Introduction
In the present post, we shall discuss a recent
judgment by the Hon’ble Supreme Court of India, Rattan Singh & Others
v. Nirmal Gill & Others, (2020) SCC OnLine SC 936, wherein the law
of evidence and the standard of proof required in civil cases has been
discussed in a very succinct manner.
The case at hand involved some Sale Deeds and a General
Power of Attorney (GPA) whose veracity and evidentiary value were in question. The
Plaintiff had executed a General Power of Attorney in favour of the Defendant
and consequently, on the strength of the GPA, the Defendant executed some Sale Deeds
as an attorney of the Plaintiff. However, such Sale Deeds were disputed by the
Plaintiff alleging fraud on part of the Defendant. For the sake of brevity,
only the relevant legal juxtapositions are being discussed in this post.
Attestation of Documents by Witnesses
The Sale Deeds had two witnesses one of whom had
died and could not testify before the Trial Court. However, the signature of the
deceased witness was identified by other witnesses and the attesting witness
(DW-3) who was alive verified that he had seen both the Plaintiff and the
Defendant signing the Sale Deeds and he then attested the Sale Deeds.
In order to appreciate these facts, the Court took
recourse to the definition of ‘attested’ under Section 3 of the
Transfer of Property Act, 1882 which is reproduced below: -
“3.- Interpretation Clause.- In this Act,
unless there is something repugnant in the subject or context,- “attested”,
in relation to an instrument, means and shall be deemed always to have meant
attested by two or more witnesses each of whom has seen the executant sign or
affix his mark to the instrument, or has seen some other person sign the
instrument in the presence and by the direction of the executant, or has
received from the executant a personal acknowledgement of his signature or
mark, or of the signature of such other person, and each of whom has signed the
instrument in the presence of the executant; but it shall not be
necessary that more than one of such witnesses shall have been present at the
same time, and no particular form of attestation shall be necessary.”
Thus, the afore-stated provision of law provides
for multiple contingencies for attestation to occur. Further, a bare perusal of
Section 68 and 71 of Indian Evidence Act, 1872, would also be apposite at this
juncture and is provided hereinbelow: -
“68. 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…….
71. If the attesting witness denies or does not
recollect the execution of the document, its execution may be proved by other
evidence.”
In order to delve further, the Hon’ble Court borrowed
the principles enunciated in Jagdish Chand Sharma v. Narain Singh Saini
(dead) through legal representatives, (2015) 8 SCC 615, wherein
following important propositions were laid down: -
“57.1. Viewed in premise, Section 71 of the
1872 Act has to be necessarily accorded a strict interpretation…. The
propounder can be initiated to the benefit of Section 71 of the 1872 Act only
if the attesting witness/witnesses, who is/are alive and is/are produced and in
clear terms either denies/deny the execution of the document or cannot
recollect the said incident…. If the evidence of the witnesses produced by
the propounder is inherently worthless and lacking in credibility, Section 71
of the 1872 Act cannot be invoked to bail him (the propounder) out of the
situation to facilitate a roving pursuit….”
Here, the attesting witness who is alive did not
deny the execution of the Sale Deeds and never said that he could not recollect
the said incident. Hence, Section 71 cannot be invoked here to say that the
execution of the Sale Deeds has to be proved by any other evidence. Therefore,
with respect to the evidentiary value of the attesting witness who was alive,
the Hon’ble Supreme Court held that the evidence given by such witness (DW-3)
stood corroborated and therefore, the same could not be disregarded.
This certainly proves the execution of the Sale Deeds
but the Court further held that when the Plaintiff is contending that it has
not received the consideration amount towards the transfer of property vide the
Sale Deeds, then “the plaintiff was obliged to rebut the positive
evidence produced by the defendants regarding payment of consideration amount
to the plaintiff, but also ought to have independently proved her case of
non-receipt of the consideration amount.”
Evidentiary Value of General Power of Attorney
The case at hand also involved a General Power of
Attorney that was more than thirty years old. Therefore, before adverting any
further, a bare perusal of Section 4 and Section 90 of the Indian
Evidence Act, 1872, would be pertinent here: -
“Section 90.- Presumption as to
documents thirty years old.- Where any document, purporting or proved to be
thirty years old, is produced from any custody which the Court in the
particular case considers proper, the Court may presume that the
signature and every other part of such document, which purports to be in the
handwriting of any particular person, is in that persons handwriting, and, in
the case of a document executed or attested, that it was duly executed and
attested by the persons by whom it purports to be executed and attested……
Section 4.- “May Presume”.-
Whenever it is provided by this Act that the Court may presume a fact, it
may either regard such fact as proved, unless and until it is disproved,
or may call for proof of it.”
In light of the above, the Hon’ble Court observed
that there is a presumption in favour of validity of the General Power of
Attorney (more than thirty years old) and unless such presumption is rebutted
by leading appropriate evidence, the said General Power of Attorney shall be
considered to be a genuine document.
Section 17 of the Limitation Act, 1963
Section 17 of the Limitation Act, 1963 stipulates
that in case a suit or an application is brought based upon a fraud or
concealment or mistake of the Defendant, the period of limitation shall not
begin to run until the Plaintiff has discovered the fraud or the concealment or
mistake or with reasonable diligence or means have discovered it. Here the
Court held that “to invoke Section 17 of the Limitation Act, 1963 Act, two
ingredients need to be pleaded and proved. One, the existence of a fraud, and
second the discovery of such fraud. The plaintiff is unable to prove fraud.
The alleged discovery of fraud automatically. The plaintiff cannot avail
benefit of Section 17.”
Held
The Court finally held as under: -
“The standard of proof required in a civil
dispute is the preponderance of probabilities, and not beyond reasonable doubt.
Though the discrepancies in the General Power of Attorney (GPA) of 1990
create some doubt, yet in absence of tangible evidence from the plaintiff to
support the plea of fraud, it does not take the matter further. Rather, the
testimony of the attesting witness, scribe and other independent witnesses
support the defendant's case. Their evidence dispels the doubt if any and tilts
the balance in defendant's favour.”
Concluding Remarks
The case at hand involved some very common issues
and there are literally thousands of cases pending before the Courts in India
that involve similar questions and issues. I hope that this Judgment serves as
a beacon of light to all those litigants and respective Trial Courts. Understanding
civil disputes can be complicated at times but after reading this judgment,
many provisions of law have become clear and a concerted approach based upon
the principles enunciated hereinabove can be adopted by the lawyers and the
judges to handle such disputes.
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