2026 INSC 703

Page 1 of 36

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6526 OF 2024

(@Petition for Special Leave to Appeal (C) No.27109/2018 )

R. VERONICA & ANR. …APPELLANTS

VERSUS

RUDRAYANI DEVAKI(D) THROUGH

LRS. S. SATHA KUMAR & ORS. …RESPONDENTS

J U D G M E N T

1. This appeal is at the instance of the original defendants and

is directed against the judgment and order passed by the

High Court of Kerala dated 11.07.2018 in Regular Second

Appeal No. 163 of 2007 by which the Second Appeal preferred

by the respondents herein (original plaintiffs) came to be

allowed, thereby setting aside the judgment and order passed

by the First Appellate Court dismissing the suit instituted by

the plaintiffs and restoring the original decree passed by the

Page 2 of 36

trial court allowing the suit instituted by the original

plaintiffs, i.e., the respondents before us.

2. The facts giving rise to the present appeal may be

summarised as under:

a. The respondents before us (original plaintiffs)

instituted original suit no. 88 of 1996 in the Court of

the learned Munsif Nedumangad for declaration of title

of plaint “A” Schedule property, recovery of possession

of “B” Schedule property (big part of “A” Schedule) and

for cancellation of the sale deed Ext. A-4 purported to

have been executed by the original defendant no. 3 in

favour of the defendant no. 1.

b. It appears from the materials on record , more

particularly from the pleadings, that out of 13 cents of

plaint “A” Schedule property, 6.5 cents originally was

of the ownership of the defendant no. 3, namely,

Rajeswari. Rajeswari derived title over the same as per

the partition deed no. 2461 of 1978. The other half, i.e.,

6.5 cents came to the share of one Ashok Kumar and

Lalitha by way of the very same partition deed dated

13.07.1978.

c. On 19.12.1978, the defendant no. 3

Rajeswari/respondent no. 4 before us sold her part of

Page 3 of 36

the property admeasuring 6.5 cents to one Vanajakshi

by way of the registered sale deed no. 4477/1978. This

sale deed came to be registered in the office of the Sub-

Registrar, Nedumangad.

d. The said property which forms part and parcel of plaint

“A” Schedule property is described as “B” Schedule

property in the suit.

e. On 31.12.1979 Ashok Kumar, Lalitha and Vanajakshi,

jointly executed a sale deed in favour of the

plaintiff/respondent no. 1 before us in respect of the

entire 13 cents by way of registered sale deed no. 5 of

1980. This sale deed came to be registered with the

office of Sub-Registrar Nedumangad.

f. The dispute cropped up between the parties when the

defendant no. 3, namely, Rajeswari executed one

another sale deed dated 24.01.1996 with respect to the

very same property in favour of the appellants before

us/ original defendant no. 1 bearing document no.

276/96 (Ext. A4 sale deed).

g. It is the case of the plaintiffs that on the strength of

sale deed dated 24.01.1996 the appellants/defendant

nos. 1 and 2 took over the possession of plaint “B”

Schedule property illegally and forcefully (i.e., 6.5

Page 4 of 36

cents) originally owned by the defendant no. 3, namely,

Rajeswari and started putting up construction on the

same.

h. The aforesaid led to the institution of the original suit

referred to above on the ground that the sale deed (Ext.

A4) purported to have been executed by the defendant

no. 3 in favour of the defendant no. 1 is void ab initio

in so far as the plaintiff/respondent no. 1 is concerned

and has no legal enforceability as against the plaintiff

and the appellants/defendant nos. 1 and 2 respectively

could not have taken over the possession of the suit

property illegally and put up any construction on the

same.

i. Upon institution of the original suit, the

appellants/defendant nos. 1 and 3 respectively entered

their appearance and filed a joint written statement.

The original defendant no. 2 remained ex parte.

j. In the written statement, the appellants/original

defendants stated that the suit was not maintainable

either in law or on facts. They further stated that the

3

rd defendant had not executed any sale deed in favour

of Vanajakshi or in favour of anyone else. The sale deed

sought to be relied upon by the original plaintiff was

Page 5 of 36

bogus and fabricated. They took the stance that they

derived title over the plaint “B” Schedule property on

the strength of the document no. 2461 of 1978 and

since the execution of the said document , they

remained in uninterrupted possession and enjoyment

of the plaint “B” Schedule property.

k. While so the 3

rd defendant executed a sale deed in

favour of the 1

st defendant in respect of the schedule

“B” property as per the document no. 276/1996 upon

purchase of the plaint “B” Schedule property by the 1

st

defendant. She constructed a building in the 6.5 cents

of the property and also got her name mutated in the

revenue records.

l. Having regard to the pleadings, the trial court framed

the following issues:

i. Whether the suit is maintainable?

ii. Whether the document no. 276/96 executed by

the 3

rd defendant in favour of the 1

st defendant is

liable to be cancelled?

iii. Whether the declaration prayed for is allowable?

iv. Whether the recovery prayed for is allowable?

v. Whether the inunction prayed for is allowable?

vi. Reliefs and costs?

