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Article
Published in the Express Magazine Dated July 29,
2001
General Attorney : Rajiv K. Luthra
If a person attests a document as a witness,
but declines at a later stage from having even
seen it, how would the Courts determine the
authenticity of such a document?
Tulika Srivastava, New Delhi
WITNESSES turning hostile is an often discussed
issue these days and a number of judgments have
been pronounced by the Supreme Court in this
matter. Regarding evidence of a document, it is
provided by the Indian Evidence Act, 1872, that a
document, which is required by law to be attested,
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 capable of giving evidence and
subject to the process of the court. However, it
is not necessary to call an attesting witness in
proof of execution of any document, other than a
Will, which has been registered in accordance with
the provisions of the Indian Registration Act,
1908, unless its execution by the person for whom
it purports to have been executed is specifically
denied.The mere fact that the attesting witnesses
to a document have repudiated their signatures
does not invalidate the document, if it can be
proved by evidence of a reliable character that
they have given false testimony. The principle is
well settled that when the evidence of the
attesting witnesses is vague, doubtful or even
conflicting upon some material point, the Court
may take into consideration the circumstances of
the case and judge from them collectively, whether
the requirements of the Statute were complied
with. In other words, the Court may, on
consideration of other evidence and circumstances
of the case, come to the conclusion that their
recollection is at fault, that their evidence is
of a suspicious character, or that they are
willfully misleading the Court. When this is the
case, the Court may disregard the testimony of the
attesting witnesses and pronounce in favor of the
document. The evidence of an attesting witness
who, while admitting the signature, denies that he
signed it in the manner required by law, can
always be rebutted by other evidence showing that
the document was properly witnessed and attested.
Therefore, if an attesting witness called by a
party turns hostile, attestation of the instrument
may be proved by other evidence, so that the
document still can be used as evidence.
In a dispute with the Government, the Court
executed a decree against me for damages payable
to the Government. I have been told that property
is normally attached. Since I own no property, I
wonder what possession of mine would be attached.
As a Government employee, my only fear is whether
they would attach my provident fund and pension in
order to pay up the amount ordered?
Raghav Rawail, Nagpur
It is true that under Section 60 of the Code of
Civil Procedure, 1908 (CPC) properties of the
judgment-debtor maybe attached and sold in
execution of a decree. But, this section also
states the exceptions to properties liable for
attachments and sale. Under the CPC and under the
Public Provident Fund Act, 1968, the provident
fund is exempted from attachment. An amount
standing to the credit of any subscriber in the
Fund shall not be liable to attachment under any
decree or order of any court in respect of any
debt or liability incurred by the subscriber.
However, there are judgments to the effect that
once the provident fund amount is paid out, it can
be attached. According to the Pensions Act of
1971, no pension granted or continued by
government on account of past services and no
money due or becoming due on account of any such
pension or allowance shall be liable to seizure,
attachments or sequestration by process of any
Court for any demand by a creditor against the
pensioner or in satisfaction of a decree or order
of any such Court.
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