Madras HC: It is not necessary to examine attesting witness to prove agreement of sale

 If the revisions are allowed and the prayers are granted, the plaintiff will only prove that the signatures are of the attesting witnesses. As per Sections 68 to 71 of the Indian Evidence Act, the proof of the signatures of the attesting witnesses is necessary only when the document is required by law to be so attested. In case, the document does not require attestation, Sections 68 to 71 would be of no avail. This is clear from Section 72 of the Indian Evidence Act. {Para 17}

18. As per Section 72 of the Indian Evidence Act, an attested document, that is not required to be attested, would have to be proved as if it were unattested. An agreement of sale is not a document which requires attestation. Therefore, the proof that would be required as per Section 72 would be dehors the attestation in the said document. If that be the position of law, then by proving the signatures of the attesting witnesses, it does not take the plaintiff anywhere.

IN THE HIGH COURT OF MADRAS

C.R.P. (PD) Nos. 2927, 2930 of 2022, 

Decided On: 08.08.2024

S. Suresh Vs. K. Vijayalakshmi and Ors.

Hon'ble Judges/Coram:

V. Lakshminarayanan, J.

Citation: MANU/TN/4585/2024.

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Whether registration of a document by the power of attorney holder can be declared invalid if power of attorney is unregistered?

 As far as the decision in the case of Ashok Kumar (supra) of a coordinate bench of this Court, true it is that it has been held that if the document is presented for registration by a power of attorney holder, such a power of attorney must be registered one else the registration of the document at his instance would be void. However, this decision of the brother Judge can no longer be said to be laying down a correct proposition in view of the decision of the Supreme Court in the case of Rajni Tandon (supra). While reversing a decision of the Calcutta High Court on the lines similar to the one in the matter of Ashok Kumar (supra) it has been laid down in Rajni Tandon (supra) that registration of a document by a power of attorney holder is not invalid on the ground of absence of registration of the power of attorney. It, therefore, needs to be concluded that the decision in the matter of Ashok Kumar (supra) stood impliedly overruled by the decision in the matter of Rajni Tandon (supra). {Para 12}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 15 of 2020 and CA/426/2020 in SA 15/2020

Decided On: 03.03.2022

Mahendra Vs. Premsukh and Ors.

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Whether it is mandatory to attest the sale deed?

As regards the proof regarding sale-deed is concerned, as has been rightly pointed out by the lower courts, it is not a document which requires any attestation if one goes through the provisions of Section 54 of the Transfer of Property Act. Since Subhash and Ajay were the executants who had never disputed its execution and were not even called as witnesses by the appellants, no error can be found with the observation of the courts below in holding that since the plaintiff No. 1 was a person who had signed the sale-deed and was examined as a witness on behalf of the plaintiffs and had stated about execution of document and its registration, there was sufficient proof regarding its execution.

{Para 10}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 15 of 2020 and CA/426/2020 in SA 15/2020

Decided On: 03.03.2022

Mahendra Vs. Premsukh and Ors.

Hon'ble Judges/Coram:

Mangesh S. Patil, J.

Citation: MANU/MH/0720/2022

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Whether it is necessary to prove contents of documents 30 years old?

Presumption under Section 90 of the Evidence Act in respect of 30 years' old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1374 of 2008

Decided On: 17.07.2012

 Union of India (UOI) Vs.  Ibrahim Uddin and Ors.

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Whether will is presumed to be properly executed if it is registered?

There is one more aspect which needs consideration at this stage. The Will in question was a registered document. But, the registration of Will itself was only optional, in view of the provision of Section 18 of the Registration Act. The attestation of the Will, however, was not optional, in view of the provision of Section 63 of the Indian Succession Act. This would mean that there is no question of drawing of any presumption of due execution of a document that usually goes with a registered document, which is compulsorily registrable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 27 of 2001

Decided On: 23.08.2017

Ruprao Vs. Prabhawati and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2018(3) MHLJ 172

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Whether attestation by independent witnesses is necessary for recording information from accused regarding recovery of articles?