Page 6 of 36

m. In the course of the trial, the plaintiff examined herself

and also examined 2 other witnesses. The plaintiff also

adduced documentary evidence in the form of Ext. A1

to A4 respectively. The defendants thought fit not to

lead any oral or documentary evidence. The reports of

the Commissioner and the plan came to be marked as

Ext. C1, C1(a), C2 and C2(a) respectively.

n. Upon appreciation of the oral as well as documentary

evidence on record, the suit came to be allowed.

o. The sale deed no. 276/96 said to have been executed

by the 3

rd defendant in favour of the 1

st defendant, was

declared as null and void.

p. The plaintiff was declared as the lawful owner of the

plaint “A” Schedule property including the plaint “B”

schedule property.

q. The plaintiff was permitted to recover the possession of

plaint “B” Schedule property from the defendant nos. 1

and 2 respectively.

r. The defendant nos. 1 and 2 respectively were directed

to remove the structures and constructions put up by

them on the suit property, failing which the plaintiff

was permitted to get them removed through the Court.

Page 7 of 36

s. The defendants were restrained by way of permanent

injunction from felling any trees standing in plaint “B”

Schedule property or putting up any further

construction on the same.

t. The original defendants being dissatisfied with the

decree passed by the trial court went in First appeal.

The First appeal came to be filed in the court of Sub-

Judge, Nedumangad and was registered as Appeal Suit

No. 59 of 1998.

u. In the First appeal, the Appellate Court determined the

following points for its consideration:

i. Whether the plaint schedule properties identified

by the Advocate Commissioner are correct and

proper?

ii. Whether the execution of Ext. A3 is proved?

iii. Whether the plaintiff has title over the plaint “B”

Schedule property?

iv. Whether the plaintiff is entitled for a decree for

cancellation of document no. 276/1996?

v. Whether the plaintiff is entitled is entitled for a

declaration as sought for?

vi. Whether the plaintiff is entitled for recovery of “B”

Schedule property as sought for?

Page 8 of 36

vii. Whether the plaintiff is entitled for an injunction

as prayed for?

viii. Whether the judgment and decree of the court

below are legally sustainable?

v. Upon reappreciation and evaluation of the evidence on

record, the First Appellate Court allowed the appeal

and thereby set aside the judgment and decree passed

by the Court of the learned Munsif.

w. The Fist appeal was allowed essentially on the ground

that the Commissioner appointed by the Court had

failed to identify the plaint Schedule properties

correctly. The plaintiff failed to prove the execution of

Ext. A3 since the execution of the same was specifically

denied by the defendant no. 3. Although the plaintiff

examined one of the attesting witnesses, i.e., the PW3

to prove the execution of the Ext. A3 yet the oral

evidence of PW3 does not inspire any confidence. PW3

is none other but the husband of the deceased

Vanajakshi.

x. Being aggrieved and dissatisfied with the judgment and

order passed by the First Appellate Court dismissing

the suit the plaintiff went before the High Court by way

of Second Appeal No. 163 of 2007.

Page 9 of 36

y. The Second Appeal came to be allowed vide the

impugned judgment and order passed by the High

Court.

z. While allowing the Second Appeal, the High Court

observed thus:

“The expression “the person by whom it

purports to have been executed” engrafted

under the proviso to Section 68 stands for a

denial of execution of the document by the

person who purports to have been executed

the same 'in a suit brought by that person'.

The further expression “specifically denied”

should be understood as the denial of

execution of document specifically by the

person by whom it purports to have been

executed, in a suit or proceeding initiated by

him. It is available only in a suit or

proceeding initiated by the person by whom

it purports to have been executed. In other

words, (1) there should be a specific denial

of execution of document by the person by

whom it purports to have been executed, and

(2) it has been raised by that person in a suit

or proceeding initiated by him for that

purpose. Unless there is a suit or counter

claim or proceeding either filed or initiated or

brought into existence by that person, there

cannot be any requirement of compliance of

mandate as envisaged in the main body of

Section 68 of the Indian Evidence Act.

Proviso to Section 68 of the said Act is an

exception to its main body and a further

exception carved out in the proviso avoiding

the application of the proviso when there is

specific denial of execution by the person by

whom it purports to have been executed. In

all other cases of execution of documents

required by law to be attested, except a will

or codicil, there is no requirement of

compliance of mandate as envisaged in the

Page 10 of 36

main body of Section 68 of the Indian

Evidence Act for its proof. A mere challenge

by the executant/the person who purported

to have been executed the document alone is

not sufficient to bring the matter within the

exception to the proviso to Section 68 of the

Indian Evidence Act, though he is in the

party array of the suit either as a defendant

or as a co-defendant unless there is a relief

sought by him challenging its execution. The

fact that the executant (defendant No.3) is in

the party array of the suit alone will not bring

the document within the purview of the

exception carved out of the proviso to Section

68 of the Evidence Act and hence, the proviso

to Section 68 alone would come into play

without its exception and hence, there is no

need or necessity for summoning or

examining any of the attesting witnesses to

prove the document.

8. No suit or counter claim or proceeding was

admittedly initiated by defendant No.3, the

person who purports to have executed

Ext.A3 sale deed dated 19.12.1978. The

production of the original of the said

document would satisfy the requirement of

proof of its execution. Necessarily, the

subsequent execution of another deed of

conveyance by defendant No.3 with respect

to the same property in favour of defendant

No.1 is without any authority, right, title or

interest over the property and hence the

same is not binding on the rights of the

plaintiff over the plaint schedule property.

