Proof of Documents under Sections 64 to 73 of the Bharatiya Sakshya Adhiniyam, 2023: Notice, Signature, Attestation and Comparison

Sections 56 to 63 answer the question how the contents of a document are proved. Sections 64 to 73 answer a different and prior question: how it is shown that the document is what it purports to be. Ten sections cover notice to produce, proof of signature and electronic signature, the special regime for attested documents, and the court's power to compare a disputed writing with a genuine one. They are among the most practically used provisions in the statute and the least often read carefully.

1. The Scheme

Section	Subject	IEA
64	Rules as to notice to produce	66
65	Proof of signature and handwriting of person alleged to have signed or written a document produced	67
66	Proof as to electronic signature	67A
67	Proof of execution of document required by law to be attested, with a proviso for registered documents	68
68	Proof where no attesting witness found	69
69	Admission of execution by party to attested document	70
70	Proof when attesting witness denies the execution	71
71	Proof of document not required by law to be attested	72
72	Comparison of signature, writing or seal with others admitted or proved	73
73	Proof as to verification of digital signature	73A

⚠ A numbering trap in this block

The rule that an attesting witness need not be called for a registered document, not being a will, is the proviso to Section 67 — not a separate section. It is easy to assume, from the arrangement in the Indian Evidence Act where it was the proviso to Section 68, that it became a section of its own. It did not, and the sections that follow are each one number lower than the corresponding provision of the earlier Act: Section 68 is proof where no attesting witness is found, Section 69 is admission of execution, and Section 70 is the case where the attesting witness denies execution.

2. Section 64 — Notice to Produce

Section 64, BSA — Rules as to notice to produce

Secondary evidence of the contents of the documents referred to in clause (a) of Section 60 shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, namely — when the document to be proved is itself a notice; when from the nature of the case the adverse party must know that he will be required to produce it; when it appears or is proved that the adverse party obtained possession of the original by fraud or force; when the adverse party or his agent has the original in Court; when the adverse party or his agent has admitted the loss of the document; or when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

Section 64 governs the procedural condition attaching to ground (a) of Section 60. Where the original is in the possession or power of the opposite party or of a person out of reach, secondary evidence is admissible only where notice to produce has been given and not complied with.

Two features deserve attention. The notice is required only for ground (a) — a party relying on loss under ground (c), or on the document being a public record under ground (e), need give no notice at all. And the six exceptions in the proviso are wide, particularly the second: where from the nature of the case the adverse party must know he will be required to produce the document, no notice is needed.

The practical value of a notice is greater than its formal requirement suggests. Where it is served and not complied with, two things follow: secondary evidence becomes admissible under ground (a), and the presumption under Illustration (g) to Section 119 becomes available — that evidence which could be produced and is not would, if produced, be unfavourable to the person withholding it. A notice therefore converts an evidential difficulty into an evidential advantage, and it costs nothing.

3. Section 65 — Proof of Signature and Handwriting

Section 65, BSA — Proof of signature and handwriting of person alleged to have signed or written document produced

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

This is the provision that makes proof of execution a distinct exercise from proof of contents. Producing a document proves what it says; Section 65 requires the party relying on it to establish that the signature or writing is that of the person alleged.

The routes by which this is done lie elsewhere in the statute, and there are four.

Direct evidence under Sections 54 and 55 — a witness who saw the document written or signed.
Admission by the writer under Sections 15 to 21, or under Section 69 where the document is attested.
Opinion of a person acquainted with the handwriting under Section 41(1), acquaintance being acquired in one of the three ways the Explanation specifies.
Expert opinion under Section 39(1), treated with the caution that the decisions on handwriting expertise prescribe.

To these must be added Section 72, under which the court may compare the disputed writing with one admitted or proved to be genuine — a supplementary route rather than a substitute for the others.

4. Section 66 — Electronic Signature

Section 66, BSA — Proof as to electronic signature

Except in the case of a secure electronic signature, if the electronic signature of any subscriber is alleged to have been affixed to an electronic record, the fact that such electronic signature is the electronic signature of the subscriber must be proved.

