Property Law

Bayanabai Kaware v. Rajendra

(2018) 1 SCC 585

Facts

Rajendra purchased a plot from a housing co-operative society through a registered sale deed dated 29 December 1981.
He claimed that Bayanabai later encroached upon the plot and erected a hut.
Bayanabai asserted that she had been placed in possession under an earlier agreement and had acquired title by adverse possession.
The trial court rejected Rajendra’s suit partly because:
no attesting witness to the sale deed had been examined; and
it considered the document insufficiently proved.
The first appellate court rejected Bayanabai’s adverse-possession claim but still dismissed the suit because of the supposed failure to prove the sale deed.
The High Court decreed possession in Rajendra’s favour.

Whether a registered sale deed must be proved by examining its vendor or attesting witnesses.
Whether the formal proof required for a gift or mortgage also applies to a sale.

Section 54 TPA requires a registered instrument for sale of valuable immovable property.
It does not require a sale deed to be attested by witnesses.
By contrast:
Section 59 requires attestation for specified mortgages; and
Section 123 requires attestation by two witnesses for a gift.
Section 68 of the Evidence Act applies where the law requires a document to be attested.
It therefore does not ordinarily require examination of an attesting witness to prove a sale deed.

Rajendra produced the registered sale deed and entered the witness box to prove his purchase.
Bayanabai did not dispute that the housing society possessed title before the sale.
She had herself traced the property to a person allegedly deriving rights from the same society.
No timely objection was taken when the sale deed was exhibited.
The lower courts wrongly imported the attestation requirements applicable to gifts into an ordinary sale.
Since attestation was not legally compulsory, Rajendra was not required to summon:
an attesting witness; or
the society’s representative, merely to satisfy Section 68.
The registered deed, Rajendra’s evidence and the admitted title of the vendor sufficiently proved the sale.
Bayanabai’s alternative plea of adverse possession had already been rejected and had attained finality.
Rajendra therefore established a better title than a person possessing the land without any valid conveyance.

The registered sale deed had been duly proved.
A sale deed does not require attestation, and Section 68 did not compel examination of an attesting witness.
Rajendra was entitled to possession on the basis of his superior title.
Bayanabai’s appeal was dismissed.