The edifice of the argument that information under Section
27 of the Evidence Act should be recorded in presence of
independent witnesses is founded on the perception that the
Investigating Officer might misuse his powers and forcibly extract
the information from the accused in custody. The said
apprehension has no basis whatsoever. Hon'ble the Supreme
Court in the cases of Deoman Upadhyaya (supra) as well as in
the case of State of Maharashtra Vs. Damu reported in(25 of 32)
(2000)6 SCC 269; (MANU/SC/0299/2000) held that
admissibility of the information given by an accused in custody
under Section 27 of the Evidence Act is based on the doctrine of
“confirmation by subsequent events”. The Section was given
an expansive meaning in Damu’s case in the following words:
“37. The basic idea embedded in Section 27 of the
Evidence Act is the doctrine of 'confirmation by
subsequent events. The doctrine is founded on the
principle that if any fact is discovered in a search made on
the strength of any information obtained from a prisoner,
such a discovery is a guarantee that the information
supplied by the prisoner is true. The information might be
confessional or non-inculcator in nature, but if it results in
discovery of a fact it becomes a reliable information.
Hence the legislature permitted such information to be
used as evidence by restricting the admissible portion to
the minimum. It is now well-settled that recovery of an
object is not discovery of a fact as envisaged in the
section. The decision of Privy Council in Pullukurn Kottayya
v. Emperor AIR 1947 PC 67 as the most quoted authority
for supporting the interpretation that the "fact discovered"
envisaged in the Section embraces the place from which
the object was produced, the knowledge of the accused as
to it, but the information given must relate distinctly to
that effect.”
In view of the fact that the information becomes admissible
only to the extent of the part leading to the discovery of a fact,
the subsequent confirmation gives a guarantee about the sanctity
of such information. The facts discovered should be such which
are in exclusive knowledge of the accused and none else. If the
Investigating Officer, after recording information under Section 27
of the Evidence Act from an accused in his custody, recovers
some incriminating article from an open place accessible to all(26 of 32)
and sundry, the information and the discovery would loose
significance. Likewise, if the fact discovered is known to the
Investigating Officer in advance, then the discovery made in
furtherance of the subsequent information recorded under Section
27 at the instance of the accused would be inconsequential. The
only logical conclusion in these circumstances is that there is no
legal requirement of seeking attestation of the information
received from the accused under Section 27 of the Evidence Act
by independent witnesses. Attestation if any would be required
when discovery of the fact is made and memo thereof prepared.
The Hon'ble Supreme Court in the case of D.K.Basu Vs.
State of West Bengal reported in (1997)1 SCC 416;
(MANU/SC/0157/1997), gave numerous directions to be
followed as preventive measures in all cases of arrest and or
detention. The direction at Sr.No.10 of the said judgment is that
the arrestee may be permitted to meet his lawyer during
investigation though not throughout the investigation.
The entire endeavour of the learned counsel, who argued in
favour of the proposition that witnesses should be kept present to
attest the information memo prepared under Section 27 of the
Evidence Act, was based on the perception that the Investigating
Officer may indulge into use of force and third degree methods
for extracting the confession. The directions given by the Hon'ble
Supreme Court in D.K.Basu’s Judgment (supra) and the
consequent amendments brought around in the Cr.P.C.
particularly Sections 41-A, 41-B, 41-D, 50, 50-A, 53 and 54 are(27 of 32)
sufficient to alleviate these perceptions and apprehensions.
Furthermore, the accused, by leading appropriate evidence can
always challenge the sanctity of information recorded under
Section 27 of the Evidence Act if such information is recorded
under threat, duress or by coercion. It is essential to note that in
the entire framework of Code of Criminal Procedure, which
governs the process of investigation, there is no requirement of
keeping witnesses present at the time of recording information of
the accused under Section 27 of the Evidence Act.
In the case of A.R.Antulay Vs. Ramdas Sriniwas Nayak
reported in AIR 1984 SC 718; (MANU/SC/0082/1984), the
Constitution Bench of the Hon’ble Supreme Court held that in the
absence of a specific provision made in the statute indicating that
offences will have to be investigated, inquired into, tried and
otherwise dealt with according to that statute, the same will have
to be investigated, inquired into, tried and otherwise dealt with
according to the Criminal Procedure Code.
In other words, Criminal Procedure Code is the parent
statute which provides for investigation, inquiry and trial of cases
by Criminal Courts of various designations and there is no
provision in the Cr.P.C. requiring attestation of the information
recorded under Section 27 of the Evidence Act by independent
witnesses.
Reportable
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Leave To Appeal No. 94 / 2017
State of Rajasthan

V
Mangal Singh 

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Whether execution and attestation of will can be disproved on basis of contents of will?

The only other aspect of the matter to which Mr. Damle adverts is his submission that the Will is "suspicious" because the bequest is, he says, to the Executors. He encourages me to read with him the Will in this fashion and to hold that because the Will makes provision for payment to Mr. Damania and Mr. Pikale of their legal costs and gives them the discretion to decide the amount and direction of the charitable bequests, that it is, in fact, a bequest to them. To begin with, this has nothing whatever to do with the due execution of the Will. It relates to the contents of the Will. This does not in and of itself disprove the due execution and attestation of the testamentary instrument.

IN THE HIGH COURT OF BOMBAY

Testamentary Suit No. 28 of 1995 in Testamentary Petition No. 41 of 1995

Decided On: 09.06.2016

 Kirit Navnitlal Damania and Ors. Vs. Anuradha Anil Bhagwat and Ors.

Coram:G.S. Patel, J.

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How nomination differs from will?

