The Supreme Court on Tuesday (July 14) has ruled that proviso to Section 68 of the Indian Evidence Act, 1872 has no application to a registered sale deed, since the law does not mandatorily require a sale deed to be attested by witnesses.

“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 a bench of Justice JB Pardiwala and Justice Manoj Misra, while setting aside a Kerala High Court judgment that had erroneously applied the proviso to Section 68 to a sale deed transaction.

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."

Background

The dispute traced back to a civil property dispute in Kerala concerning property ownership claimed through a registered sale deed.

The plaintiff filed a lawsuit to establish absolute title and possession of the disputed property, presenting the registered sale deed as primary evidence of ownership.

In response, the defendant filed a written statement explicitly denying that the sale deed was executed, claiming it was fraudulent. However, they did not file an independent suit or a formal counterclaim to legally void the document. The Kerala High Court ruled against the sale deed's propounder because they had not called any attesting witnesses to court, reasoning that since the execution was "specifically denied" in the written statement, the proviso to Section 68 of the Evidence Act applied, making witness testimony mandatory to prove the deed.

The plaintiff then appealed to the Supreme Court, arguing that a sale deed does not legally require attestation in the first place, rendering the High Court's application of Section 68 fundamentally flawed.

Decision

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

“Prima facie it appears that the High Court misconstrued the expression “execution of any document, not being a Will” appearing in the proviso to Section 68 of the Evidence Act. The High Court construed “execution of any document” to include a registered sale deed also. We are of the view that the High Court committed an error in understanding the true purport of the proviso to Section 68 of the Evidence Act. 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. In the case of a Will, the examination of one of the attesting witnesses is a necessary requirement, irrespective of whether its execution has been specifically denied or not. This is all that the proviso to Section 68 of the Evidence Act seeks to convey or clarify.”, the court observed.

The Court reiterated the cardinal rule of statutory interpretation that a proviso must be read in relation to the main provision it qualifies. "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," the Court observed.

Since, the High Court committed an egregious error in not framing the substantial question of law under Section 100 CPC, the Court remitted back the matter to the High Court to rehear the matter after framing a substantial question of law.

Appearances:

For the Appellant: Mr. Prakash Ranjan Nayak, AOR; Ms. Anupama Kumar, Advocate; Mr. Debasis Jena, Advocate.

For the Respondents: Mr. M. Gireesh Kumar, Advocate; Mr. Ankur S. Kulkarni, AOR; Mr. A.S. Naushad, Advocate; Mr. Sanjay Singh, Advocate; Ms. Sneha Mathew, Advocate.

Cause Title: R. VERONICA & ANR. VERSUS RUDRAYANI DEVAKI(D) THROUGH LRS. S. SATHA KUMAR & ORS.

Citation : 2026 LiveLaw (SC) 676

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