Report No. 69

III. Section 68-Some Matters of Detail

32.23. Section 68-Document in possession of opposite party-Section 89-Recommended to amend section 68.-

Apart from these changes of substance, a few other points of detail need to be considered. Where the original of a document is in the possession of the opposite party, it is not clear whether section 68 will apply, though, under section 89, there is a presumption about the genuineness of a document which is not produced after notice. There is, in this respect, some likelihood of a conflict between section 68 and section 89. Such a case should be expressly excluded from section 68, which should be amended for the purpose.

32.24. Recommendation.-

We, therefore, recommend that in section 68, a suitable exception should be inserted on the above point.

32.25. Section 68-Case of witness not available without expense or kept out of the way.-

While excluding cases where the witness is incapable of giving evidence, section 68 does not exclude the case of a witness who is kept out of the way by the adverse party, or whose attendance cannot be procured without unreasonable expense or delay. We are of the view, that such a case should also be excluded, as it stands on the same footing1 as that of a witness who cannot given evidence. We recommend that the section should be amended accordingly.

1. Cf. section 33.

32.26. Proviso to be omitted.-

Under the proviso to section 68, it shall not be necessary to call an attesting witness in the case of a document, not being a will. Where the document has been registered, unless its execution is specifically denied. This proviso becomes redundant if our recommendation to confine the main paragraph of the section to wills is accepted1 and we accordingly recommend that the proviso should be omitted. Of course this is subject to dissent by Shri Mitra.

1. See supra.

32.27. Section 68-Use for collateral purpose.-

Then there is some controversy as to how far a document required to be attested can be given in evidence for a collateral purpose (without complying with the provisions of section 68). One view is, that the section applies only if the document is relied upon as one requiring attestation, so that non-compliance with the section does not prevent its use for any other or collateral purpose (for example, to prove some admission contained in the document)1.

1. (a) Shyam Lal v. Lakshmi Narain, AIR 1939 All 269.

(b) Mahadeo Prasad v. Gaut= Mohammad, ILR 46 All 649.

(c) See also Moti Chand v. Latta Prasad, ILR 40 All 256.

32.28. This view, however, is not shared by some High Courts, which have held that the section applies in all cases, in view of its stringent wording1. The latter view appears to be the correct one on the language of the section. The question, then, is whether the section should be amended to allow the use of such documents in evidence for collateral purposes. While there is something to be said in favour of such a course, in view of the reason underlying the rule (intention of the parties), it does not appear to be practicable to frame any such limitation in precise and unambiguous words. The matter should, therefore, be left as it is.

1. (a) Shib Chandra Singh v. Gour Chandra Paul, AIR 1922 Cal 160. (b) Awadh Ram Singh v. Mahbub Khan, AIR 1924 Oudh 255.

32.29. Section 68-Applicability to secondary evidence.-

Another question which has arisen is whether section 68 applies where secondary evidence is to be given of a document under section 65. Presumably, the words "shall not be used as evidence", would cover secondary evidence also. It has been so held in a number of decision1. This seems to be the rule in England also2. It is unnecessary to disturb the language of the section on this point.

1. (a) Sheikh Kartmmullah v. Gudar, AIR 1925 All 56.

(b) Jadunath v. Isar, AIR 1939 Pat 47.

(c) Brijnath Singh v. Joginder, AIR 1952 MB 146.

2. Phipson Evidence, 9th Edn., p. 544, under Document Lost, destroyed, or cancelled".

32.30. Section 68-Use of document between third persons.-

The reasoning on which section 68 is based, is that the parties intended that the attesting witness should testify to the execution of the document in case of dispute. This reasoning cannot apply as between third persons, and, from that point of view, it is not easy to defend the application of section 68 to third persons. In view, however, of the fact that the section will now apply only to a limited class of documents, no change is recommended on this point.

32.31. Section 68 and Proof of attestation.-

It was held in an Allahabad case1 that under sections 68 to 72, it is not a necessary element in the proof of attestation that the signature of all the attesting witnesses of a will should be identified. It was also held that it was not necessary that the attesting witnesses should be able to identify the signature of each other or even to know each other, and hence, there can be no basis for the requirement that the witnesses should identify each other's signature. This position need not be disturbed.

1. Krishna Kumar v. Kayastha Pathsala, AIR 1966 All 570 (577) (DB).

32.32. Section 68 Proviso-Registration.-

In an earlier Report1 of the Law Commission, the following recommendation relevant to the proviso to section 68 was made:

"In the Registration Act, provision should be made that whenever attestation is required by law, at least one attesting witness should be examined at the time of registration. The executant who would be examined should also be asked about the signature of the attesting witnesses. If attestation is not proved, registration should be refused. If this requirement is introduced in the Registration Act, it will be necessary to make consequential amendments in section 68 of the Evidence Act."

1. 6th Report of the Law Commission (Registration Act), para. 66, last two sub-paragraphs. The draft of the provision proposed to be inserted in the registration Act will be found in draft sections 20(1)(b)(ii) and 20(2).

32.33. But, when the Registration Act was re-considered by the Law Commission this recommendation was not approved.1 Hence no change is needed in this respect.

1. 34th Report of the Law Commission (Registration Act).

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