Supreme Court: Sale Deed Does Not Require Proof Of Attestation As Per Section 68 of Evidence Act

There is no gainsaying that Section 68 of Evidence Act 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.{Para 46}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6526 OF 2024

R. VERONICA & ANR. Vs RUDRAYANI DEVAKI(D) THROUGH LRS. S. SATHA KUMAR & ORS.

Citation: 2026 INSC 703

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If both the attesting witnesses of will are dead, how execution of will is to be proved?

 When both attesting witnesses to a will are dead, the will can still be proved under Section 69 of the Indian Evidence Act, 1872. This section provides an alternative mechanism for proving documents when attesting witnesses cannot be found or are unavailable.

When Section 69 Applies

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When it is not necessary to examine attesting witness to prove execution of gift deed?

Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered, is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific denial, the proviso comes into play but if there is denial, the proviso will not apply.

We think that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution. What has to be specifically denied is the execution of the document. 

18. The question which elicited the above answer gives a clear understanding of the case of the Defendants as they understood their case. Defendants have no case that no document was executed by Anandan Nambiar. Their case is that the document is not valid because it had been executed under circumstances which would render the document invalid. There is no specific denial of the execution of the document. The Respondents can seek the aid of the proviso to Section 68 of the Evidence Act. No defect in not calling an attesting witness to prove the document. We do not think that we can ignore Ext. A1 gift deed on the ground that no attesting witness has been called for, for proving the gift deed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7528 of 2019 

Decided On: 23.09.2019

Govindbhai Chhotabhai Patel  Vs. Patel Ramanbhai Mathurbhai

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Whether evidence of attesting witness can be discarded if he has not read the content of will?

I have gone through the evidence of Mr. Ghadage, attesting witness and I found it reliable, cogent consistent and stood to the test of cross examination. Thus, there is a compliance of provisions of Section 68 of the Evidence Act. However, evidence of this witness has been disbelieved by the learned appellate Court, only on the ground that, this witness did not read the contents of the Will and put his signature at the instance of Mr. Salunke (scribe). The learned appellate Court thus held that since the attesting witness knew nothing about the contents of the Will, his evidence was falling short of the requirements of Section 68 of the Evidence Act.

19. In my view, the reasons for discarding the evidence of this attesting witness are unfounded and not acceptable. The requirement of Section 68 of the Evidence Act is to prove the execution of document, which is required by law to be attested. Therefore, what is to be proved, is execution of the Will and not the contents of it. Thus, the learned Appellate Court has committed an error by discarding the evidence of this witness.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 538 of 2015 and Civil Application No. 353 of 2012

Decided On: 01.03.2019

 Chandrakala Krishna Dhole Vs.  Bhimrao Dattu Kadam and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(4) MHLJ 949

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Whether legatee can prove execution of will?

All these three requirements by its nature would show the mandate to be complied with in the execution of a Will or Codicil apart from a document required by law to be attested. A mere attestation as in the case of a document required by law to be attested is not sufficient in the matter of execution of a Will or Codicil and it should satisfy the requirements as enumerated under clauses (a) and (b) to Section 63 of the Indian Succession Act, besides the requirement as enumerated in clause (c). Different treatments were given to a Will and Codicil apart from other document required by law to be attested by insisting compliance under Clause (a) to (c) to S. 63 of Indian Succession Act. Apart from the above said requirement regarding execution of a Will or Codicil, in the matter of proof also, a different treatment was given apart from a document required by law to be attested under S. 68 of Indian Evidence Act. The reason is quite obvious that the question of genuineness of signature of testator and due execution of a Will or Codicil would arise only after his or her death. The Clause (b) to S. 63 mandates that the signature or mark of the testator or the person who signed on behalf of the testator, "shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will" which stands for affixture of signature by the testator or person under his instruction, in his presence, to give effect to the document with full knowledge at his free volition, free from any vitiating circumstance. It is by virtue of clause (b) to S. 63 of the Act, a burden cast upon the proponder to explain and clear out all suspicious circumstance attached to the execution of the Will or Codicil. But no such requirement is mandated in the matter of a document required by law to be attested, such as gift, settlement, etc. When legatee is permitted to stand as an attesting witness that itself amounts to a suspicious circumstance within the meaning of clause (b) to S. 63 of Indian Succession Act when read along with the other two mandate - clauses (a) and (c) to S. 63 of the Act Needless to say that a Will or Codicil attested by legatees alone or the person interested with the legatees who holds a fiduciary relationship with the legatee/legatees would itself amounts to suspicious circumstance attached to its execution, absence of an independent attesting witness to the document is so fatal to the bequest under the document. It would destruct the legislative intention demanding compliance of mandate incorporated both under S. 68 of Indian Evidence Act and S. 63 of Indian Succession Act and their evidence or attestation would stand as self serving, though there is no provision debarring attestation by a legatee as far as an unprivileged Will of a Hindu is concerned. Atleast one of the attesting witness should be an independent witness and his examination cannot be avoided if he is capable of giving evidence and amenable to the process of the court for proving the Will or Codicil in accordance with the mandate under S. 68 of the Evidence Act. In short, a legatee under the Will or a person who is interested in the bequest cannot be an independent witness for the purpose of attestation to a last testament either as a Will or Codicil and hence mere examination of a legatee who stand as one of the attesting witness would not be a sufficient compliance of mandate under S. 68 of the Evidence Act. In the instant case, the only witness examined to prove the due execution of Ext. A4 is the first defendant and the Will was executed in favour of his children by giving major portion of the property and hence he cannot be an independent witness for the purpose of mandate under S. 68 of Indian Evidence Act in proof of execution of Ext. A4 Will.

