Report No. 69

II. Section 68-The Principal Question

32.5. Section 68, main paragraph.-

Section 68 provides that where a document is required by the law to be attested, it shall not be used as evidence until at least one attesting witness has been called for proving its execution (if the attesting witness is available).

32.6. The rule is so stringent that even where the document is lost and secondary evidence is allowed to be led, the formality of calling the attesting witness has to be observed.1 This stringent and harsh rule may work hardship in a few cases. It must, however, be noted that the section is confined to documents "required by law to be attested". Further, the proviso takes registered documents out of its scope.

1. Ananta Raguram v. Raja Bommadevera, AIR 1958 AP 418 (422), para. II (DB). See also judanath v. Isar, AIR 1939 Pat 47; Karimullan v. Gudar, AIR 1925 All 56.

32.7. Documents requiring attestation.-

Documents requiring attestation are very few. Important examples of these are

(i) certain wills;1

(ii) mortgages for Rs. 100 or more, in cases where sections 58 and 59 of the Transfer of Property Act, 1882 extend;

(iii) gifts of immovable property, in cases where sections 123-124 of the Transfer of Property Act, 1882 extend.

1. See sections 57, 58 and 63 of the Indian Succession Act, 1925.

32.8. Though the Stamp Act, in defining a "bond" speaks of attestation, a bond is not a document required by law to be attested within1 the meaning of section 68.

1. (a) Mott Ram v. Ratna, AIR 1953 MB 158;

(b) Ram Dutt v. Latta Prasad, AIR 1948 Oudh 258;

(c) Ramchandra v. Ihivan, AIR 1940 Nag 240.

32.9. Hardship caused by the present section.-

The rule in section 68 is very stringent as stated above, and occasionally causes hardship, inasmuch as it may not always be easy to call the attesting witness, from the point of view of expense and trouble. Should the law on the subject be liberalised? The reason underlying the rule requiring the attesting witness to be called is stated to be, that the parties to the document must be taken to have agreed that the document should not be given in evidence unless the attesting witness was called, when possible.

"Subject as hereinafter provided, in any proceedings, whether civil or criminal, any instrument to the validity of which attestation is requisite may, instead of being proved by an attesting witness, be proved as if no attesting witness were alive:

Provided that nothing in this section shall apply to the proof of Wills or other testamentary documents". The change in our Act, as recommended above, will be a similar one.

32.10 to 32.13. Practical difficulties.-

We can see from reported cases the hardships caused by the existing rigid provision1. We may also refer to Sarkar's suggestion to confine sections 68-72 to wills as in England. Sarkar has stated that he present law leads to perjury, and reform is long overdue.

1. See Sarkar's Evidence Act (1965), preface and also commentary on section 68.

32.14. The attesting witness is only an additional safeguard. Attestation is a safeguard at the time of execution. The best evidence would not necessarily be confined to an attesting witness. Even a non-attesting witness has seen the execution of the document. For this reason also we need not make evidence of the attesting witness compulsory.

32.15. It may be noted that the executant himself-though he may be a party to the suit-is not a compulsory witness. Even where the litigation is between third parties, the principal executant is not a compulsory witness.

32.16. An objection was raised that section 68 should not be disturbed, because-

(i) attesting witness is the best evidence of attestation, though not of execution, and

(ii) if we modify the section, then the requirement of attestation in the substantive law becomes futile. But the hardship caused by section 90, cannot be overlooked.

32.17. Objection answered.-

No doubt, after the insertion of the proviso in 1926 to section 68, the hardship is somewhat reduced, since registered documents are outside section 68. But if execution is specifically denied, this relaxation does not apply. Even a document to be used for part-performance (section 53A, Transfer of Property Act) may be hit by section 68, and it cannot be used as a shield unless section 68 is complied with.

32.17. No doubt, after the insertion of the proviso in 1926 to section 68, the hardship is somewhat reduced, since registered documents are outside section 68. But if execution is specifically denied, this relaxation does not apply. Even a document to be used for part-performance (section 53A, Transfer of Property Act) may be hit by section 68, and it cannot be used as a shield unless section 68 is complied with.

32.18. Further, there is no question of the requirement of attestation being futile. The attestation will, in any case, have to be proved. But, it is unjust to make it a compulsory requirement for proof of the document. This often may lead to injustice. There is no need to give undue importance to the attesting witness by making it compulsory to call the attesting witness. We must, however, add that one of us-Shri Mitra-is not in agreement with this recommendation.

32.19. Section 68 and section 90.-

There is another point which may be considered regarding the scope of the section. Section 90 entitles the Court to draw a presumption regarding ancient documents. The question is, whether, in the case of ancient documents governed by section 90, but required to be attested, section 68 would still apply so as to make the calling of the attesting witness obligatory. The decision in a Calcutta case1is to the effect that the presumption under section 90 cannot be drawn in the case of a document required to be attested, and that section 68 could not be controlled by section 90.

1. Govinda Chandra v. Patin Behari, A.I.R. 1927 Cal, 102. 104 (M. N. Mukheril J., with Greaves J. concurring).

32.20. It has been held1 that though, under section 90, a document can be presumed to have been properly attested and executed, still, where direct evidence satisfying section 68 is available, the proof of the document should not be left to section 90.

1. Raghubax Singh v. Sanwal Singh, 61 IC 125, cited in Monir Evidence, 4th Edn., Vol. I p. 443.

32.21. Recommendation as to section 68 and section 90-relationship.-

It would seem that the position requires to be stated clearly. The proper course, in our view, would be to allow section 90 to override section 68. If the beneficial provisions of section 90 can apply to execution by the main executant, it would be anomalous if they are not available merely because the document is required to be attested; attestation is, after all, merely intended to be in aid of execution by the principal. If there are other circumstances justifying a presumption of genuineness, calling the attesting witness should not be insisted upon. Moreover, the presumption under section 90 is discretionary, and there is no risk of injustice since, if the court does not wish to draw the presumption, it will not do so on the facts.

32.22. It is, therefore, desirable to modify the section so as to provide that section 68 does not affect section 90, and we recommend that section 68 should be amended accordingly.

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