Proof of Attested Documents under Sections 67 to 71 of the Bharatiya Sakshya Adhiniyam, 2023

Attestation exists because certain transactions are too consequential to be left to the word of the parties alone. A will disposes of an estate after its maker is dead; a mortgage encumbers land; a gift transfers it for nothing. The law requires witnesses to these, and the Adhiniyam correspondingly requires that a witness be called before such a document may be used in evidence at all. Five sections govern the position, and the trap in the block is that the relaxation everybody remembers is a proviso rather than a section.

1. Which Documents Are Attested

The Adhiniyam does not say which documents require attestation. That comes from the substantive law, and the principal instances are three.

• A will, under Section 63 of the Indian Succession Act, 1925, which requires attestation by two or more witnesses.
• A mortgage other than a mortgage by deposit of title deeds, under Section 59 of the Transfer of Property Act, 1882, requiring attestation by at least two witnesses.
• A gift of immovable property, under Section 123 of the Transfer of Property Act, 1882, requiring attestation by at least two witnesses.

The first question with any attested document is therefore whether attestation was required by law or was merely added by the parties. Sections 67 to 70 apply only to the first class; the second is governed by Section 71 and is proved like any other document.

2. Section 67 — The Rule

Section 67 corresponds to Section 68 of the Indian Evidence Act.

2.1 A prohibition, not a rule of weight

The section is expressed negatively: the document shall not be used as evidence until an attesting witness has been called. This is stronger than a rule about what evidence is required. A document that has not been proved in the prescribed manner is not merely weak; it cannot be used at all, and a decree founded on it is open to challenge.

2.2 The three conditions

The obligation to call a witness is qualified. It applies only if there is an attesting witness who is alive, subject to the process of the court, and capable of giving evidence. All three must be satisfied, and the failure of any one takes the case to Section 68 instead.

Alive is a question of fact. Subject to the process of the court excludes a witness beyond the court's territorial reach or otherwise not amenable to its summons. Capable of giving evidence excludes a witness who has become incapable through illness, infirmity or age — a question on which medical evidence may be required.

The party relying on the document must establish the failure of these conditions before he may proceed under Section 68. An assertion that a witness could not be traced, unsupported by evidence of a search, is not enough.

2.3 One witness is enough

The section requires at least one attesting witness to be called, even where the substantive law required two or more to attest. This is a significant relaxation and is the reason most attested documents are proved without difficulty.

But what that one witness must prove is more than is often appreciated.

2.4 The proviso

The proviso dispenses with an attesting witness where the document is registered under the Registration Act, 1908. Two conditions limit it, and both are regularly overlooked.

It excludes a will. A will must be proved by calling an attesting witness whether or not it is registered. Registration of a will adds nothing whatever to its proof, and this is the single most consequential rule in the block.

It falls away where execution is specifically denied. Where the party against whom a registered document is produced specifically denies its execution by the person by whom it purports to have been executed, the dispensation does not operate and an attesting witness must be called after all. A general denial in a written statement will not do; the denial must be specific.

3. Section 68 — Where No Attesting Witness Is Available

Section 68 corresponds to Section 69 of the Indian Evidence Act.

Where the conditions in Section 67 fail — no attesting witness alive, amenable and capable — this section supplies the alternative. Two things must be proved and both are required.

1. That the attestation of at least one attesting witness is in his handwriting. This is proved by the ordinary routes to handwriting under Section 65 — a person acquainted with the witness's hand under Section 41(1), an expert under Section 39(1), or comparison under Section 72.
2. That the signature of the executant is in his handwriting. Proved in the same way.

The provision is the route by which old attested documents are proved after everybody connected with them has died, and it works together with Section 92, the thirty-year presumption, which permits the court to presume, of a document that old produced from proper custody, that the signature and every other part of it purporting to be in a person's handwriting is in that person's handwriting and that it was duly executed and attested.

4. Section 69 — Admission of Execution

Section 69 corresponds to Section 70 of the Indian Evidence Act, and it is the most efficient route in the whole block.

Where the executant admits execution, the requirement to call an attesting witness falls away entirely as against him, and the machinery of Sections 67 and 68 is not engaged at all. The admission may be in the pleadings, in evidence, or outside the proceeding under Sections 15 to 21.

