An Analysis of Section 68 of the Indian Evidence Act, 1872: Proof of Execution of Attested Documents

An Analysis of Section 68 of the Indian Evidence Act, 1872: Proof of Execution of Attested Documents

Introduction

Section 68 of the Indian Evidence Act, 1872 (hereinafter "IEA") lays down a crucial rule regarding the mode of proving the execution of documents that are required by law to be attested. Attestation, in legal parlance, signifies the witnessing of the execution of a document by a certain number of persons as prescribed by the relevant statute governing that document. This provision is fundamental to the law of evidence as it ensures the genuineness and validity of documents that carry significant legal consequences, such as Wills, mortgages, and deeds of gift. This article aims to provide a comprehensive analysis of Section 68, its proviso, and its interpretation by the Indian judiciary, drawing upon statutory provisions and relevant case law.

The Mandate of Section 68: Proof of Execution of Attested Documents

Section 68 of the IEA stipulates:

“68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence: Provided 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.”[1, 15]

The main part of Section 68 establishes a mandatory requirement: if a document is one that the law requires to be attested, it cannot be used as evidence unless at least one attesting witness has been called to prove its execution. This condition applies if an attesting witness is alive, subject to the court's process, and capable of giving evidence.[12] The term "attested" is defined in Section 3 of the Transfer of Property Act, 1882, for documents governed by it, and Section 63(c) of the Indian Succession Act, 1925, for Wills. Generally, attestation involves the witness signing the document for the purpose of testifying to the signature of the executant, having seen the executant sign or affix their mark, or received a personal acknowledgment of the signature or mark from the executant.[16] The act of attestation must be done with the intent to attest (*animo attestandi*).[3, 16]

Documents typically requiring attestation under Indian law include:

  • Wills, under Section 63 of the Indian Succession Act, 1925.[16]
  • Mortgages, where the principal money secured is Rs. 100 or upwards, under Section 59 of the Transfer of Property Act, 1882.[16, 23]
  • Gifts of immovable property, under Section 123 of the Transfer of Property Act, 1882.[5, 16]

The Proviso to Section 68: Exception for Registered Documents (Excluding Wills)

The proviso to Section 68 carves out an important exception to the general rule. It states that it is not necessary to call an attesting witness to prove the execution of any document (other than a Will) if two conditions are met:

  1. The document has been registered in accordance with the provisions of the Indian Registration Act, 1908.
  2. Its execution by the person by whom it purports to have been executed is *not specifically denied*.[1, 11]

This proviso significantly eases the burden of proof for registered documents like deeds of gift or mortgage, provided their execution is not specifically challenged. However, Wills are explicitly excluded from the benefit of this proviso.[17]

Judicial Interpretation and Application of Section 68

Requirement of Calling an Attesting Witness: The General Rule

The Supreme Court and various High Courts have consistently emphasized the imperative nature of Section 68. If a document is required by law to be attested, its execution must be proved by calling at least one attesting witness, if available.[12] In Paramu Radhakrishnan v. Bharathan, the Kerala High Court observed that the stringent wording of Section 68 does not permit the use of a document required by law to be attested as evidence until it is proved strictly in accordance with the section.[12] Failure to comply with this mandate renders the document inadmissible for the purpose of proving the transaction it embodies.[11, 27]

Wills: A Special Category Requiring Strict Proof

Wills are treated with particular stringency under Section 68. The proviso explicitly excludes Wills, meaning that a Will must be proved by calling at least one attesting witness, if alive and available, regardless of whether it is registered or its execution is specifically denied.[17] The Supreme Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam reiterated that Section 63(c) of the Indian Succession Act, 1925, requires a Will to be attested by two or more witnesses, and Section 68 of the IEA mandates that at least one of these attesting witnesses be examined to prove the Will.[6] The Court clarified that the examination of one attesting witness must be sufficient to prove that both witnesses attested the Will in the manner required by law.[6]

Similarly, in K. Laxmanan v. Thekkayil Padmini And Others, the Supreme Court held that failure to examine attesting witnesses as mandated by Section 68 rendered deeds of will and gift legally ineffective.[8] The Court in Jagdish Chand Sharma v. Narain Singh Saini also reinforced the rigorous standards for proving Will execution under Section 63 of the Succession Act and Section 68 of the IEA.[4] The fact of registration of a Will, while a circumstance that may point to its genuineness, does not by itself dispense with the statutory requirement of proof under Section 68.[25, 26, 28] The propounder of the Will bears the onus of proving its due execution and attestation.[7, 9]

