Point of Law : Section 68 of Evidence Act is an exception to main section by which mandate of summoning an attesting witness in proof of execution of a registered document, other than a Will or Codicil, was excluded, unless its execution by person by whom it purports to have been executed is specifically denied.

JUDGMENT :

This appeal is against the preliminary decree granted in a suit for partition with respect to A schedule immovable property by the defendants 1 to 3. B schedule is the movables. The plaintiff and defendants 1 to 4 are the children of one Kombi and Valli. Defendants 5 to 15 are the purchasers of various shares under three sale deeds viz, Ext.B1 of 5/8/1976, Ext.B5 of 27/4/1990, Ext.B6 of 7/5/1993 respectively from first, second and third defendants. There was an earlier partition, Ext.B3 of the year 1970, by which, the properties were divided and separated between the father, mother and five children. Two schedules were separately allotted to the share of father and mother. Schedule C, D, E and G were allotted to the defendants 1 to 4 separately. It is out of that property, they sold their respective rights and title under Exts.B1, B5 and B6. It is thereafter, the plaintiff, the daughter of Kombi and Valli, came up with a suit for partition, that too, after the lapse of more than twelve years from the date of Ext.B3 partition of the year 1970. Admittedly, she did not challenge the partition executed by her mother for and on her behalf within a period of three years after attaining majority. By that time, the partition deed was acted upon by executing various sale deeds by the respective sharers. The first sale was effected in the year 1970, the second one in the year 1990 and the third one in the year 1993. It was submitted by the learned counsel for the respondent/plaintiff that the bar of limitation would not come into play unless the document of partition was proved to be genuine and binding on the plaintiff who was at that time only a minor represented through her mother in the document. The document executed for and on behalf of the minor by the natural guardian can be brought under challenge within a period of three years after attaining majority. No such challenge or suit was filed within a period of three years after attaining majority. The contention raised by the plaintiff that the execution of Ext.B3 partition deed was not proved in accordance with the mandate under Section 68 of the Evidence Act cannot be sustained, firstly, on the ground that the partition deed is not a document required by law to be attested. A Will, mortgage, gift and bond alone are required by law to be attested, more specifically, a Will under Section 68 of the Indian Succession Act, 1925, a mortgage deed under Section 59 and a gift deed under Section 123 of the Transfer of Property Act, 1882 and a bond under Section 2(5) of the Indian Stamp Act, 1899. Secondly, on the reason that only a signatory to the document and the person who executed the same directly and those who signed on the document as power of attorney holder, agent, guardian or representative alone would come under the purview of “by the person by whom it purports to have been executed” incorporated in the proviso to Section 68 of the Evidence Act, which is extracted below for reference:

“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 :

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.”(emphasis supplied)

2. The proviso to Section 68 of the Evidence Act is an exception to the main section by which the mandate of summoning an attesting witness in proof of execution of a registered document, other than a Will or Codicil, was excluded, unless its execution by the person by whom it purport