The Supreme Court has held that a High Court cannot decide a second appeal under Section 100 of the Code of Civil Procedure (CPC) without first formulating substantial questions of law.
The bench of Justice J.B. Pardiwala and Justice Manoj Misra ruled that Section 68 of the Indian Evidence Act, which governs proof of documents required by law to be attested, does not apply to registered sale deeds because such deeds are not legally required to be attested.
The litigation arose from a property dispute involving 13 cents of land in Kerala. The original plaintiffs sought a declaration of title, recovery of possession of a portion of the property, and cancellation of a sale deed executed in 1996 in favour of the defendants. According to the plaintiffs, the property had already been sold through a registered sale deed in 1978 and was subsequently conveyed to them in 1979. They alleged that the 1996 sale deed executed by the original owner in favour of the defendants was void because the vendor had already parted with title years earlier.
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The defendants, however, disputed the authenticity of the earlier sale deed, contending that it was fabricated and that they had lawfully acquired title under the later registered conveyance.
The trial court accepted the plaintiffs’ case, declared the later sale deed void, recognised the plaintiffs’ ownership, directed recovery of possession, and ordered removal of structures raised by the defendants on the disputed land.
The First Appellate Court reversed the decree. It concluded that the plaintiffs had failed to satisfactorily prove the execution of the earlier sale deed and found the testimony of the attesting witness unreliable. Consequently, it dismissed the suit.
The Kerala High Court, in second appeal, restored the trial court’s decree. While doing so, it interpreted the proviso to Section 68 of the Indian Evidence Act to hold that a document need not be proved through an attesting witness unless its execution was specifically denied by the executant in a separate proceeding.
The Supreme Court held that the High Court committed a fundamental procedural error by deciding the second appeal without formulating any substantial question of law, as mandated by Section 100 CPC and Order XLII Rule 2 of the Code.
The Bench reiterated that the existence of a substantial question of law is the very foundation of the High Court’s jurisdiction in a second appeal. Merely entertaining or deciding the appeal without identifying such questions renders the judgment legally unsustainable. Referring to a consistent line of precedents, the Court observed that the statutory requirement is mandatory and cannot be dispensed with.
Accordingly, the Court held that the High Court’s judgment was vitiated and liable to be set aside solely on this ground.
Although the procedural defect was sufficient to dispose of the appeal, the Supreme Court proceeded to address what it described as two “egregious errors” in the High Court’s interpretation of the Evidence Act, noting that leaving the errors uncorrected could mislead subordinate courts.
The Bench clarified that Section 68 of the Indian Evidence Act applies only to documents that are required by law to be attested, such as wills, gift deeds, mortgages, and settlement deeds.
A registered sale deed, however, falls under Section 54 of the Transfer of Property Act and is not a document that must be attested by law. Therefore, the evidentiary requirement of examining an attesting witness under Section 68 has no application to an ordinary registered sale deed.
The Court relied on its earlier decisions in Hans Raji v. Yosodanand and Bayanabai Kaware v. Rajendra Baburao Dhote, both of which had recognised that registered sale deeds stand outside the scope of Section 68.
The Supreme Court specifically disapproved the High Court’s interpretation that denial of execution must be made through a separate suit or counterclaim before the proviso to Section 68 becomes applicable.
The Bench observed that this interpretation was legally unsustainable because the proviso cannot be read independently of the main provision. A proviso merely qualifies the principal provision and cannot enlarge its scope.
Since Section 68 itself is confined to documents that are legally required to be attested, its proviso cannot be invoked to create independent evidentiary rules governing documents like registered sale deeds.
The Court emphasised that reading the proviso as applicable to all registered documents would amount to expanding the parent provision beyond its legislative intent.
The judgment contains an elaborate discussion on the principles governing interpretation of provisos. The Court reiterated that a proviso serves only to explain, qualify, or carve out an exception to the principal enactment. It cannot travel beyond the scope of the main provision or create substantive rights independent of it.
Applying this principle, the Court concluded that the proviso to Section 68 operates only in respect of documents that are compulsorily attestable under law and has no relevance to registered sale deeds.
Allowing the appeal, the Supreme Court set aside the Kerala High Court’s judgment and remanded the second appeal for fresh adjudication. It directed the High Court to formulate appropriate substantial questions of law before hearing the matter afresh and requested that the appeal be disposed of within three months from receipt of the Supreme Court’s order. The Registry was also directed to circulate the judgment to all High Courts. Â
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