Section 68 Evidence Act Inapplicable To Registered Sale Deeds As Law Doesn't Require Their Compulsory Attestation: Supreme Court

"A sale deed being not required by law to be attested, the provisions of Section 68 of the Indian Evidence Act on the face of it is not applicable." Supreme Court, in a significant ruling dated July 14, 2026, held that Section 68 of the Indian Evidence Act—which prescribes the method of proving documents required by law to be attested—does not apply to registered sale deeds.

A bench of Justice J.B. Pardiwala and Justice Manoj Misra observed that since the Transfer of Property Act does not mandate the attestation of a sale deed, there is no requirement to examine an attesting witness to prove its execution, even if the document is registered.

The dispute arose from a suit for declaration of title and recovery of possession regarding property in Kerala, where the plaintiffs claimed ownership based on a 1978 sale deed, while the defendants relied on a subsequent 1996 sale deed. Though the Trial Court decreed the suit in favor of the plaintiffs, the First Appellate Court reversed this decision after finding the testimony of the attesting witness (PW3) unreliable. The Kerala High Court subsequently allowed the Second Appeal and restored the Trial Court's decree, leading the defendants to approach the Apex Court.

The primary question before the court was whether the High Court could decide a Second Appeal under Section 100 of the CPC without formulating a substantial question of law. Furthermore, the court was called upon to determine if the requirements of Section 68 of the Evidence Act and its proviso regarding "specific denial" of execution apply to registered sale deeds.

Formulation Of Substantial Question Of Law Is Mandatory Under Section 100 CPC

The Supreme Court emphasized that the formulation of a substantial question of law is a non-negotiable condition precedent for the High Court to exercise jurisdiction in a Second Appeal. Referring to the mandate of Section 100 of the CPC and Order XLII Rule 2, the bench noted that a Second Appeal cannot be decided on merely equitable grounds or by interfering with pure questions of fact.

The bench reiterated that a judgment passed in a Second Appeal without the formulation of such questions is "vitiated in law," as held in Biswanath Ghosh v. Gobinda Ghosh. The court observed that the High Court had set aside the First Appellate Court’s judgment and restored the original decree without identifying or answering the legal questions necessary to maintain the appeal.

High Court Erred In Applying Section 68 Evidence Act To Sale Deeds

The court found that the High Court had erroneously focused on Section 68 of the Evidence Act to justify the validity of the 1978 sale deed. The bench clarify that Section 68 only governs documents that are "required by law to be attested," such as Wills under the Indian Succession Act or Gift deeds under the Transfer of Property Act.

"Section 68 of the Evidence Act as a whole has no application to a registered sale deed. The High Court should have concentrated only on the grounds that weighed with the First Appellate Court."

Sale Deeds Under Transfer Of Property Act Do Not Require Compulsory Attestation

Citing Section 54 of the Transfer of Property Act, 1882, the court pointed out that "sale" is defined as a transfer of ownership for a price, and for immovable property valued over one hundred rupees, it must be made by a registered instrument. However, unlike a Gift deed under Section 123 of the same Act, the law does not require a sale deed to be attested by witnesses to be valid.

The bench noted that even if "marginal witnesses" sign a sale deed, it does not transform the document into one that is "required by law to be attested." Consequently, the rigorous requirements of proving execution via an attesting witness, as stipulated in the main body of Section 68 of the Evidence Act, are not triggered for sale transactions.

Scope Of The Proviso To Section 68 Regarding "Specific Denial"

The High Court had previously held that a denial of execution must be "specific" and raised through a separate suit or counterclaim to attract the proviso of Section 68. The Supreme Court rejected this interpretation, stating that the High Court misconstrued the expression "execution of any document, not being a Will" appearing in the proviso.

"The proviso to Section 68 cannot create an independent rule as regards “specific denial” for all attested documents... the proviso to Section 68 carves out an exception only in respect of documents that are required to be mandatorily attested by law."

The court explained that in the case of a Will, the examination of an attesting witness is always necessary, regardless of whether execution is denied. For other documents that require attestation (like Gifts or Mortgages), the proviso waives the need for an attesting witness if the document is registered and execution is not specifically denied. Since a sale deed falls outside this entire category, the High Court’s reliance on the proviso was misplaced.

Ultimately, the Supreme Court concluded that the High Court’s decision was legally flawed both on procedural grounds under the CPC and substantive grounds under the Evidence Act. The bench set aside the impugned judgment and remitted the matter back to the Kerala High Court for a de novo hearing of the Second Appeal, with directions to dispose of the matter within three months after formulating appropriate substantial questions of law.

Date of Decision: 14 July 2026