent provision governing all registered documents.

According to the Supreme Court, this overlooked a basic principle of statutory interpretation that a proviso cannot enlarge the scope of the principal provision to which it is attached.

Quoting earlier precedents, the Court reiterated that a proviso ordinarily serves to qualify, explain or carve out an exception to the main enactment. It cannot create an entirely new rule extending beyond the substantive provision.

Applying this principle, the Court held:

“The proviso to Section 68 stipulates that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. A sale deed being not required by law to be attested, the provisions of Section 68 of the Indian Evidence Act on the face of it is not applicable,” observed the bench.

The Bench clarified the limited scope of the proviso to Section 68, noting that the provision applies only to those documents that require a mandatory attestation.

“The 'execution of any document, except a Will' means those documents which require compulsory attestation like a Gift deed, Mortgage deed, Settlement deed, etc., but it is not mandatory to examine any attesting witnesses in proof of such documents unless its execution is specifically denied."

Allowing the appeal, the Court made it clear that Section 68 applies only to documents that are mandatorily required by law to be attested, such as Wills (under Section 63 of the Indian Succession Act, 1925), Gift Deeds (under Section 123 of the Transfer of Property Act), and Mortgage Deeds. A sale deed, however, does not fall into this category. Section 54 of the Transfer of Property Act, 1882, requires a sale deed to be registered but does not mandate its attestation