The plaintiff can very well ignore the same

without seeking a remedy by way of setting

aside the document or declaration but it may

be a clog on its title to the property in future

and hence the relief sought for by the

plaintiff has to be granted by setting aside

Ext.A4 sale deed. The decree passed by the

first appellate court reversing the judgment

and decree of the lower court hence liable to

be set aside.

Page 11 of 36

9. Another ground was also raised by the

learned counsel for the defendants disputing

the location of the property in Ext.C1

mahazar and Ext.C1(a) plan. It is submitted

by the learned counsel for the respondents

that one property is lying on the south-

eastern corner and the other one is lying on

the north-eastern corner of a large extent of

one acre 93 cents. But the commissioner who

visited the property located both plaint 'E'

and 'G' schedule as a single compact plot

without commissioner, it is clear that these

two properties were located as a single

compact plot without any separation. The

respective description of 'G' and 'E' schedule

would show that these two properties would

take the eastern part of a large extent of one

acre 93 cents. There is no intervening

property and hence it is perfectly in tune

with the description given in both the title

deeds as well as the parental document

Ext.A2. The trial court has accepted the

abovesaid plan and decreed the suit.

In the result, the second appeal is allowed.

The decree and judgment of the first

appellate court is hereby set aside. The

decree and judgment passed by the trial

court is restored. No costs.”

(emphasis supplied)

3. In such circumstances referred to above, the appellants are

here before us with the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANTS

(ORIGINAL DEFENDANTS)

Page 12 of 36

4. Mr. Prakash Ranjan Nayak, the learned counsel appearing

for the appellants vehemently submitted that the High Court

committed an egregious error in passing the impugned

judgment and order in exercise of its jurisdiction under

Section 100 of the CPC without formulating any substantial

question(s) of law.

5. The learned counsel submitted that without formulating the

substantial question(s) of law, if any, involved in the Second

Appeal the High Court could not have proceeded to hear the

same on merits and allow the same.

6. The learned counsel would submit that the interpretation by

the High Court of Section 68 of the Evidence Act could be

termed as absolute erroneous. In other words, according to

the learned counsel, the two requirements which the High

Court has held as necessary for invoking Section 68 of the

Evidence Act is nowhere provided in the said section.

7. The appellants/defendants had specifically and in categorical

terms denied the execution of Ext. A3 in the ir written

statement, and in such circumstances, the onus of proving

the said document was on the plaintiff. The evidence of PW3

(attesting witness) was found to be unreliable by First

Appellate Court.

Page 13 of 36

8. In the last, it was submitted that the High Court failed to

address itself on any of the findings recorded by the First

Appellate Court.

9. In such circumstances referred to above, the learned counsel

prayed that there being merit in his appeal, the same may be

allowed and the impugned judgment and order passed by the

High Court be set aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

(ORIGINAL PLAINTIFFS )

10. On the other hand, while opposing the present appeal, Mr.

Ankur S. Kulkarni, the learned counsel appearing for the

respondents, original plaintiff vehemently submitted that no

error not to speak of any error of law could be said to have

been committed by the High Court in passing the impugned

judgment and order.

11. He would submit that the interpretation put forward by the

High Court, in so far as Section 68 of the Evidence Act is

concerned, is absolutely correct.

12. He argued that Ext. A3 was executed in the year 1978. Till

1995, the title over the suit property never came to be

questioned by the appellants/original defendants. The sale

Page 14 of 36

deed dated 19.12.1978 could be said to have been validly

proved by the plaintiff.

13. It was argued that there was no good reason or rather no good

ground for the First Appellate Court to disbelieve the oral

evidence of PW3 (one of the attesting witnesses to the sale

deed of 1978 executed by Vanajakshi).

14. In such circumstances referred to above, the learned counsel

prayed that there being no merit in the present appeal, the

same may be dismissed.

ANALYSIS

15. Having heard the learned counsel appearing for the parties

and having gone through the materials on record , the

following questions fall for our consideration:

i. Whether the High Court could have proceeded to hear

the Second Appeal on merits and allow the same

without formulating any substantial question of law

as required under Section 100 of the CPC?

ii. Whether the High Court is correct in saying that the

expression “the person by whom it purports to have

been executed” engrafted in the proviso to Section 68

of the Evidence Act stands for denial of the execution

of the document by the person who purports to have

Page 15 of 36

executed the same “in a suit brought by that person”?

In other words, whether the High Court is correct in

taking the view that the expression “specifically

denied” should be understood as the denial of

execution of document specifically by the person by

whom it purports to have been executed in a suit or

proceeding and not just a bald denial in the written

statement instituted by him?

iii. Whether the High Court is justified in taking the view

that in the absence of any specific denial of execution

of the sale deed of 1978, the proviso to Section 68 of

the Evidence Act would not come into play?

QUESTION NO. 1

16. Order XLII Rule 2 of the CPC provides thus:

“2. Power of Court to direct that the appeal be heard

on the question formulated by it.-At the time of

making an order under rule 11 of Order XLI for the

hearing of a second appeal, the Court shall

formulate the substantial question of law as

required by section 100, and in doing so, the Court

may direct that the second appeal be heard on the

question so formulated and it shall not be open to

the appellant to urge any other ground in the appeal

without the leave of the Court, given in accordance

with the provision of section 100.”

