Analysis of Section 68 of the Indian Evidence Act, 1872

An Exposition of Section 68 of the Indian Evidence Act, 1872: Proving Attested Documents

Introduction

Section 68 of the Indian Evidence Act, 1872 (hereinafter "the Act"), occupies a pivotal position in the Indian legal system concerning the adduction of documentary evidence. It prescribes a mandatory procedure for proving the execution of documents that are, by law, required to be attested. The legislative intent behind this provision is to ensure the genuineness and authenticity of such documents, thereby safeguarding against fraud and fabrication, particularly in transactions carrying significant legal consequences. This article undertakes a comprehensive analysis of Section 68, exploring its substantive requirements, the scope of its proviso, its specific application to testamentary and non-testamentary instruments, and its interaction with other relevant statutory provisions. The discourse will be substantiated by an examination of pertinent judicial pronouncements from the Supreme Court of India and various High Courts, which have meticulously interpreted and applied this crucial section over the decades.

The Core Mandate of Section 68: Proving Execution

Section 68 of the Act 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.”

The Imperative Nature of Section 68

The language of Section 68 is peremptory. The phrase "shall not be used as evidence" underscores its mandatory character.[1] The Supreme Court in Rosammal Issetheenammal Fernandez (Dead) By Lrs. And Others v. Joosa Mariyan Fernandez And Others emphasized that the main part of Section 68 "puts an obligation on the party tendering any document" to call at least one attesting witness.[2] Similarly, in K. Laxmanan v. Thekkayil Padmini And Others, the Apex Court reiterated the necessity of strict compliance with Section 68 for proving deeds of will and gift.[3] The Kerala High Court in Paramu Radhakrishnan v. Bharathan observed that the "imperative and stringent wording of S. 68 makes it clear that it does not permit the use of a document which is required by law to be attested as evidence until it is proved strictly in accordance with the provisions of the section."[4]

Defining "Execution" and "Attestation"

The term "execution" in the context of attested documents, as interpreted by courts, encompasses not merely the act of signing by the executant but also the entire process that gives legal validity to the document, including its due attestation. The Calcutta High Court in Jaikarandas Agarwalla v. Protapsing Agarwalla held that in the case of a document which is not valid without attestation, "execution not only means signing by the executant but it means and includes attestation as well which is the last of the series of acts necessary to give completeness and formal validity to the deed."[5] This view was echoed in Rajani Kanta Barui v. Bonbehari Sarkar, where it was stated that "execution" in the proviso to Section 68 means all acts giving validity to the document, including attestation for a mortgage bond.[6]

"Attestation," as defined in Section 3 of the Transfer of Property Act, 1882, involves the signing of the document by two or more witnesses, each of whom has seen the executant sign or affix his mark, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant. Similar principles govern the attestation of wills under Section 63(c) of the Indian Succession Act, 1925. An "attesting witness" within the meaning of Section 68 must have seen the document executed and signed it as a witness.[7]

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

The proviso to Section 68 carves out an exception to the general rule, applicable to documents other than wills. It dispenses with the requirement of calling an attesting witness under specific conditions.

Conditions for Invoking the Proviso

For the proviso to apply, two conditions must be met:

  1. The document (not being a will) must have been registered in accordance with the provisions of the Indian Registration Act, 1908.
  2. The execution of the document by the person by whom it purports to have been executed must not have been "specifically denied."
The Supreme Court in Surendra Kumar v. Nathulal And Another applied this proviso to a registered deed of gift. The Court held that since the deed was registered and its execution was not specifically denied by the donor, it was admissible without calling an attesting witness.[8]

The Crucial Element of "Specific Denial"

The interpretation of "specifically denied" is critical to the application of the proviso. A mere general or vague denial may not suffice. The Supreme Court in Rosammal Issetheenammal Fernandez provided significant guidance on this aspect.[2] The Court observed that the finding of specific denial "should be clearly specific and not vaguely or negatively drawn" and "must also take into consideration the pleadings of the parties." In that case, the pleading alleged that the gift deed and settlement deed were "brought into existence fraudulently without the knowledge and consent" of the executant and that his signature was forged. The Court held, "The denial cannot be more strong than what is recorded here. Once when there is denial made by the plaintiff, it cannot be doubted that the proviso will not be attracted."[9]