Section 66 is the electronic counterpart of Section 65 and states the same rule with one exception. An electronic signature must be proved, unless it is a secure electronic signature within the meaning of the Information Technology Act, 2000, in which case the presumptions in Sections 86 and 87 operate and separate proof is unnecessary.

The routes to proof, where proof is required, are Section 41(2) — the opinion of the Certifying Authority which issued the Electronic Signature Certificate — and Section 73, under which the court may direct verification of a digital signature.

5. Sections 67 to 71 — Attested Documents

Certain documents are required by law to be attested — a will under the succession legislation, and a mortgage deed and a gift of immovable property under the Transfer of Property Act, 1882. Attestation exists to guard against forgery and undue influence, and the Adhiniyam imposes a correspondingly stricter regime on proving such documents.

5.1 Section 67 — the rule and its proviso

Section 67, BSA — 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 Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.

The requirement is stringent and is expressed as a prohibition: the document shall not be used as evidence until an attesting witness has been called. It is not a matter of weight.

Three conditions qualify it, and all three must be checked. The attesting witness must be alive; he must be subject to the process of the court; and he must be capable of giving evidence. Where none is, Section 68 applies instead.

⚠ The will is the exception that survives registration

The proviso dispenses with an attesting witness for a registered document — but it expressly excludes a will. A will must be proved by calling an attesting witness under Section 67 whether or not it is registered, and registration adds nothing whatever to its proof. This is the single most consequential rule about attested documents in practice, and it is why probate proceedings turn so often on whether an attesting witness is alive and available.

The proviso also carries a second condition that is frequently overlooked: it applies unless the execution is specifically denied. Where a party specifically denies execution of a registered document, the dispensation falls away and an attesting witness must be called after all.

5.2 Section 68 — where no attesting witness is found

Where no attesting witness can be found, or where none is alive, subject to process and capable of giving evidence, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

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

5.3 Section 69 — admission of execution

The admission of a party to an attested document of its execution by himself is sufficient proof of its execution as against him, though the document be one required by law to be attested.

The provision is a considerable practical shortcut. Where the executant admits execution, the requirement to call an attesting witness falls away as against him, and the elaborate machinery of Sections 67 and 68 is not engaged. It applies as against him only, so an admission by one executant does not prove the document against another.

5.4 Section 70 — where the attesting witness denies execution

If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

The provision answers an obvious practical difficulty. An attesting witness may have died in all but name — he may be aged, he may genuinely not remember a document signed decades ago, or he may have been won over. Section 70 prevents a party from being defeated by a witness he was obliged to call, and permits execution to be established by any other means.

5.5 Section 71 — documents not required to be attested

An attested document not required by law to be attested may be proved as if it was unattested. Parties frequently have documents witnessed where no law requires it, and 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.

6. Section 72 — Comparison by the Court

Section 72, BSA — Comparison of signature, writing or seal with others admitted or proved

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This section applies also, with any necessary modifications, to finger impressions.

Two powers are conferred. The court may compare a disputed writing with one admitted or proved to be genuine; and it may direct a person present in court to write for the purpose of enabling that comparison.

The closing words extend both powers to finger impressions, and they are regularly overlooked.

📖 State (Delhi Administration) v. Pali Ram, (1979) 2 SCC 158

Held: The power under the provision corresponding to Section 72 is exercisable by a court in a proceeding before it, for the purpose of enabling the court to compare the writing with a writing alleged to have been made by that person and already before it. The section does not confer a general power to require specimen writings for the purposes of investigation. Although a court is competent to compare writings itself, it should ordinarily be slow to base a finding on its own comparison alone, and should seek the assistance of an expert where the question is genuinely contested.

Ratio: Section 72 is a trial power, not an investigative one, and judicial comparison alone is an unsafe foundation for a finding.

📖 State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC 343

Held: A Magistrate has no power under the provision corresponding to Section 72 to direct an accused to give specimen writings for the purposes of investigation, where no proceeding in which the writing is to be compared is pending before him. The Court noted the practical difficulty this created for investigating agencies and suggested that the legislature consider a suitable amendment.

Ratio: The gap identified in this decision was later filled by an express statutory power to order specimen signatures and handwriting during investigation, now carried forward in the Bharatiya Nagarik Suraksha Sanhita, 2023.

