The Bombay High Court has reaffirmed that registration of a document does not absolve the proponent from producing an attesting witness when its execution is specifically denied. This ruling reinforces the foundational principle that proof of execution under the Evidence Act cannot be circumvented by mere registration, even where the document is otherwise validly recorded.
Background & Facts
The Dispute
The dispute centers on the validity of a gift deed executed in favor of Chandan Mohan Mathrani (Respondent No. 1) over a property owned by Sheela Mohan Mathrani (Deceased Plaintiff). The plaintiff alleged that the gift deed was procured through fraud, coercion, and undue influence after her signature was obtained on a power of attorney under false pretenses. The power of attorney, executed on 18 January 2018, purportedly authorized Chandan to gift the property to himself, which he did the following day.
Procedural History
- 2018: Original suit filed by Sheela Mohan Mathrani seeking declaration that the power of attorney and gift deed were void.
- 2024: Trial Court dismissed the suit, holding plaintiff failed to prove fraud, coercion, or undue influence.
- 2025: District Judge dismissed the first appeal, affirming the Trial Court’s findings.
- 2026: Second Appeal filed before Bombay High Court challenging the legal correctness of the lower courts’ application of Section 68 of the Evidence Act.
Relief Sought
The appellants sought a declaration that the power of attorney and gift deed were null and void, along with injunction against the respondents from dealing with the suit property. They also sought to exclude the gift deed from evidence on grounds of non-compliance with Section 68 of the Evidence Act.
The Legal Issue
The central question was whether the proviso to Section 68 of the Indian Evidence Act, 1872 applies to a registered gift deed when its execution is specifically denied, and whether the failure to examine an attesting witness renders the document inadmissible.
Arguments Presented
For the Petitioner
Mr. Jaydeep Deo argued that the gift deed, though registered, could not be admitted in evidence because its execution was specifically denied by the plaintiff. He relied on Veena Singh v. District Registrar and Dattatray Narayan Aher v. Bhaskar Narayan Aher to assert that mere admission of signature does not equate to execution. He emphasized that the proviso to Section 68 only dispenses with the need for an attesting witness if execution is not denied, and that the lower courts erred in treating registration as conclusive proof.
For the Respondent
Mr. Yuvraj Narvankar contended that the issue of execution denial was never pleaded before the lower courts. He argued that the plaintiff’s case was confined to fraud and undue influence, not denial of execution. He further submitted that the deceased plaintiff and her husband were educated, competent, and had previously executed similar documents in favor of the appellant herself, undermining claims of coercion. He also noted that the plaintiff’s failure to examine her husband, who witnessed the power of attorney, warranted an adverse inference.
The Court's Analysis
The Court undertook a meticulous analysis of Section 68 and its proviso, distinguishing between mere signature and actual execution. It held that execution requires voluntary assent to the document’s contents, not merely affixing a signature. The Court cited Veena Singh to affirm that signing a document under misrepresentation or without understanding its terms does not constitute valid execution.
"Execution consists in signing a document written out and read over and understood, and does not consist of merely signing a name upon a blank sheet of paper."
The Court further relied on Rosammal Issetheenammal Fernandez to stress that a denial of execution must be clear, specific, and pleaded in the pleadings - not inferred from vague allegations. However, in this case, the Court found that the plaintiff never denied the execution of the gift deed itself. The gift deed was executed by Chandan as attorney-in-fact, not by the deceased plaintiff personally. Therefore, the requirement to prove execution of the gift deed by the deceased plaintiff did not arise.
The Court then turned to the power of attorney. While the plaintiff challenged its character as obtained by fraud, she did not specifically deny its execution. The Trial Court and Appellate Court found that the deceased plaintiff and her husband were competent, literate, and had previously engaged in similar transactions. The failure of the plaintiff to examine her husband, who witnessed the power of attorney, was deemed fatal to her case. The Court held that the concurrent findings of fact on fraud and undue influence were not open to interference in a Second Appeal under Section 100 of the CPC.
The Verdict
The appellant’s Second Appeal was dismissed. The Court held that Section 68 did not bar the use of the gift deed because its execution by the deceased plaintiff was not in issue. The lower courts’ findings on fraud and undue influence were upheld as concurrent findings of fact, and no substantial question of law was established.
What This Means For Similar Cases
Execution Denial Must Be Explicit and Plead
- Practitioners must explicitly plead denial of execution in pleadings to trigger the requirement of an attesting witness under Section 68.
- Vague allegations of fraud or coercion do not constitute a specific denial of execution.
- Courts will not infer denial from general challenges to document validity.
Registration Alone Is Not Conclusive
- Even registered documents require proof of execution if denial is pleaded.
- The proviso to Section 68 is conditional: registration removes the need for an attesting witness only if execution is not denied.
- Practitioners must prepare to call attesting witnesses if execution is contested, regardless of registration.
Adverse Inference for Non-Examination of Key Witnesses
- Failure to examine a witness who was present at execution - especially a co-executant or witness - invites adverse inference.
- In property disputes involving family members, courts will scrutinize conduct and prior similar transactions to assess credibility.
- Affidavits in lieu of examination-in-chief must be filed by parties who are available to testify.
