counsel appearing for the respective parties. Since the decision in the present case with regard to
the challenge thrown to both the impugned orders dated August 5, 2016 and September 06, 2016 is
dependant on the scope and purport of Section 68 of the evidence Act, the same is set out
hereinbelow :-
“ Proof of execution of document required by law to be attested: If a document is
required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting
witness alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a Will, which has been registered in accordance with
the provisions of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the
person by whom it purports to have been executed is specifically denied”.
The above proviso to Section 68 of the Evidence Act was incorporated by Section 2 of the
Indian Evidence ( Amendment) Act, 1926. A bare reading of the proviso to Section 68 of the
Evidence Act shows that the rigor of the section has been relaxed to some extent and it is, therefore,
not required to call an attesting witness, except in a case of a Will , unless the execution of the
registered document itself is specifically denied. This view is fortified by the decision of the
Supreme Court in the case of Khushalchand Swarup Chand Zabak Jain v. Sureshchandra
Kanhaiyalal Kochar @ Anr., reported in 1995 supp.(2) SCC 36, as well the said decision of this
Court in the case of Kumaresh Majumder(supra). In this case, from a reading of paragraph 19 of
the plaint in the suit it is clear that the plaintiff-petitioner has not disputed the execution of the said
deed of gift by the defendant-opposite party no.1. She has alleged that at the time of execution of
the said deed of gift the defendant-opposite party no.1 was suffering from various diseases.
Therefore, I am of the view that in the facts of the present case, the learned Court below was right
to hold that when the said deed of gift is a registered instrument and the defendant-opposite party
no.1 executant himself admitted to have executed the same, the execution of the said deed of gift
was duly proved even in the absence of any of the two witnesses and the same was correctly
marked as an exhibit. Accordingly, I do not find any merit in the challenge either against the firstimpugned order dated August 5, 2016 refusing to expunge the said deed of gift, marked an Exhibit-
“A” of the suit, from the list of exhibits or the second impugned order dated September 06, 2016.
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present : Justice Ashis Kumar Chakraborty
C.O. 4225 of 2016
Kakali Ghosh
Vs.
Madan Mohan Ghosh & Anr.
Judgement on : 20.12.2016
Citation:AIR 2017(NOC) 187 Cal
The present revisional application at the instance of the plaintiff in Title Suit No. 131 of
2015, pending before the Court of the learned Civil Judge, Senior Division, Sealdah is directed
against the orders dated August 5, 2016 and September 6, 2016 passed by the learned Court below.
By the first impugned order dated August 5, 2016 the learned Court below rejected the application
filed by the plaintiff-petitioner praying for, expunging the registered deed of gift dated July 4, 2015
(hereinafter referred to as “the said deed of gift”) executed by the defendant-opposite party no.1, in
favour of the defendant-opposite party no.2, as Exhibit “A” from the list of exhibits of the suit. By
the second impugned order dated September 6, 2016 the learned Court below rejected, the
application filed by the plaintiff petitioner under Section 151 of the Code of Civil Procedure, 1908
praying for, recalling of the first impungned order dated August 05, 2016 and further directing
closure of the cross-examination of the defendant no. 1 opposite party.So far as the challenge against the first impugned order dated August 5, 2016 the same
raises a question of law that whether in view of the proviso to Section 68 of the Evidence Act, 1872
if the execution of a registered deed of gift is admitted by the donour himself the same can be
exhibited in a suit, in the absence of any evidence being adduced by any of the attesting witnesses.
In the present case, the plaintiff-petitioner in her suit claimed a declaration that the said deed of gift
executed by the defendant-opposite party no.1 transferring of a portion of his property situate at
premises no. 12/1, Ganguli Para Lane, Kolkata is void, invalid and inoperative and not binding
upon her and liable to be cancelled. In the plaint it is the case of the plaintiff-petitioner that at the
time of execution of the said deed of gift the defendant-opposite party no.1 was suffering from
parkinson, neuroepileptic, renal disorder dease, hiper tension and he also has a pacemaker. The said
deed of gift is duly registered under the Registration Act, 1908 witnessed by two witnesses. At the
trial of the suit, the defendant-opposite party no.1 adduced evidence in his examination in chief by
way of affidavit evidence, he proved his signature on the said deed of gift and also stated that he
has himself executed the said deed of gift. Thereafter, the said deed of gift was tendered and
exhibited as Exhibit- “A” of the suit, without any objection being raised on behalf of the plaintiffpetitioner.
On September 6, 2016 the plaintiff-petitioner moved an application praying for, before
the learned Court below praying for, expunging of the said registered deed of gift from the list of
exhibits in the suit. By the order dated August 5, 2016 the learned Court below held that in view of
the proviso to Section 68 of the Evidence Act, in the present case when the defendant-opposite
party no.1 admitted the execution of the said registered deed of gift, the absence of any of the two
witnesses shall not stand in the way of the same being proved and being marked as an exhibit.
Thus, as mentioned earlier, by the first impugned order dated August 5, 2016 the learned Courtbelow rejected the application filed by the plaintiff-petitioner for expunging the said registered
deed of gift from the list of exhibits in the suit.