Page 16 of 36

17. Section 100 of the CPC provides that, (1) Save as otherwise

expressly provided in the body of this Code or by any other

law for the time being in force, an appeal shall lie to the High

Court from every decree passed in appeal by any Court

subordinate to the High Court, if the High Court is satisfied

that the case involves a substantial question of law. (2) An

Appeal may lie under this section from an appellate decree

passed ex parte. (3) In an appeal under this section, the

memorandum of appeal shall precisely state the substantial

question of law involved in the appeal. (4) Where the High

Court is satisfied that a substantial question of law is

involved in any case, it shall formulate that question. (5) The

appeal shall be heard on the question so formulated and the

respondent shall, at the hearing of the appeal, be allowed to

argue that the case does not involve such question. Proviso

says that nothing in this sub-section shall be deemed to take

away or abridge the power of the Court to hear, for reasons

to be recorded, the appeal on any other substantial question

of law, not formulated by it, if it is satisfied that the case

involves such question.

18. In Nazir Mohamed v. J. Kamala and Others , reported in

(2020) 19 SCC 57, this Court held that:

Page 17 of 36

“53. The condition precedent for entertaining and

deciding a second appeal being the existence of a

substantial question of law, whenever a question is

framed by the High Court, the High Court will have

to show that the question is one of law and not just

a question of facts, it also has to show that the

question is a substantial question of law.

54. In Kondiba Dagadu Kadam v. Savitribai Sopan

Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan

Gujar, (1999) 3 SCC 722], this Court held : (SCC pp.

724-26, paras 3-4 & 6)

“3. After the amendment a second appeal can be

filed only if a substantial question of law is involved

in the case. The memorandum of appeal must

precisely state the substantial question of law

involved and the High Court is obliged to satisfy

itself regarding the existence of such a question. If

satisfied, the High Court has to formulate the

substantial question of law involved in the case.

The appeal is required to be heard on the question

so formulated. However, the respondent at the time

of the hearing of the appeal has a right to argue that

the case in the court did not involve any substantial

question of law. The proviso to the section

acknowledges the powers of the High Court to hear

the appeal on a substantial point of law, though not

formulated by it with the object of ensuring that no

injustice is done to the litigant where such a

question was not formulated at the time of

admission either by mistake or by inadvertence.

4. It has been noticed time and again that without

insisting for the statement of such a substantial

question of law in the memorandum of appeal and

formulating the same at the time of admission, the

High Courts have been issuing notices and

generally deciding the second appeals without

adhering to the procedure prescribed under Section

100 of the Code of Civil Procedure. It has further

been found in a number of cases that no efforts are

made to distinguish between a question of law and

a substantial question of law. In exercise of the

powers under this section the findings of fact of the

Page 18 of 36

first appellate court are found to have been

disturbed. It has to be kept in mind that the right of

appeal is neither a natural nor an inherent right

attached to the litigation. Being a substantive

statutory right, it has to be regulated in accordance

with law in force at the relevant time. The conditions

mentioned in the section must be strictly fulfilled

before a second appeal can be maintained and no

court has the power to add to or enlarge those

grounds. The second appeal cannot be decided on

merely equitable grounds. The concurrent findings

of facts howsoever erroneous cannot be disturbed

by the High Court in exercise of the powers under

this section. The substantial question of law has to

be distinguished from a substantial question of fact.

…

***

6. If the question of law termed as a substantial

question stands already decided by a larger Bench

of the High Court concerned or by the Privy Council

or by the Federal Court or by the Supreme Court, its

merely wrong application on the facts of the case

would not be termed to be a substantial question of

law. Where a point of law has not been pleaded or

is found to be arising between the parties in the

absence of any factual format, a litigant should not

be allowed to raise that question as a substantial

question of law in second appeal. The mere

appreciation of the facts, the documentary evidence

or the meaning of entries and the contents of the

document cannot be held to be raising a substantial

question of law. But where it is found that the first

appellate court has assumed jurisdiction which did

not vest in it, the same can be adjudicated in the

second appeal, treating it as a substantial question

of law. Where the first appellate court is shown to

have exercised its discretion in a judicial manner, it

cannot be termed to be an error either of law or of

procedure requiring interference in second appeal.”

55. When no substantial question of law is

formulated, but a second appeal is decided by the

High Court, the judgment of the High Court is

vitiated in law, as held by this Court in Biswanath

Ghosh v. Gobinda Ghosh [Biswanath

Page 19 of 36

Ghosh v. Gobinda Ghosh, (2014) 11 SCC 605 :

(2014) 4 SCC (Civ) 192 : AIR 2014 SC 1582].

Formulation of substantial question of law is

mandatory and the mere reference to the ground

mentioned in memorandum of second appeal

cannot satisfy the mandate of Section 100 CPC.

