Section 68 Applies Only to Mandatorily Attested Documents, Not Registered Sale Deeds

Source: Supreme Court  

Why in News? 

A Bench of Justice JB Pardiwala and Justice Manoj Misra, in R. Veronica & Anr. v. Rudrayani Devaki (D) Through LRs. S. Satha Kumar & Ors. (2026), held that the statutory requirement under Section 68 of the Indian Evidence Act of proving a document by examining an attesting witness applies only to documents that are required by law to be attested, and that a registered sale deed does not fall within this category. 

What was the Background of R. Veronica v. Rudrayani Devaki (2026) Case? 

• The dispute concerned competing sale deeds over the same parcel of land in Kerala. 
• The plaintiffs relied on a registered sale deed executed in 1978 to establish their title, while the defendants disputed its genuineness and relied on another sale deed executed in 1996. 
• The trial court accepted the plaintiffs' case after appreciating the oral and documentary evidence, including the testimony of one of the attesting witnesses to the 1978 sale deed. 
• The first appellate court reversed the decree, disbelieving the testimony of the attesting witness and holding that the execution of the 1978 document had not been satisfactorily proved. 
• In second appeal, the Kerala High Court restored the trial court's decree, proceeding on the footing that the proviso to Section 68 applied to the registered sale deed and interpreting the provision in a manner the Supreme Court later found legally unsustainable. The High Court also decided the second appeal without framing substantial questions of law under Section 100 CPC. 

What were the Court's Observations? 

• On the High Court's reasoning: The High Court had held that the proviso to Section 68 dispenses with the need to examine an attesting witness unless execution of the document is "specifically denied," and that a mere denial in the written statement would not amount to such specific denial unless challenged through a separate suit or proceeding. On this basis, the High Court held there was no necessity to insist on proof through an attesting witness. 
• On the scope of Section 68: The Court held that Section 68 prescribes a special mode of proof only for documents whose attestation is made compulsory by law, and that such documents ordinarily cannot be received in evidence unless at least one attesting witness is examined, provided such a witness is alive and capable of giving evidence. 
• On the proviso to Section 68: The Court held that the proviso, which dispenses with this requirement for registered documents (other than wills) unless execution is specifically denied, cannot operate independently of the main provision, and therefore remains confined to documents requiring mandatory attestation. 
• On sale deeds and Section 54 of the Transfer of Property Act: The Court held that while a sale of tangible immovable property valued above ₹100 must be effected through a registered instrument, the law nowhere requires such an instrument to be attested, and that Section 68 is therefore not applicable to a sale deed. 
• On the High Court's misconstruction of the proviso: The Court held that the High Court erred in construing "execution of any document, not being a Will" to include a registered sale deed, and reiterated the principle that a proviso cannot enlarge the scope of the main provision to which it is attached. 
• On the procedural defect under Section 100 CPC: The Court held that the High Court had committed an egregious error in deciding the second appeal without framing a substantial question of law, and remitted the matter back to the High Court to rehear it after framing a substantial question of law. 

What is Section 67 of BSA? 

Section 67 of BSA– Proof of execution of document required by law to be attested: 

• Main provision: 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. 
• Proviso: 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. 
• Corresponding provision under old law: Similar to Section 68 of the Indian Evidence Act, 1872.