Proof of Signature and Handwriting under Section 65 of the Bharatiya Sakshya Adhiniyam, 2023: The Six Modes and Their Relative Weight

Producing a document proves what it says. It does not prove who wrote or signed it, and Section 65 requires that to be proved separately. Six routes exist, they differ enormously in weight, and the one most often used in contested cases is the weakest of the six. A party who identifies the strongest route available to him before the trial begins will usually find that the question of handwriting never becomes contentious at all.

1. The Provision

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.

Section 65 corresponds to Section 67 of the Indian Evidence Act and is carried forward unchanged.

Three features of the drafting deserve attention.

'Must be proved' — the obligation is mandatory and lies on the party relying on the document. The production of a document bearing a signature is not evidence that the person named signed it.

'Wholly or in part' — where only part of a document is alleged to be in a person's hand, only that part need be proved. This matters with documents completed by several hands: a printed form filled in by a clerk and signed by a party requires proof only of the signature, unless the entries themselves are attributed to him.

'So much of the document as is alleged' — the obligation is confined to what is attributed. A party who does not allege that an endorsement is in the executant's hand need not prove it.

⚠ Execution and contents are different questions

Section 65 belongs to the group dealing with proof of execution, and it is entirely separate from Sections 56 to 63, which deal with proof of contents. A party may satisfy one and not the other. Producing the original proves the contents and leaves the signature to be proved; proving the signature establishes execution and leaves the contents to be proved if the original is unavailable. A third question lies beyond both: proof of execution does not make the statements in the document true.

2. The Six Modes

Mode	Provision	Weight
Direct evidence — a witness who saw the document written or signed	Sections 54 and 55	Highest, subject to the witness's credibility
Admission by the writer	Sections 15 to 21; Section 69 for attested documents	Very high — substantive evidence against him
Opinion of a person acquainted with the handwriting	Section 41(1)	Moderate to high, depending on the extent of familiarity
Circumstantial proof of execution	Sections 5 to 14 generally	Variable, and frequently underestimated
Expert opinion	Section 39(1), with Sections 40 and 45	Lowest of the six in practice, and approached with caution
Comparison by the Court	Section 72	Supplementary — used with restraint, and rarely alone

To these must be added a seventh route that operates without proof at all: the presumptions in Sections 78 to 93, which relieve a party of proving execution in defined situations.

3. Direct Evidence

The strongest and simplest route. A witness who saw the document written or signed deposes to what he perceived, and his evidence is direct within Section 55 because the writing was a fact he observed.

Such a witness need not be an attesting witness and need not have any expertise. A clerk who was in the room, a person who handed over the pen, a party who watched the signature being made — each can prove execution.

Where the document is required by law to be attested, this route is not merely available but obligatory in a particular form: Section 67 prohibits the document from being used as evidence until at least one attesting witness has been called, subject to its proviso and to Sections 68 to 70.

4. Admission

An admission of execution by the person alleged to have signed is the most efficient route and disposes of the question entirely as against him.

It operates in three ways. In the pleadings, where failure to deny specifically produces a deemed admission under the rules of pleading and Section 53 relieves the party of proof. In evidence, where the executant admits execution in the witness box. And outside the proceeding, under Sections 15 to 21, where the person has acknowledged the document in correspondence, in accounts or in another transaction.

For attested documents there is a specific provision. Section 69 provides that the admission of a party to an attested document of its execution by himself is sufficient proof of its execution as against him, notwithstanding that the document is one required by law to be attested. The words 'as against him' confine the effect: an admission by one executant does not prove the document against another.

5. The Acquainted Person

Section 41(1), BSA — Opinion as to handwriting

When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person, is a relevant fact.

Explanation. — A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

This is the route most used in ordinary civil litigation and it is frequently the strongest available after direct evidence and admission. A partner who has handled his colleague's writing daily for twenty years, or a bank official who has processed a customer's cheques for a decade, gives an opinion resting on a volume of exposure no expert could match.

⚠ The Explanation is exhaustive

Acquaintance may be acquired in three ways and no others. A witness who says only that he is 'familiar with' the handwriting, or that he has 'often seen it', without bringing himself within one of the three modes, has laid no foundation and his opinion is not receivable at all. This is the commonest defect in handwriting evidence and it is entirely avoidable: the witness should be taken through the mode expressly in examination-in-chief.

The weakness of such a witness is interest. He is almost always connected with a party, and his recognition may be coloured by expectation. Where the acquainted witnesses on the two sides contradict one another, the question cannot be resolved on familiarity alone.

6. Circumstantial Proof

This route receives little attention and is frequently the most persuasive, because it does not depend on anybody's opinion about the appearance of writing.

Execution may be established by circumstances from which it follows that the person must have signed. The material available includes the following.

Conduct acting upon the document — that the person performed the obligations it imposes, accepted the benefit it confers, or relied on it in dealings with others.
Acknowledgment in other writings — a reference to the document in later correspondence, in accounts, or in a subsequent instrument.
Custody — that the counterpart was in the person's possession, or that the document came from a place where only his documents were kept.
Contents known only to him — where the document recites matters within the person's exclusive knowledge.
Opportunity and circumstances — relevant under Sections 5 and 7 as the state of things under which the execution is said to have occurred.
The conduct of the party denying — under Section 6(2), a denial made only after a long delay, or after the document had been acted upon, is itself conduct.