(emphasis supplied)

19. In the Government of Kerala v. Joseph reported in 2023

INSC 693, this Court held as under:

“8. For an appeal to be maintainable under

Section 100, Code of Civil Procedure (‘CPC’, for

brevity) it must fulfil certain well-established

requirements. The primary and most important of

them all is that the appeal should pose a

substantial question of law. The sort of question

that qualifies this criterion has been time and again

reiterated by this Court. We may only refer to

Santosh Hazari v. Purushottam Tiwari (2001) 3

SCC 179 (three-Judge Bench) wherein this Court

observed as follows:

“12. The phrase “substantial question of law”,

as occurring in the amended Section 100 is not

defined in the Code. The word substantial, as

qualifying “question of law”, means — of having

substance, essential, real, of sound worth,

important or considerable. It is to be understood

as something in contradistinction with —

technical, of no substance or consequence, or

academic merely. However, it is clear that the

legislature has chosen not to qualify the scope

of “substantial question of law” by suffixing the

words “of general importance” as has been done

in many other provisions such as Section 109 of

the Code or Article 133(1)(a) of the Constitution.

The substantial question of law on which a

second appeal shall be heard need not

necessarily be a substantial question of law of

general importance.”

(emphasis supplied)

Page 20 of 36

20. In Ishwar Dass Jain v. Sohan Lal, reported in (2000) 1 SCC

434, this Court in para 10, has stated thus:

“10. Now under Section 100 CPC, after the 1976

Amendment, it is essential for the High Court to

formulate a substantial question of law and it is not

permissible to reverse the judgment of the first

appellate court without doing so.”

(emphasis supplied)

21. Yet again in Roop Singh v. Ram Singh, reported in (2000) 3

SCC 708, this Court has expressed that the jurisdiction of a High

Court is confined to appeals involving substantial question of

law. Para 7 of the said judgment reads thus:

“7. It is to be reiterated that under Section 100 CPC

jurisdiction of the High Court to entertain a second

appeal is confined only to such appeals which

involve a substantial question of law and it does not

confer any jurisdiction on the High Court to interfere

with pure questions of fact while exercising its

jurisdiction under Section 100 CPC. That apart, at

the time of disposing of the matter the High Court

did not even notice the question of law formulated

by it at the time of admission of the second appeal

as there is no reference of it in the impugned

judgment. Further, the fact-finding courts after

appreciating the evidence held that the defendant

entered into the possession of the premises as

a batai, that is to say, as a tenant and his

possession was permissive and there was no

pleading or proof as to when it became adverse and

hostile. These findings recorded by the two courts

below were based on proper appreciation of

evidence and the material on record and there was

no perversity, illegality or irregularity in those

findings. If the defendant got the possession of suit

land as a lessee or under a batai agreement then

from the permissive possession it is for him to

Page 21 of 36

establish by cogent and convincing evidence to

show hostile animus and possession adverse to the

knowledge of the real owner. Mere possession for a

long time does not result in converting permissive

possession into adverse possession. (Thakur

Kishan Singh v. Arvind Kumar [(1994) 6 SCC 591]).

Hence, the High Court ought not to have interfered

with the findings of fact recorded by both the courts

below.”

22. The position has been reiterated in Kanhaiyalal v.

Anupkumar reported in (2003) 1 SCC 430, Premabai v.

Jnaneshwar Ramakrishna Patange , reported in, (2000) 9

SCC 418, Chadat Singh v. Bahadur Ram , reported in

(2004) 6 SCC 359 and Mathakala Krishnaiah v. V.

Rajagopal reported in (2004) 10 SCC 676.

23. Thus, the legal position is no more res integra on the point

that in order to admit and maintain a second appeal under

Section 100 of the CPC, the Court shall formulate substantial

question(s) of law, and the said procedure is mandatory.

Although the phrase 'substantial question of law' is not

defined in the CPC, yet 'substantial question of law' means;

of having substance, essential, real, of sound worth,

important or considerable. It is to be understood as

something in contradistinction with – technical, of no

substance or consequence, or academic merely. However, it

is clear that the legislature has chosen not to qualify the

scope of “substantial question of law” by suffixing the words

Page 22 of 36

“of general importance” as has been done in many other

provisions such as Section 109 of the CPC or Article 133(1)(a)

of the Constitution. The substantial question of law on which

a second appeal shall be heard need not necessarily be a

substantial question of law of general importance. As such,

Second Appeal cannot be decided on equitable grounds and

the conditions mentioned in Section 100 read with Order XLII

Rule 2 of the CPC must be complied to admit and maintain a

Second Appeal.

24. A perusal of the impugned judgment passed by the High

Court does not show in any manner that any substantial

question of law has been formulated or that the second

appeal was heard on the question, if any, so formulated. That

being so, the judgment cannot be maintained.

25. We looked into the memorandum of the Second Appeal which

is on the record. In the memorandum of the Second Appeal,

the original plaintiff formulated the following substantial

questions of law for the consideration of the High Court:

“(A) Whether after jointly executing the sale deed in

favour of the plaintiff for the entire 13 cents

described as “A” schedule any objection regarding

the description, if any of the properties as between

the one mentioned in Exhibit -A2 partition deed and

ExhibitA3 sale deed, is sustainable.

(B) Is not Exhibit-A3 sale deed valid and binding on

the 3

rd defendant especially when the latter had not

Page 23 of 36

adduced any oral or documentary evidence,

against its authenticity, validity or genuineness.

(C) In view of the execution and registration of Ext.