IN THE HIGH COURT OF KERALA

S.A. No. 717 of 2002

Decided On: 29.01.2019

Raveendran Nair Vs. Raman Nair

Hon'ble Judges/Coram:

P. Somarajan, J.

Citation: AIR 2019 Kerala 91

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When execution of will can be proved without examining attesting witness?

In Thayyullathil Kunhikannan (supra) a Division Bench of the Kerala High Court while considering the provisions of Sections 58 and 68 of the Evidence Act as to the requirement to call an attesting witness, held--

Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence. Order 8 Rule 5 C.P.C. deems the execution of the Will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the Will.

Andhra High Court

Darisi Masthanamma vs Mandiga Rama Krishna on 24 January, 2006

Equivalent citations: AIR 2006 AP 286, 2006 (2) ALD 534

Bench: S A Reddy

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When propounder of will is not permitted to adduce evidence as per S 71 of Evidence Act?

 Viewed in premise, Section 71 of the 1872 Act has
to be necessarily accorded a strict interpretation. The
two contingencies permitting the play of this provision,
namely, denial or failure to recollect the execution by the
attesting witness produced, thus a fortiori has to be
extended a meaning to ensure that the limited liberty
granted by Section 71 of 1872 Act does not in any
manner efface or emasculate the essence and efficacy of
Section 63 of the Act and Section 68 of 1872 Act. The
distinction between failure on the part of a attesting
witness to prove the execution and attestation of a Will
and his or her denial of the said event or failure to
recollect the same, has to be essentially maintained. Any
unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the
predication of Section 63 of the Act and Section 68 of the
1872 Act, otiose. The propounder can be initiated to the
benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced
and in clear terms either denies /deny the execution of
the document or cannot recollect the said incident. Not
only, this witness/witnesses has/have to be credible and
impartial, the evidence adduced ought to demonstrate
unhesitant denial of the execution of the document or
authenticate real forgetfulness of such fact. If the
testimony evinces a casual account of the execution and
attestation of the document disregardful of truth, and
thereby fails to prove these two essentials as per law, the
propounder cannot be permitted to adduce other
evidence under cover of Section 71 of the 1872 Act. Such
a sanction would not only be incompatible with the
scheme of Section 63 of the Act read with Section 68 of
the 1872 Act but also would be extinctive of the
paramountcy and sacrosanctity thereof, a consequence,
not legislatively intended. If the evidence of the witnesses
produced by the propounder is inherently worthless and
lacking in credibility, Section 71 of Act 1872 cannot be
invoked to bail him (propounder) out of the situation to
facilitate a roving pursuit. In absence of any touch of
truthfulness and genuineness in the overall approach,
this provision, which is not a substitute of Section 63 (c )
of the Act and Section 68 of the 1872 Act, cannot be
invoked to supplement such failed speculative endeavour
45.2 Section 71 of the 1872 Act, even if assumed to be
akin to a proviso to the mandate contained in Section 63
of the Act and Section 68 of the 1872 Act, it has to be
assuredly construed harmoniously therewith and not
divorced therefrom with a mutilative bearing. This
underlying principle is inter alia embedded in the
decision of this Court in the Commission of Income Tax,
Madras Appellant Versus Ajax Products Limited
Respondent AIR 1965, Supreme Court 1358.
[REPORTABLE]
 IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL Nos.4181-4182 OF 2015
(ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014
JAGDISH CHAND SHARMA .
 Vs.
NARAIN SINGH SAINI (DEAD) 
THROUGH HIS LRs & Ors.

Citation;AIR 2015 SC2149
AMITAVA ROY, J.

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Whether sale deed requires attestation and if attested whether attesting witnesses should be examined?

Proviso to Sec. 68 is not applicable as sale deed never requires

any attestation. Sec. 68 Evidene Act applies only if the document

requires attestation by law. Hence, Sec. 68 proviso need not be

invoked, even if adverse party denies execution of document or

not.

SUPREME COURT OF INDIA

HANS RAJI (SMT),  v. YOSODANAND, 

citation;AIR 1996 SC 761

Civil Appeal No. 11236 of 1995

Decided On: 24.11.1995

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