The "Specific Denial" Clause in the Proviso

For documents other than Wills, the applicability of the proviso hinges on whether the execution is "specifically denied." The Supreme Court in Rosammal Issetheenammal Fernandez (Dead) By Lrs. And Others v. Joosa Mariyan Fernandez And Others elaborated on this. In this case, concerning a gift deed, the Court found that there was a clear denial of execution by the plaintiff. Consequently, the proviso was held inapplicable, and the obligation to produce at least one attesting witness remained. Since no attesting witness was produced, the gift deed was not considered proved.[1, 15]

In Surendra Kumar v. Nathulal And Another, the Supreme Court held that where a registered deed of gift was not specifically denied by the donor (though challenged by a third party), the proviso to Section 68 applied, and it was not necessary to call an attesting witness.[5] The Gujarat High Court in Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel And Others reiterated that if the execution of a registered gift deed is specifically denied, it cannot be used as evidence unless an attesting witness is examined.[11]

The Allahabad High Court in Radha Ballab And Another v. Deoki Nandan And Others held that if any of the defendants to a suit denies that any of the alleged executants executed the deed, even if registered, the plaintiff must produce one of the attesting witnesses.[21] Similarly, in Vedachala Chettiar v. Ameena Bai Ammal And Others, the Madras High Court observed that if one executant admits execution of a mortgage deed but another co-executant specifically denies it, the deed is enforceable against the admitting party, but not against the denying party unless an attesting witness is called to prove execution against the latter.[22]

Consequences of Non-Compliance

The primary consequence of failing to comply with Section 68 is that the document "shall not be used as evidence."[1, 12] This means the document cannot be relied upon to establish the rights or obligations it purports to create. For instance, if a mortgage deed is not proved as per Section 68, it cannot be used to enforce the mortgage, though it might be admissible for a collateral purpose not requiring proof of attestation, a point of nuanced debate.[12] In Chhuttan Lal v. Shanti Prakash And Others, the success of the suit hinged on whether the gift deed was proved in accordance with Section 68.[20]

Interaction with Sections 69 and 71 of the Evidence Act

Section 68 must be read in conjunction with other provisions of the IEA, particularly Sections 69 and 71.

  • Section 69 IEA: Proof where no attesting witness found. This section provides an alternative mode of proof if no attesting witness can be found (e.g., all are dead, or cannot be found despite due diligence). In such cases, it must be proved that the attestation of at least one attesting witness is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.[13, 14, 18] The examination of a scribe as an attesting witness is generally not permissible under Section 68 or 69 unless the scribe also acted with *animo attestandi*.[3, 18]
  • Section 71 IEA: Proof when attesting witness denies the execution. If an attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.[4, 6] However, the Supreme Court has clarified that Section 71 is a safeguard and cannot be used to absolve the propounder of the duty to examine available attesting witnesses who are capable of proving due execution.[4, 6] It is not a provision to fill up lacunae deliberately left by not examining available attesting witnesses.

Attestation: Meaning and Intent (*Animo Attestandi*)

The courts have emphasized that for a person to be an "attesting witness," they must have signed the document with the intention of attesting it (*animo attestandi*).[3, 16] Merely signing a document as a scribe or for some other purpose, without the intent to witness the execution in the legal sense, does not make one an attesting witness.[3] As held in N. Kamalam (Dead) And Another v. Ayyasamy And Another, the signatures of a scribe do not fulfill the role of an attesting witness unless accompanied by the requisite intent to attest.[3] Similarly, the mere presence of signatures of individuals at the foot of an endorsement of registration of a Will does not automatically mean they acted as attesting witnesses; this must be proved.[28]

Registered Documents Other Than Wills

For registered documents like gift deeds or mortgage deeds, the proviso to Section 68 offers a significant concession. If their execution is not specifically denied, the formality of calling an attesting witness is waived.[5] However, this hinges critically on the absence of a "specific denial."[1, 15] The case of TRIMURTI CHARITABLE PUBLIC TRUST THR. v. MUNI KUMAR RAJDAN suggested that a trust deed, in the nature of a settlement deed, is required to be proved by an attesting witness, and its absence renders it inadmissible.[27] This must be understood in the context that if such a deed (which is attestable) is registered and its execution is not specifically denied, the proviso should apply. If execution is denied, or if the document is not registered, the main part of Section 68 would necessitate calling an attesting witness.