B3 sale deed, was not the lower Appellate Court

bound to presume that all formalities, in connection

with the registration were property and regularly

done and that on the failure of the 3

rd defendant to

prove that fraud was played on the Sub-Registrar,

Ext. B3 was beyond challenge and unquestionable.

(D) Whether the lower Appellate Court was justified

in upsetting the judgment and decree of the trial

court when the same did not suffer from any

infirmities, like perverse appreciation of evidence

taking into account irrelevant facts and non-

consideration of relevant facts.

In other words, even if a different view is possible,

whether the lower Appellate Court was justified in

reversing the judgment of the trial court.”

26. However, the picture is not clear, as to how and in what

manner, the Second Appeal came to be admitted and heard

finally. Ordinally, when the High Court finds merit in the

substantial questions of law formulated by the appellant, the

Second Appeal would be admitted by way of an order

wherein, the questions of law are reproduced. It may happen

that the matter may be at the stage of notice and after other

side appears the High Court may decide to take up the

Second appeal for final hearing and dispose of the same.

However, once the High Court decides to hear the Second

Appeal on merits it is mandatory to incorporate the

Page 24 of 36

substantial questions of law in the judgment and answer

those questions accordingly.

27. In the case at hand, the High Court failed to formulate any

substantial questions of law and decide those questions,

accordingly. In fact, the High Court set aside the first

appellate court’s judgment and allowed the Second Appeal,

and thereby restored the original decree that came to be

passed by the trial court in favour of the plaintiff, i.e., the

respondents before us. The impugned judgment could be said

to be vitiated in law.

28. In such circumstances referred to above, we are left with no

other option but to set aside the impugned judgment and

remit the matter to the High Court for disposal after

formulating the substantial questions of law, if any, in

accordance with law.

QUESTION NOS. 2 & 3

29. We could have closed this matter by answering the question

no. 1 as above. However, we have noticed two egregious

errors in the impugned judgment passed by the High Court.

We are of the view that we should not overlook the two

egregious errors, more particularly, when we have decided to

remit the matter to the High Court for de novo consideration

Page 25 of 36

and hearing of the second appeal. If we do not correct the

same, it may have its own legal implications and the

subordinate courts may get misled with the proposition of law

that the High Court has explained in so far as the

interpretation of the proviso to Section 68 of the Evidence Act

is concerned.

30. As noted above, the suit came to be allowed by the trial court.

The trial court took the view that the sale deed of the year

1978, executed by one Vanajakshi is legal and valid, and in

such circumstances, the subsequent sale deed of the year

1996 cannot be said to be legal and valid. The trial court

looked into the oral as well as documentary evidence adduced

by the original plaintiff, more particularly the oral evidence of

one of the attesting witnesses (PW-3) to the sale deed of 1978,

and found the oral testimony of the PW3 to be true,

trustworthy and reliable.

31. In the First Appeal preferred by the original defendants, the

First Appellate Court disbelieved the very execution of the

sale deed of 1978. To put in other words, the First Appellate

Court took the view that the oral evidence of PW3, i.e., one of

the attesting witnesses examined by the plaintiff did not

inspire any confidence, and in such circumstances, allowed

the First Appeal. When the matter went before the High Court

Page 26 of 36

in the Second Appeal, the High Court for no good reason

looked into Section 68 of the Evidence Act. We say so because

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 in allowing the appeal and thereby setting

aside the decree passed by the trial court in favour of the

plaintiff.

32. What has the High Court said? The High Court has said two

things. First, the High Court said that for the purpose of

applicability of Section 68 of the Evidence Act, the denial by

the defendant as regards any one of the documents relied

upon by the plaintiff has to be very specific. A mere bald or

vague denial is not sufficient to attract the proviso to Section

68 of the Evidence Act. The High Court observed that the

denial or challenge at the end of the defendants cannot be

said to be specific.

33. The second thing that the High Court said is that if the

defendant wants to deny the execution of any particular

document relied upon by the plaintiff, then such denial

cannot be only by way of written statement. The denial has

to be by way of a separate suit or a counter claim.

Page 27 of 36

34. We are of the opinion that on both the aforesaid counts, the

High Court fell in error. We do not agree with the proposition

of law as sought to be laid down by the High Court.

35. In the first place there was no good reason for the High Court

to touch or look into the proviso to Section 68 of the Evidence

Act as Section 68 as a whole does not apply to a registered

sale deed.

36. Section 54 of the Transfer of Property Act, 1882 defines “sale”

as a transfer of ownership in exchange for a price paid or

promised or part-paid and part-promised. It also provides

that such transfer, in case of tangible immoveable property

of the value of one hundred rupees and upwards, or in the

case of a reversion or other intangible thing, can be made

only by a registered instrument. It is not the requirement of

law that the sale deed is to be attested by any attesting

witness so as to prove the due execution by examining at

least one attesting witness.

37. Section 68 of the Indian Evidence Act provides how a

document, required to be attested by law, is to be proved. It

provides that such a document is to be proved by examining

at least one attesting witness, if there be an attesting witness

alive, and subject to the process of the Court and capable of

giving evidence. The proviso to Section 68 stipulates that it

Page 28 of 36

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. 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.