Two limits attach. The words 'as against him' confine the effect: an admission by one executant proves the document against him alone, and where there are several executants the document is not thereby proved against the others. And the section speaks of a party to the document — an admission by somebody who did not execute it is not within the section, though it may be relevant on other footings.

The practical consequence is that a notice to admit documents, served under Order XII of the Code of Civil Procedure, 1908, is worth serving in every case involving an attested document. Where it produces an admission, the proof problem disappears; where it does not, the refusal carries a consequence in costs.

5. Section 70 — Where the Attesting Witness Fails

Section 70 corresponds to Section 71 of the Indian Evidence Act, and it answers an obvious difficulty.

A party is compelled by Section 67 to call an attesting witness. He has no choice in the matter and no control over what the witness says. The witness may have been won over, may have grown old and genuinely not remember a signature made decades earlier, or may simply be hostile. Without Section 70 the party would be defeated by a witness the statute obliged him to call.

The section therefore permits execution to be proved by any other evidence — the second attesting witness, a person who saw the document executed, the scribe, evidence of the executant's handwriting under Section 65, circumstantial evidence of execution, or an admission.

A further point of practice. Where the attesting witness turns hostile, the party calling him may apply under Section 157 for leave to put questions which might be put in cross-examination. That is a separate matter from Section 70: Section 157 addresses how the witness may be questioned, while Section 70 addresses what may be proved once he has failed.

6. Section 71 — Documents Not Required to Be Attested

Section 71 corresponds to Section 72 of the Indian Evidence Act.

Parties frequently have documents witnessed where no law requires it — sale deeds, agreements, promissory notes, receipts, partnership deeds. Section 71 makes clear that the voluntary addition of witnesses does not import the stricter regime. Such a document is proved under Section 65 like any other, by any of the ordinary modes.

The distinction therefore matters in a very practical way. A party met with the objection that no attesting witness has been called should ask first whether attestation was required by law. If it was not, Section 71 disposes of the objection entirely.

7. The Block in Sequence

8. Attestation Itself

Since the block turns on attestation, it is worth being clear about what attestation requires, because a document bearing signatures described as those of witnesses is not necessarily attested.

The substantive law requires, in substance, that each attesting witness has either seen the executant sign or affix his mark, or has received from the executant a personal acknowledgment of his signature; and that each witness has signed the document in the presence of the executant.

Two consequences follow that arise constantly in practice.

A witness who did not see the signing and received no acknowledgment is not an attesting witness, however his signature is described. Calling him does not satisfy Section 67, and a party who calls such a witness and rests has not proved the document.

The intention to attest matters. A person who signed the document in some other capacity — as a scribe, as an identifier before the registering officer, or as a party — is not thereby an attesting witness, unless he signed with the intention of attesting the execution. This is a question of fact on which the witness should be examined expressly.

9. Practical Points

1. Establish first whether attestation was required by law. If not, Section 71 ends the enquiry.
2. Serve a notice to admit under Order XII of the Code of Civil Procedure, 1908. An admission under Section 69 disposes of the problem entirely as against the executant.
3. Trace the attesting witnesses early. Where they are elderly, the difference between Section 67 and Section 68 may be a matter of months.
4. Examine the witness on both attestations, following Janki Narayan Bhoir, and not merely on his own signature.
5. Examine the witness on the requirements of attestation — that he saw the executant sign or received a personal acknowledgment, and that he signed in the executant's presence.
6. Where the witness fails, invoke Section 70 expressly and identify what other evidence is relied upon.
7. Where no witness is available, prove the search before proceeding under Section 68; an assertion is not enough.
8. Do not rely on Section 92 for a will, however old it is.

10. The Position Stated Shortly

1. Section 67 is a prohibition — an attested document shall not be used as evidence until an attesting witness has been called.
2. Three conditions qualify it — the witness must be alive, subject to process, and capable of giving evidence.
3. One witness suffices procedurally, but he must prove both attestations — Janki Narayan Bhoir.
4. The registered-document dispensation is the proviso to Section 67, it excludes a will, and it falls away where execution is specifically denied.
5. Section 68 applies where no attesting witness is available, and requires proof of the attestor's and the executant's handwriting.
6. Section 69 makes an admission sufficient proof as against the admitting party, and is the most efficient route.
7. Section 70 rescues a party whose attesting witness denies or does not recollect, but the witness must be called first.
8. Section 71 removes the whole regime for documents attested voluntarily where no law required it.

11. Related Topics and Provisions