Mr. Sukanta Chakraborty, learned advocate appearing for the petitioner in the present
revisional application strenuously contended that as per, Section 123 of the Transfer of Property
Act, a deed of gift in respect of an immovable property is not only required to be registered under
the Registration Act, 1908, but the same has to be attested by at least two witnesses. According to
him, as per section 68 of the evidence Act a deed of gift in respect of an immovable property,
unless being proved by anyone of the two attesting witnesses, the same cannot be proved or
exhibited in the suit. He strenuously contended that when the execution of the said deed of gift is
not proved by any of the two witnesses mentioned therein, the learned Court below fell into an
error of law in exhibiting the said deed of gift as an exhibit. He also contended that in the present
case when the said deed of gift could not be exhibited, the learned Court below committed a further
patent error of law in not allowing the application filed by the plaintiff-petitioner for expunging the
said registered deed of gift from the list of exhibits in the suit. According to Mr. Chakraborty, on
the above grounds already urged on behalf of the plaintiff petitioner, even the second impugned
order dated September 06, 2016 is also vitiated by failure of exercise of jurisdiction by the learned
Court. He also contended that the plaintiff-petitioner bona fide prayed for adjournment of the
further cross-examination of the defendant-opposite party no.1, but the learned Court below fell
into an error in rejecting such prayer of the plaintiff-petitioner and concluding the crossexamination
of the defendant-opposite party resulting in the plaintiff petitioner suffering injustice.
However, Mr. Sourav Sen, learned advocate appearing for the opposite parties vehemently
urged that the present revisional application has no merit. According to him, with the incorporation
of the proviso to Section 68 of the Evidence Act, when the said deed of gift is duly registered underthe Registration Act, 1908 and the execution of the same is not disputed by the plaintiff petitioner
proviso a registered deed of gift the execution of which is not the same could be proved and
exhibited by the donor himself by admitting the execution thereof. He strenuously contended in the
present case, the learned Court below committed no error of law either in exhibiting the said deed
of gift as Exhibit- “A” of the suit or in passing any of the impugned orders calling for any
interference by this Court. In support of his contentions, Mr. Sen relied on the judgement delivered
by Subhra Kamal Mukherjee, J. (as His Lordship then was) in the case of Kumaresh Majumder v.
Binapani Sarkar & Ors., reported in 2001(2) CHN 496. Mr. Sen further submitted that the plaintiffpetitioner
obtained sufficient opportunity to cross-examine the defendant-opposite party no.1 and
even on September 6, 2016 after rejecting the application for recalling of the order dated August
05, 2016, the learned Court below granted opportunity to the plaintiff-petitioner to cross-examine
the defendant-opposite party no.1, but the learned advocate of the plaintiff petitioner avoided to
cross examine the defendant no. 1. He submitted that in the facts of the present case the second
impugned order dated September 6, 2016 suffers from no infirmity and this Court should not
entertain the challenge to the second impugned order.
I have considered the facts of the present case and the arguments advanced by the learned
counsel appearing for the respective parties. Since the decision in the present case with regard to
the challenge thrown to both the impugned orders dated August 5, 2016 and September 06, 2016 is
dependant on the scope and purport of Section 68 of the evidence Act, the same is set out
hereinbelow :-
“ Proof of execution of document required by law to be attested: If a document is
required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting
witness alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a Will, which has been registered in accordance with
the provisions of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the
person by whom it purports to have been executed is specifically denied”.
The above proviso to Section 68 of the Evidence Act was incorporated by Section 2 of the
Indian Evidence ( Amendment) Act, 1926. A bare reading of the proviso to Section 68 of the
Evidence Act shows that the rigor of the section has been relaxed to some extent and it is, therefore,
not required to call an attesting witness, except in a case of a Will , unless the execution of the
registered document itself is specifically denied. This view is fortified by the decision of the
Supreme Court in the case of Khushalchand Swarup Chand Zabak Jain v. Sureshchandra
Kanhaiyalal Kochar @ Anr., reported in 1995 supp.(2) SCC 36, as well the said decision of this
Court in the case of Kumaresh Majumder(supra). In this case, from a reading of paragraph 19 of
the plaint in the suit it is clear that the plaintiff-petitioner has not disputed the execution of the said
deed of gift by the defendant-opposite party no.1. She has alleged that at the time of execution of
the said deed of gift the defendant-opposite party no.1 was suffering from various diseases.
Therefore, I am of the view that in the facts of the present case, the learned Court below was right
to hold that when the said deed of gift is a registered instrument and the defendant-opposite party
no.1 executant himself admitted to have executed the same, the execution of the said deed of gift
was duly proved even in the absence of any of the two witnesses and the same was correctly
marked as an exhibit. Accordingly, I do not find any merit in the challenge either against the firstimpugned order dated August 5, 2016 refusing to expunge the said deed of gift, marked an Exhibit-
“A” of the suit, from the list of exhibits or the second impugned order dated September 06, 2016.
Further, the portion of the second impugned order dated September 6, 2016 directing
conclusion of the cross-examination of the defendant opposite party no. 1, I find that the plaintiffpetitioner
was aware that the suit was fixed for further cross-examination of the defendant-opposite
party no.1, who is admittedly an octogenarian preson. When the application of the plaintiffpetitioner
for expunging the said registered deed of gift from the list of exhibits was rejected no
valid or substantial reason could be made out by the plaintiff-petitioner for not cross-examining the
defendant-opposite party no.1. In these facts, I am unable to find any infirmity even in the second
impugned order dated September 6, 2016 passed by the learned Court below refusing the prayer of
the plaintiff petitioner to adjourn the cross-examination of the defendant opposite party no. 1 and
directing his cross-examination to be concluded.
For all the foregoing reasons, the revisional application, being CO 4225 of 2016 stands
rejected. However, there shall be no order as to costs.
Urgent certified copy of the judgment, if applied for, be urgently made available to the
petitioner, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J)
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