There are additional problems too. The 'statutory testament' is not subject to the rigour of theSuccession Act. It does require witnesses, but not the discipline mandated by Section 63 of the Indian Succession Act. A nomination, though said to be a 'testament', requires no probate or other proof 'in solemn form'. Yet it is said to be a will. Witnesses need not be in the presence of the nominator. Yet it is said to be a will. Witnesses need not act at the instance of the nominator. Yet it is said to be a will. Witnesses need not see the nominator execute the nomination. Yet it is said to be a  will. No nomination can be assailed on the ground of importunity, fraud, coercion or undue influence;Section 61 of the Indian Succession Act is wholly defenestrated, as is Section 59. Yet it is said to be a will. There can be no codicil to a nomination. Yet it is said to be a will. In short, a nomination, in the Kokate formulation, is some sort of 'super-will', one that partakes of none of the defining traits of a properly executed will and none of the tests of its validity, one that is never displaced by a later, properly made will that deals with the very same property. Mr. Pai asks that we should place ourselves in the 'armchair of the nominator'. That, as it happens, is the same furniture used by a testator, and it simply cannot be that the view from that seat depends on the nature of the document before the executant. There is no particular form for a will, but there are requirements attendant to its proper making. These do not apply to all nominations: even the requirement of witnesses is a matter of prudence rather than statute. If that be so, no nomination per se requires attestation, and if that be so, it is admissible in evidence under Section 68 of the Evidence Act, 1872 without the evidence of any witness (simply because a witness to a nomination is not, in any sense, an 'attesting witness'). But no will can be so read in evidence without such evidence. From the fundamental definitions to the decisions cited, it is clear that a nomination only provides the company or the depository a quittance. The nominee continues to hold the securities in trust and as a fiduciary for the claimants under the succession law. Nominations under Sections 109Aand 109B of the Companies Act and Bye-Law 9.11 of the Depositories Act, 1996 cannot and do not displace the law of succession, nor do they open a third line of succession. This is the consistent view of the Supreme Court in Khanchandai, Shipra Sengupta and of our Court in Gustad Commissariat and Antonio Joao Fernandes, all decisions that preceded Kokate; and the submission made in paragraph 9 of Kokate was correctly placed and was in line with those decisions. Those decisions were all binding on the Kokate Court. They were neither noticed nor considered. The Kokate Court could not have taken a view contrary to those decisions. Kokate is, therefore, per incuriam.

Bombay High Court

Jayanand Jayant Salgaonkar vs Jayashree Jayant Salgaonkar And 9 ... on 31 March, 2015

Bench: G.S. Patel

Citation;2015(5) MHLJ647

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Whether advocate can attest copy as true copy in absence of delegation of said power?

 Even otherwise from the perusal of the power of attorney of the Advocate, it will be revealed that there is no delegation of authority empowering the counsel to attest the copy of the petition as a true copy under his signature. It is well settled that the power of the agent is circumscribed within the framework of the authority given by the principal. In the absence of specific delegation as to the attestation of the copy to be a true copy under the signature of the authorised agent, the Advocate is not empowered to attest it. Consequently, there is no substance in this argument either.

 To sum up, the petition being not attested under the petitioner's own signature, the mandatory provision of Part 2 of Section 81(3) has not been complied with in the case before me and so the petition is liable to be dismissed in the terms of Section 86 of the Act.

Rajasthan High Court

Bhikha Bhai vs Lalshanker And Ors. on 10 February, 1978

Equivalent citations: AIR 1978 Raj 193, 1978 (11) WLN 45

Bench: M Joshi

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Whether party to document is debarred from attesting a document which is required by law to be attested?

 It has been laid down that it would defy common sense, if a party to a deed could also attest the same. Thus, a party to an instrument cannot be a valid attesting witness to the said instrument, for the reason, that such party cannot attest its own signature. (Vide: Kumar Harish Chandra Singh Deo & Anr. v. Bansidhar Mohanty & Ors., AIR 1965 SC 1738).

The first respondent lent money to the appellant and obtained a mortgage deed from him in the name of the second respondent. The first respondent was himself one of the two attesting witnesses. On the failure of the appellant to repay the amount, the first respondent instituted a suit and the suit was decrees by the High Court. In his appeal to the Supreme Court, the appellant contended that : (i) the mortgage deed was not validly attested and (ii) the first respondent was not entitled to sue. HELD : (i) A person who has lent money, for securing the payment of which a mortgage deed was executed by the mortgagor, but who was not a party to the deed, could be an attestor. [156C, G-H]

There is a distinction between a person who is -a party to a deed and a person who, though not a party to the deed is a party to the transaction and the latter is not incompetent to attest the deed. The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. Though, neither the definition of "attested" in s. 3 nor s. 59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it, since the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execu- tion of the deed, it must be inferred that a party is debarred from attesting a document which is required by law to be attested. Where, however, a person is not a party to the deed, there is no prohibition in law to the proof, of the execution of the document, by that person. 

Supreme Court of India

Kumar Harish Chandra Singh Das & ... vs Bansidhar Mohanty And Ors on 5 May, 1965

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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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