The Gujarat High Court in Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel And Others found that a gift deed could not be used as evidence because its execution had been specifically denied by the plaintiffs, thus attracting the main part of Section 68 and necessitating the examination of an attesting witness.[10] The Orissa High Court in Haribandhu Athua And Ors. v. Radharmohan Alias Sridhar also dealt with a situation involving an alleged gift deed where its validity and due execution were contested.[11]

Proving Wills: The Unwavering Application of Section 68

The proviso to Section 68 explicitly excludes wills from its ambit. Therefore, the execution of a will must invariably be proved by calling at least one attesting witness, if available, regardless of its registration. This underscores the solemnity attached to testamentary dispositions.

The Supreme Court in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh And Others emphasized that Section 68 of the Evidence Act requires that the execution of a will be proved by at least one attesting witness.[12] Similarly, in Janki Narayan Bhoir v. Narayan Namdeo Kadam, the Court held that Section 68 mandates the examination of at least one attesting witness to prove a will.[13] The Court in K. Laxmanan also affirmed the applicability of Section 68 to wills.[3]

Synergy with Section 63 of the Indian Succession Act, 1925

Section 63 of the Indian Succession Act, 1925, lays down the substantive requirements for the due execution of a will, including the testator's signature or mark and attestation by at least two witnesses. Section 68 of the Evidence Act provides the mode of proving compliance with these requirements. The two sections are read conjunctively. As held in Janki Narayan Bhoir, the attesting witness called under Section 68 must speak not only to the testator's signature but also to the fact that the other witness (or witnesses) signed in the testator's presence, thereby satisfying the dual attestation requirement of Section 63.[13] The Madras High Court in B.V. Srinivasan v. B.V. Tulasiraman clarified that Section 68 does not alter the requirements of Section 63(c) of the Succession Act; the single attesting witness examined must be able to depose to all that is required by Section 63(c) for valid execution.[14]

The Propounder's Duty to Dispel Suspicious Circumstances

When proving a will, the propounder bears the onus of satisfying the conscience of the court that the will is the last testament of a free and capable testator. This burden is heavier if suspicious circumstances surround the execution of the will. In the landmark case of H. Venkatachala Iyengar v. B.N Thimmajamma And Others, the Supreme Court elaborated on the nature of suspicious circumstances and the propounder's duty to remove them.[15] This principle was reiterated in Yumnam Ongbi Tampha Ibema Devi[12] and K. Laxmanan,[3] where the presence of suspicious circumstances compounded the failure to prove due execution under Section 68.

Application to Other Documents Requiring Attestation

Besides wills, other documents like deeds of gift of immovable property (Section 123, Transfer of Property Act, 1882) and mortgage deeds where the principal sum secured is Rs. 100 or upwards (Section 59, Transfer of Property Act, 1882) are required by law to be attested. Section 68 applies to these documents, subject to its proviso. Cases like Surendra Kumar (gift deed),[8] Rosammal (gift deed),[2] Patel Ramanbhai (gift deed),[10] K. Laxmanan (gift deed),[3] Rajani Kanta Barui (mortgage deed),[6] and Hare Krishna Panigrahi v. Jogneswar Ponda (mortgage bond)[16] illustrate the application of Section 68 to such instruments.

Interplay with Correlated Provisions of the Evidence Act

Section 68 does not operate in isolation and is often read with Sections 69, 70, and 71 of the Act.

