Binanda Ch. Baruah vs Bhadreswar Koch @ Bhadreswar Deka

J.N. Sarma, J.—The substantial question of law is as follows:

Whether in the absence of any material particulars of alleged fraud committed by the Plaintiff in the pleadings of the Defendant and in view of Defendant''s admission of execution of the sale deeds viz. Exhibits- 2, 3, 4, 5, 6 and 7, the learned first appellate Court committed errors in law in holding that the Plaintiff ought to have proved the execution of the sale deeds by examining any of the attesting witness and the Deed Writer?

The facts are that the Plaintiff purchased vide Exhibit-2 a plot of land from Defendant on 2.1.79. Vide Exhibit-3 anOrs. plot of land was purchased from Defendant on 18.2.80. Vide Exhibit-4 the Plaintiff purchased a plot of land. By Exhibit-4 the Defendant sold a plot of land to one Sailesh Kumar Saharia on 25.4.73. Subsequently it was purchased vide Exhibit-5 on 27.4.81. Vide Exhibit-6 the Defendant sold anOrs. plot of land to one Shri Santi Ram Deka on 1.7.75. That plot of land was purchased by the Plaintiff vide Exhibit-7 on 16.9.81. On the basis of these sale deeds, the present suit was filed by the Plaintiff for declaration of right, title and recovery of possession. The suit was decreed by the learned Munsiff in Title Suit No. 15 of 1987. There was an appeal being Title Appeal No. 6/96 and by judgment dated 28.8.96 the appeal was allowed and the suit was dismissed. The lower Appellate Court in paragraph-12 of the Judgment found as follows:

In these circumstances the Plaintiff ought to prove execution of these Sale Deeds by examining any of the attesting witnesses and the Deed Writer.

Exhibits-2, 3, 4, 5, 6 and 7 (sale deeds) have been exhibited without objection and marked as exhibits. It is the further finding of the learned Judge that the Defendant did not deny the signatures in Exhibits-2, 3, 4 and 6 as indicated above. But he denied the execution. If the Exhbits-2, 3, 4 and 6 are found to be valid deeds of sale, the Plaintiff will have right, title and interest over the land. The learned Judge found that as the execution was denied and fraud was alleged, as such it was the duty of the Plaintiff to prove the deed of sale by examining the attesting witness and the Deed Writer. The findings of the learned Judge has been indicated above. The question is that whether this is the correct proposition of law. If this is not the correct proposition of law it must be held that these deeds were duly proved and that too without objection. This aspect of the matter is not res-integra. In Engineers (Overseas) Corporation Pvt. Ltd. and Another Vs. West Bengal Financial Corporation and Another, a Division Bench of the Calcutta High Court pointed out that where the execution of the deed is not specifically denied and it was alleged that it was due to undue influence, the evidence of attesting witness and/or scribe is not necessary as a sale deed is not a document required to be proved as provided in Section 68 of the Evidence Act. Further when the plea of fraud was taken by the Defendant, the burden shall be on the Defendant. Mere denial of the execution (but admitting the signatures of the deed) will not thrust a liability on the Plaintiff to prove the deeds by examining the Scribe and/or the attesting witness. Because a sale deed can be proved as required u/s 67 of the Evidence Act. That also is the decision of the Supreme Court in Smt. Hans Raji Vs. Yosodanand, where the Supreme Court, inter-alia, pointed out as follows: Sale deed does not require attestation and therefore, it can not be questioned on ground of non-examination of any attesting witness--Even if some ''marginal'' witness had attested the document, it would not attract Section 68. The Supreme Court further pointed out that in such a situation there will be no occasion to invoke Section 68 of the Evidence Act to find out whether the execution of such document was specifically denied by the adverse party or not. In paragraph-10 of the judgment that law has been laid down by the Apex Court.

Section 67 of the Evidence Act does not lay down any particular mode of proving either any particular writing or signature in the hand of a particular person. The fact that a particular person has written a particular writing can be proved by direct evidence by those persons who have seen it signing on the particular document irrespective of the person who has written the same. Different modes have been laid down for proving such a document. u/s 67 the execution of a document is to be proved by evidence as enumerated therein. When a party admits execution of a document, it will be not necessary to prove the document by examining Scribe or attesting witness. In this particular case, the signatures on these documents were admitted. In H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, the Supreme Court pointed out the difference between Section 67 and 68 of the Evidence Act. In Dattatraya Vs. Rangnath Gopalrao Kawathekar (Dead) by his legal representatives and Others, the Supreme Court pointed out as follows:

Ordinarily nobody signs a document without knowing its contents. However, if the person signing the document pleads ignorance then in certain circumstances it may be necessary for the party seeking to prove the document to satisfy the Court that the executant had knowledge of its contents.

That being the position of law, this appeal is allowed. The judgment and decree of the lower Appellate Court shall stand set aside and quashed and the judgment of the learned Munsiff shall be restored to file.

The records shall be sent down to the Court below.

I have heard Shri K.P. Pathak, learned advocate for the Appellant and Shri B.B. Gogoi, learned advocate for the Respondents.