A denial of signature met by evidence that the person acted on the document for years is in considerable difficulty, whatever an expert may say about the appearance of the signature.

7. Expert Opinion

The route most often used in contested cases and the weakest of the six. A handwriting expert does not know the writer; he compares the disputed writing with standards, applying criteria the discipline recognises, and his conclusion is worth exactly what his reasoning is worth.

📖 Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210

Held: It is unsafe to base a conviction solely on the opinion of a handwriting expert. Such opinion evidence is of a frail character and is hedged about with a great many uncertainties. Before acting upon it, the court must seek independent and reliable corroboration.

Ratio: The classical statement of the caution with which such evidence is treated.

📖 Murari Lal v. State of Madhya Pradesh, (1980) 1 SCC 704

Held: There is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that the opinion of a handwriting expert must never be acted upon unless substantially corroborated. But the imperfections of the science and the risk of error are such that the approach should be one of caution, and the reasons for the opinion must be carefully probed. Where the reasons are convincing and no reliable evidence throws doubt on them, there is no reason to distrust the opinion.

Ratio: No absolute rule, but everything turns on the reasoning offered.

The reconciliation is between a rule and a practice. There is no rule requiring corroboration; there is a settled practice of looking for it, because handwriting is a discipline in which competent examiners honestly differ.

Two further requirements apply to any expert. His competence must be established before the opinion is received, and an opinion given without a foundation is not receivable at all. And he must furnish reasons and data — an expert who states a conclusion without identifying the characteristics compared, producing enlargements, or addressing the differences has given the court nothing to test.

8. 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.

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

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

📖 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 already before it. It 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: A trial power, not an investigative one, and judicial comparison alone is an unsafe foundation.

The power is properly exercised in three situations: where the comparison confirms an expert opinion already given; where the difference is so obvious that no expertise is required; and where the court is testing an expert's reasoning by looking for itself at the characteristics he identified.

A note on obtaining specimens. Section 72 is a trial power. During investigation, specimen signatures and handwriting are obtained under the express provision of the criminal procedure legislation inserted after State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC 343 held that no such power existed and invited the legislature to supply one. No constitutional difficulty arises: a specimen writing conveys no personal knowledge and is identificatory rather than testimonial — State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.

9. Where Proof Is Dispensed With

Three situations relieve a party of proving handwriting altogether, and they should be checked before any of the six modes is attempted.

Public documents. Where the document is a public document within Section 74, a certified copy is admissible under Section 76 and Section 78 permits the court to presume it genuine and to presume that the officer signing it held the office he claims. Execution need not be proved.

Documents thirty years old. Under Section 92, where a document purporting or proved to be thirty years old is produced from proper custody, the court may presume 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. This is indispensable in title and pedigree litigation, where every executant and attestor has long since died.

Electronic records five years old. Under Section 93, where an electronic record purporting or proved to be five years old is produced from proper custody, the court may presume that the electronic signature was affixed by the person by whom or on whose behalf it purports to have been affixed.

10. Choosing the Route

The modes are not alternatives of equal value, and the order in which they should be considered is the reverse of the order in which they are usually reached for.

Is a presumption available? Public document, thirty years old, or an electronic record five years old. If so, no proof is needed.
Will the executant admit? An admission in the pleadings, in a notice to admit under Order XII of the Code of Civil Procedure, 1908, or in cross-examination disposes of the question.
Is there a witness who saw it signed? Direct evidence is the strongest proof available.
Is there a person acquainted with the handwriting within one of the three modes in the Explanation to Section 41(1)?
What circumstances establish execution? Conduct, acknowledgment, custody, and the timing of any denial — frequently more persuasive than any opinion.
Only then, an expert, with his competence established, his standards adequate and his reasoning set out.
Comparison by the court as a supplement, not as the foundation of a finding.

11. The Position Stated Shortly

Section 65 requires the signature or handwriting to be proved, and production of the document proves nothing about who signed it.
Only so much as is alleged need be proved, which matters with documents completed by several hands.
Six modes exist, and they differ enormously in weight.
Direct evidence and admission are the strongest, and an admission by a party to an attested document is sufficient proof as against him under Section 69.
The Explanation to Section 41(1) is exhaustive, and a witness must bring himself within one of the three modes.
Circumstantial proof is underused and is frequently the most persuasive, because it does not depend on opinion about appearance.
Expert opinion is the weakest of the six, approached with caution though subject to no absolute rule requiring corroboration.
Presumptions under Sections 78, 92 and 93 dispense with proof altogether, and should be checked first.

12. Related Topics and Provisions

Topic or provision	Connection
Proof of Documents — Sections 64 to 73	The block as a whole
Expert Opinion vs Opinion of a Person Acquainted with Handwriting	Sections 39(1) and 41(1) compared
Handwriting Expert Evidence	Standards, method and lines of attack
Documentary Evidence — General Principles	The three questions, and the place of execution
Proof of Electronic Signature — Section 66	The electronic counterpart of this section
Section 72, BSA	Comparison by the court, extending to finger impressions
Sections 78, 92 and 93, BSA	Presumptions dispensing with proof of execution
Sections 67 to 71, BSA	The stricter regime for attested documents