Section 69: Proof When No Attesting Witness is Found

Section 69 provides for the mode of proof when no attesting witness can be found (e.g., if they are dead, cannot be found, or have become incapable of giving evidence). It states:

"If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
The Supreme Court in Babu Singh And Others v. Ram Sahai Alias Ram Singh clarified that Section 69 applies only when attesting witnesses cannot be found despite diligent efforts, including exhausting all legal processes under Order 16 Rule 10 of the Code of Civil Procedure to secure their attendance.[17] The Supreme Court in MOTURU NALINI KANTH v. GAINEDI KALIPRASAD (DEAD THROUGH LRS.) also referred to Sections 68 and 69 together.[18]

Section 70: Admission by Party to Attested Document

Section 70 states: "The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested." However, the scope of "admission of execution" under Section 70 has been subject to judicial interpretation. In Rajani Kanta Barui, the Calcutta High Court held that if an admission of signature by the mortgagor is coupled with an express denial of due attestation, the mortgagee is not entitled to the benefit of Section 70 and must still prove due attestation as per Section 68.[6] The Madras High Court in Karpagam v. E. Purushothaman, citing other decisions, suggested that examination of an attesting witness might be unnecessary when parties have not joined issue on the validity or genuineness of a will and the signature is admitted, potentially invoking Section 58 of the Act (facts admitted need not be proved).[19] However, this must be reconciled with the stringent requirements for proving wills, especially if any doubt regarding due execution or attestation persists.

Section 71: Proof When Attesting Witness Denies or Fails to Recollect Execution

Section 71 provides a recourse if an attesting witness, when called, denies or does not recollect the execution of the document. It permits the execution to be proved by "other evidence." The Supreme Court in Janki Narayan Bhoir characterized Section 71 as a safeguard, but clarified that it does not override the fundamental requirements of Sections 63 of the Succession Act and 68 of the Evidence Act, especially if other attesting witnesses are available but not examined.[13] The Calcutta High Court in Jaikarandas Agarwalla viewed Section 71 as an exception to Section 68, holding that "execution" in Section 71 includes attestation, allowing both to be proved by other evidence if the attesting witness turns hostile or denies execution.[5] The Madras High Court in R.V.NATARAJAN (DECEASED) v. N.SAKUNTHALA described Section 71 as an enabling and residuary provision, but one that does not relieve the propounder of the primary mandate under Section 68.[20]

Consequences of Non-Compliance and Admissibility

The direct consequence of failing to comply with Section 68 is that the document "shall not be used as evidence." This means it cannot be relied upon to establish the rights or obligations purported to be created thereunder. In Paramu Radhakrishnan, the Kerala High Court held that a document not proved in accordance with Section 68 cannot be used as evidence even for a collateral purpose.[4] Similarly, in Patel Ramanbhai Mathurbhai, the gift deed was held inadmissible for want of proof as per Section 68.[10] The Madras High Court in K.VENKATESAN v. C.K.NATARAJ dealt with the issue of marking a will, where the trial court noted that there is no stipulation under Section 68 that a will should be marked *only* through an attesting witness, distinguishing marking from formal proof.[21] However, for the document to be *used as evidence* to prove its contents and execution, compliance with Section 68 is essential.

Conclusion

Section 68 of the Indian Evidence Act, 1872, serves as a critical gatekeeper for the admissibility and use of attested documents in legal proceedings. Its mandatory nature, particularly for wills, ensures a rigorous standard of proof, thereby upholding the sanctity and genuineness of such instruments. The proviso offers a practical exception for registered documents (other than wills) where execution is not specifically denied, balancing formality with expediency. Judicial interpretations have consistently reinforced the stringent requirements of Section 68, particularly emphasizing the importance of specific pleadings in the context of the proviso, and the propounder's comprehensive duty when proving wills, including the dispelling of any suspicious circumstances. The interplay of Section 68 with Sections 69, 70, and 71 of the Act provides a structured framework for proving attested documents under various scenarios. Adherence to Section 68 is not a mere procedural formality but a substantive requirement, failure of which renders the document unusable as evidence, significantly impacting the rights of the parties involved. It remains a vital provision in maintaining the integrity of documentary evidence in the Indian judicial process.

References