38. In taking the aforesaid view, we are fortified by the decision

of this Court in the case of Hans Raji (Smt.) v. Yosodanand

reported in (1996) 7 SCC 122 wherein this Court observed

as under:-

“So far as the applicability to the proviso to Section

68 is concerned, it must be noted that there was

no occasion for the respondent to examine any

attesting witness to the document in question as it

was a sale deed which never required any

attestation and even if some ‘marginal’ witnesses

had attested the document the document did not

attract Section 68 of the Evidence Act which in

term applies to the proof of execution of document

required by law to be attested. It reads as under:

“68. 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

at least 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:

Page 29 of 36

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.”

Therefore, Section 68 would not cover such a

transaction. Hence there would remain no

occasion to invoke the proviso to Section 68 with a

view to finding out whether the execution of such

a document was specifically denied by the

adverse party or not. Consequently, all the main

contentions canvassed before the High Court

which are repelled by the High Court cannot be

said to be wrongly repelled.”

(Emphasis supplied)

39. We may also refer to one another decision of this Court in the

case of Bayanabai Kaware v. Rajendra s/o Baburao Dhote

reported in (2018) 1 SCC 585 wherein this Court observed

as under:

“It is for the reasons that, firstly, the execution of

the sale deed does not need any attesting witness

like the gift deed, which requires at least two

attesting witnesses at the time of its execution as

per Section 123 of the Transfer of Property Act,

1882; and secondly, Section 68 of the Evidence

Act, 1872, which deals with the examination of the

attesting witness to prove the execution of the

document, does not apply to sale deed, which is

governed by Section 54 of the Transfer of Property

Act.”

(Emphasis supplied)

Page 30 of 36

40. Prima facie it appears that the High Court misconstrued the

expression “execution of any document, not being a Will”

appearing in the proviso to Section 68 of the Evidence Act.

The High Court construed “execution of any document” to

include a registered sale deed also. We are of the view that

the High Court committed an error in understanding the true

purport of the proviso to Section 68 of the Evidence Act. The

“execution of any document, except a Will” means those

documents which require compulsory attestation like a Gift

deed, Mortgage deed, Settlement deed, etc., but it is not

mandatory to examine any attesting witnesses in proof of

such documents unless its execution is specifically denied.

In the case of a Will, the examination of one of the attesting

witnesses is a necessary requirement, irrespective of whether

its execution has been specifically denied or not. This is all

that the proviso to Section 68 of the Evidence Act seeks to

convey or clarify.

INTERPRETATION OF THE PROVISO:

41. The term proviso is used to qualify a preceding provision and the

purpose of the proviso is to restrict or to explain the general

terms of the provisions of which it forms part of and not to add

to the body of the substantive provision nor to take away

Page 31 of 36

anything there from. A proviso cannot travel beyond the

provisions to which it is provided. This proposition is well

founded by this Court in the decision reported in Ram Narain

Sons Ltd. v. STO, reported in (1955) 2 SCC 64. In the above

judgment, this Court held as follows:

“11. (…) It is a cardinal rule of interpretation that

a proviso to a particular provision of a statute only

embraces the field which is covered by the main

provision. It carves out an exception to the main

provision to which it has been enacted as a proviso

and to no other (…)”.

(Emphasis supplied)

42. The view of this Court as above was followed in a later judgment

reported in CIT v. Indo-Mercantile Bank Ltd., reported in

1959 SCC OnLine SC 5, wherein it was observed as follows:

“The proper function of a proviso is that it qualifies

the generality of the main enactment by providing

an exception and taking out as it were, from the

main enactment, a portion which, but for the

proviso would fall within the main enactment.

Ordinarily it is foreign to the proper function of a

proviso to read it as providing something by way

of an addendum or dealing with a subject which

is foreign to the main enactment.

It is a fundamental rule of construction that a

proviso must be considered with relation to the

principal matter to which it stands as a proviso.

Therefore, it is to be construed harmoniously with

the main enactment”.

(Emphasis supplied)

Page 32 of 36

43. It has to be noted that the function of a proviso attached to a

statute, Act or Ordinance, is to explain, qualify or restrain

the operation of the preceding provision and it has to be read

in light of the subject matter of the main statute, Act or

Ordinance. Proviso in a statute has to be strictly construed

as it is instead to qualify what is affirmed in the body of the

statute, provision, section or paragraph preceding it.

44. Justice V.R. Krishna Iyer (as His Lordship then was) speaking

for the Bench in the case Dwarka Prasad v. Dwarka Das

Saraf reported in (1976) 1 SCC 128 observed as follows:-

“17. While rulings and text books bearing on

statutory construction have assigned many

functions for provisos, we have to be selective,

having regard to the text and context of a statute.

Nothing is gained by extensive references to

luminous classics or supportive case-law. Having

explained the approach we make to the specific

“proviso” situation in Section 2(a) of the Act, what

strikes us as meaningful here is that the

Legislature by the amending Act clarified what

was implicit earlier and expressly carved out what

otherwise might be mistakenly covered by the

main definition. The proviso does not, in this case,

expand, by implication, the protected area of

building tenancies to embrace “business” leases.