The position today is therefore twofold. During investigation, specimen signatures and handwriting are obtained under the express provision of the criminal procedure legislation inserted after Ram Babu Misra. At trial, the court may direct a person present before it to write, and may make its own comparison, subject to the caution in Pali Ram that it should be slow to found a finding on its own inspection alone.

No constitutional difficulty arises. Furnishing a specimen writing or a finger impression conveys no personal knowledge and is identificatory rather than testimonial, and Article 20(3) is not attracted — the position settled in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.

7. Section 73 — Verification of a Digital Signature

Section 73, BSA — Proof as to verification of digital signature

In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct — (a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate; (b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.

Section 73 is the electronic counterpart of Section 72, and the difference between them is instructive.

Under Section 72 the court compares, which is an exercise of judgment, and Pali Ram cautions that it should be slow to rely on its own. Under Section 73 the court directs a verification, which is a computation: the public key is applied, the hashes either match or they do not, and no judgment is involved.

This is the practical superiority of a digital signature in litigation. A disputed handwritten signature produces a contest between experts with no certain outcome; a disputed digital signature produces a definite answer.

The section speaks of a digital signature — the narrower expression — and is framed around public-key verification. It does not fit an electronic signature effected by some other technique, for which the routes are Section 41(2) and ordinary proof under Section 66.

8. Working Through a Document

Question	Provision	What must be done
Is the original with the other side?	Sections 64 and 60(a)	Serve notice to produce; on non-production, lead secondary evidence and seek the inference under Section 119
Is the document required by law to be attested?	Section 67	Call an attesting witness, unless the document is registered and is not a will and execution is not specifically denied
Is no attesting witness available?	Section 68	Prove the attestation and the executant's signature to be in their respective handwritings
Has the executant admitted execution?	Section 69	The admission is sufficient proof as against him
Does the attesting witness deny or not recollect?	Section 70	Prove execution by other evidence
Is the document attested but not required to be?	Section 71	Prove it as if unattested, under Section 65
Is the signature or writing disputed?	Section 65, with Sections 41(1), 39(1) and 72	Direct evidence, admission, acquainted person, expert, or comparison by the court
Is an electronic signature disputed?	Sections 66, 41(2) and 73	Prove it unless secure; obtain the Certifying Authority's opinion; seek verification

9. The Position Stated Shortly

Sections 64 to 73 govern proof of execution, a question distinct from proof of contents under Sections 56 to 63.
Notice to produce under Section 64 is required only for ground (a) of Section 60, and six exceptions in the proviso dispense with it.
Section 65 requires the signature or handwriting to be proved, and four routes exist, with comparison under Section 72 as a fifth.
Section 66 requires an electronic signature to be proved except where it is secure, in which case the presumptions operate.
Section 67 prohibits an attested document from being used until an attesting witness is called, subject to three conditions and a proviso.
The registered-document dispensation is the proviso to Section 67, it excludes a will, and it falls away where execution is specifically denied.
Sections 68, 69, 70 and 71 deal respectively with no attesting witness available, admission of execution, denial by the witness, and documents not required to be attested.
Section 72 is a trial power and not an investigative one — Pali Ram and Ram Babu Misra — and it extends to finger impressions.
Section 73 permits verification rather than comparison, and applies to a digital signature in the narrower sense.

10. Related Topics and Provisions

Topic or provision	Connection
Documentary Evidence — General Principles	The three questions, and the place of execution among them
Documentary Evidence — Sections 56 to 60	Proof of contents, the question that precedes this one
Expert Opinion vs Opinion of a Person Acquainted with Handwriting	Sections 39(1) and 41(1), the routes to proving a signature
Handwriting Expert Evidence	The caution attaching to expert opinion, and specimen writings
Electronic Signature and Digital Signature	Sections 66, 41(2) and 73, and the presumptions in Sections 85 to 87
Kinds of Secondary Evidence	Ground (a) of Section 60, for which notice under Section 64 is required
Section 92, BSA	The thirty-year presumption, which operates with Section 68
Section 119, Illustration (g), BSA	The inference from failing to produce after notice