The Rationale and Significance of Section 68

The legislative intent behind Section 68 is to ensure the authenticity of documents that have serious legal implications and to prevent fraud and forgery. Attestation provides a safeguard by involving independent witnesses in the process of execution. For documents like Wills, which speak from death and are often susceptible to challenge on grounds of undue influence, fraud, or lack of testamentary capacity, the requirement of strict proof through attesting witnesses is particularly vital.[7, 9] The provision balances the need for reliable proof with practical considerations, especially through its proviso for registered documents whose execution is not in dispute.

Conclusion

Section 68 of the Indian Evidence Act, 1872, stands as a cornerstone for the proof of execution of documents required by law to be attested. Its mandate is clear: such documents, particularly Wills, demand proof through an attesting witness if available. The proviso offers a practical exception for registered documents (other than Wills) where execution is not specifically denied, thereby streamlining litigation. The Indian judiciary has consistently interpreted Section 68 to uphold the sanctity of attested documents while ensuring that the procedural requirements are met to prevent injustice. A thorough understanding of this provision, its exceptions, and its judicial exposition is indispensable for legal practitioners in India dealing with documentary evidence.

References

  1. Rosammal Issetheenammal Fernandez (Dead) By Lrs. And Others v. Joosa Mariyan Fernandez And Others (2000 SCC 7 189, Supreme Court Of India, 2000).
  2. Bhaiya Girja Datt Singh v. Gangotri Datt Singh (1955 AIR SC 346, Supreme Court Of India, 1955).
  3. N. Kamalam (Dead) And Another v. Ayyasamy And Another (2001 SCC 7 503, Supreme Court Of India, 2001).
  4. Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through Legal Representatives And Others (2015 SCC 8 615, Supreme Court Of India, 2015).
  5. Surendra Kumar v. Nathulal And Another (2001 SCC 5 46, Supreme Court Of India, 2001).
  6. Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003 SCC 2 91, Supreme Court Of India, 2002).
  7. H. Venkatachala Iyengar v. B.N Thimmajamma And Others (1958 SCC 0 141, Supreme Court Of India, 1958).
  8. K. Laxmanan v. Thekkayil Padmini And Others (2009 SCC 1 354, Supreme Court Of India, 2008).
  9. Shashi Kumar Banerjee And Ors. v. Subodh Kumar Banerjee Since Deceased And After Him His Legal Representatives And Ors. (1964 AIR SC 529, Supreme Court Of India, 1963).
  10. Pentakota Satyanarayana And Others v. Pentakota Seetharatnam And Others (2005 SCC 8 67, Supreme Court Of India, 2005).
  11. Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel And Others (Gujarat High Court, 2018).
  12. Paramu Radhakrishnan v. Bharathan (Kerala High Court, 1989).
  13. MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD THROUGH LRS.) (Supreme Court Of India, 2023) - First instance.
  14. MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD THROUGH LRS.) (Supreme Court Of India, 2023) - Second instance.
  15. Rosammal Issetheenammal Fernandez (Dead) By Lrs. And Others v. Joosa Mariyan Fernandez And Others (Supreme Court Of India, 2000) - Snippet from judgment.
  16. Haribandhu Athua And Ors. v. Radharmohan Alias Sridhar (Orissa High Court, 1990).
  17. Sarada v. Radhamani (Kerala High Court, 2017).
  18. Gondrala Sithamahalakshmi And Another v. Pulipati Rajarao And Others (Andhra Pradesh High Court, 2002).
  19. THUSHARA DICROOS v. PRIYANKA PAILY (Kerala High Court, 2022).
  20. Chhuttan Lal v. Shanti Prakash And Others (1980 SCC ONLINE ALL 655, Allahabad High Court, 1980).
  21. Radha Ballab And Another v. Deoki Nandan And Others (1931 SCC ONLINE ALL 245, Allahabad High Court, 1931).
  22. Vedachala Chettiar v. Ameena Bai Ammal And Others (1943 SCC ONLINE MAD 145, Madras High Court, 1943).
  23. Venkata Reddi v. Muthu Pambulu Naick (1920 SCC ONLINE MAD 281, Madras High Court, 1920).
  24. E. Suna Sheikh Davood Rowther v. N.R.M.N. Ramanathan Chettiar (1937 SCC ONLINE MAD 150, Madras High Court, 1937).
  25. Urmila Bai v. Janki Bai (Madhya Pradesh High Court, 2024).
  26. Ramsakhi v. Mahesh Kumar (Madhya Pradesh High Court, 2024).
  27. TRIMURTI CHARITABLE PUBLIC TRUST THR. v. MUNI KUMAR RAJDAN (Madhya Pradesh High Court, 2023).
  28. SMT DODDANANJAMMA v. SRI K NARASIMHA REDDY (Karnataka High Court, 2016).