18. We may mention in fairness to Counsel that

the following, among other decisions, were cited at

the Bar bearing on the uses of provisos in

statutes: CIT v. Indo-Mercantile Bank Ltd, [AIR

1959 SC 713; Ram Narain Sons Ltd. v. Asstt.

CST [AIR 1955 SC; Thompson v. Dibdin [(1912)

AC 533, 541; Rex v. Dibdin [1910 Pro Div 57, 119,

125] and Tahsildar Singh v. State of U.P. [AIR

1959 SC 1012. The law is trite. A proviso must be

Page 33 of 36

limited to the subject-matter of the enacting clause.

It is a settled rule of construction that a proviso

must prima facie be read and considered in

relation to the principal matter to which it is a

proviso. It is not a separate or independent

enactment. “Words are dependent on the principal

enacting words to which they are tacked as a

proviso. They cannot be read as divorced from

their context” (Thompson v. Dibdin, 1912 AC 533).

If the rule of construction is that prima facie a

proviso should be limited in its operation to the

subject-matter of the enacting clause, the stand

we have taken is sound. To expand the enacting

clause, inflated by the proviso, sins against the

fundamental rule of construction that a proviso

must be considered in relation to the principal

matter to which it stands as a proviso. A proviso

ordinarily is but a proviso, although the golden

rule is to read the whole section, inclusive of the

proviso, in such manner that they mutually throw

light on each other and result in a harmonious

construction.

“The proper course is to apply the broad

general Rule of construction which is that a section

or enactment must be construed as a whole, each

portion throwing light, if need be, on the rest.

The true principle undoubtedly is, that the

sound interpretation and meaning of the statute,

on a view of the enacting clause, saving clause,

and proviso, taken and construed together is to

prevail. (Maxwell on Interpretation of Statutes,

10th Edn., p. 162)”

(Emphasis supplied)

45. This Court in Rohitash Kumar & Ors vs. Om Prakash

Sharma & Ors., reported in (2013) 11 SCC 451 observed

while explaining how to interpret a proviso as under:

“20. The normal function of a proviso is generally

to provide for an exception i.e. exception of

Page 34 of 36

something that is outside the ambit of the usual

intention of the enactment, or to qualify something

enacted therein, which, but for the proviso would

be within the purview of such enactment. Thus, its

purpose is to exclude something which would

otherwise fall squarely within the general

language of the main enactment. Usually, a

proviso cannot be interpreted as a general rule

that has been provided for. Nor it can be

interpreted in a manner that would nullify the

enactment, or take away in entirety, a right that

has been conferred by the statute. In case the

language of the main enactment is clear and

unambiguous, a proviso can have no repercussion

on the interpretation of the main enactment, so as

to exclude by implication, what clearly falls within

its expressed terms. If, upon plain and fair

construction, the main provision is clear, a proviso

cannot expand or limit its ambit and scope.

[Vide CIT v. Indo Mercantile Bank Ltd. [AIR 1959

SC 713] , Kush Saigal v. M.C. Mitter [(2000) 4 SCC

526 : AIR 2000 SC 1390] , Haryana State Coop.

Land Development Bank Ltd. v. Employees

Union [(2004) 1 SCC 574] , Nagar Palika

Nigam v. Krishi Upaj Mandi Samiti [(2008) 12 SCC

364] and State of Kerala v. B. Six Holiday Resorts

(P) Ltd. [(2010) 5 SCC 186] ]

21. The proviso to a particular provision of a

statute, only embraces the field which is covered

by the main provision, by carving out an exception

to the said main provision. (Vide Ram Narain Sons

Ltd. v. CST [AIR 1955 SC 765], AIR p. 769, para 10

and A.N. Sehgal v. Raje Ram Sheoran [1992 Supp

(1) SCC 304], SCC p. 315, para 14.)

22. In a normal course, a proviso can be

extinguished from an exception for the reason that

exception is intended to restrain the enacting

clause to a particular class of cases while the

proviso is used to remove special cases from the

general enactment provided for them specially.”

(Emphasis supplied)

Page 35 of 36

46. There is no gainsaying that Section 68 opens with the words,

“if a document is required by law to be attested…”. Since the

proviso cannot be construed independently of the main

provision that it attaches to, it is as clear as a noon day that

the proviso to Section 68 cannot create an independent rule

as regards “specific denial” for all attested documents. In

other words, the proviso to Section 68 carves out an

exception only in respect of documents that are required to

be mandatorily attested by law. A sale deed does not fall in

the category of such documents, therefore, the proviso to

Section 68 would not be applicable in the present matter.

CONCLUSION

47. In the overall view of the matter, we have reached the

conclusion that we should set aside the impugned judgment

and order passed by the High Court and remit the matter to

the High Court for de novo hearing of the Second Appeal after

giving an opportunity to all the parties concerned to put

forward their case. We accordingly pass such order.

48. The appeal stands allowed in the above terms.

49. We request the High Court to ensure that the Second Appeal

is heard afresh after formulating substantial question(s) of

Page 36 of 36

law and the same is disposed of within a period of three

months from the date of the receipt of the writ of this order.

50. The High Court shall inform about the disposal of the Second

Appeal to this Court.

51. The Registry shall forward one copy each of this judgment to

all the High Courts.

………………………………J.

(J.B. PARDIWALA)

……………………………..J.

(MANOJ MISRA )

14

th July, 2026

New Delhi.