Proof of Attested Documents: Rules & Exceptions (IEA vs BSA)

The rule requiring the examination of an attesting witness before a document can be used in evidence is one of the most firmly established principles of Indian evidence law — a rule designed to protect the integrity of those solemn instruments to which the law attaches the requirement of attestation. Yet, as with all firm rules in law, the edges are defined by a series of carefully calibrated exceptions that recognize practical realities. The architecture of Sections 68 to 71 of the Indian Evidence Act, 1872 (Sections 67 to 70 of the Bharatiya Sakshya Adhiniyam, 2023) together constitutes a complete and coherent code for the proof of attested documents.

The General Rule — Section 68 (Section 67, BSA)

Section 68 of the Indian Evidence Act (Section 67, BSA 2023) lays down the foundational rule with admirable simplicity: if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution — provided that such a witness is alive, subject to the process of the court, and capable of giving evidence.

This is not a permissive or enabling provision. The Supreme Court has firmly held that it lays down the mandatory requirements which the court must observe before a document can be held to be proved. The principle underlying the section is that execution must be proved by at least one attesting witness who is entitled to speak to the execution of the document from personal knowledge — having either seen the executant sign or affix his mark, or having received from the executant a personal acknowledgment of his signature.

Documents which require attestation by law and to which this section applies are primarily: (i) a will, under Sections 57 and 63 of the Indian Succession Act, 1925; (ii) a mortgage where the principal money secured is Rs. 100 or more, under Section 59 of the Transfer of Property Act, 1882; and (iii) a gift of immovable property, under Section 123 of the Transfer of Property Act. Any such document that is not duly attested is not even valid in law.

The word "called" in the section means tendered for the purpose of giving evidence — it does not mean merely summoned. The court further clarified that it is not necessary for the attesting witness, in order to prove execution, to point specifically to the signature or mark made by the executant. What matters is that the witness deposes to the execution and to his having attested it with the animus attestandi — the intention of attesting.

The important requirement of animo attestandi was settled by the Supreme Court in ML Abdul Jabbar Sahib v H Venkata Sastri and Sons (AIR 1969 SC 1147), where it was held that a person who signs a document for some other purpose — as a scribe, an identifier, or a registering officer — does not thereby become an attesting witness, even if he was present when the document was executed. The witness must have signed the document for the very purpose of testifying to the executant's signature or mark.

What "Execution" Means — A Critical Aspect

A common misconception is that execution means only the signature of the executant. The courts have firmly corrected this. Execution means not only the signing by the executant but also the attestation of his signature by witnesses where the law requires it. It further includes that the executant signed after understanding the contents of the document. As the Supreme Court held in Dhannulal v Ganeshram (AIR 2015 SC 2382), proof of will requires clear evidence that its contents were read over to the executant, that he approved them and then put his signature in the presence of the attesting witnesses.

The Exceptions — When Attestation Need Not Be Formally Proved

Exception 1: The Registered Document Proviso (Section 68, Proviso / Section 67, BSA)

The most significant exception in everyday legal practice was introduced by an amendment in 1926. The proviso to Section 68 declares that it is not necessary to call an attesting witness to prove the execution of a document that:

is not a will, and has been registered under the Indian Registration Act, 1908

— unless its execution is specifically denied by the person by whom it purports to have been executed.

This exception substantially eases the burden of proof for registered mortgages, gift deeds and other registered instruments. The word "specifically denied" is critical. A mere general denial of the mortgage, or a denial of the genuineness of the document without specifically denying its execution, is not enough. It must be a clear, positive and specific denial by the person against whom the document is sought to be used. In Rosammal Issethenammal Fernandez v Joosa Mariyan Fernandez (AIR 2000 SC 2857), the Supreme Court held that the denial must not be vague and that the pleadings of the parties must be considered while recording a finding as to whether execution has been specifically denied.

The proviso was interpreted purposively by the Madras High Court in Thayammal v A Mutukumaraswami Chettiar (AIR 1929 Mad 881) to have retrospective effect, since it relates to procedural rather than substantive law. Notably, the proviso does not apply to wills. Even a registered will must always be proved by examining at least one attesting witness if the execution is in dispute, because the formality of attestation surrounds the will with indispensable safeguards against fraud and undue influence.

Exception 2: When No Attesting Witness Can Be Found — Section 69 (Section 68, BSA)

Section 69 provides an entirely different avenue of proof: when no attesting witness can be found — whether because all of them have died, have gone out of jurisdiction, or cannot be traced after diligent search — the propounder of the document is permitted to prove, cumulatively, two facts: (i) that the attestation of at least one attesting witness is in his handwriting, and (ii) that the signature of the executant is in his handwriting. Both these must be proved together; neither alone is sufficient.

This section imposes a twin duty on the propounder. As the Kerala High Court explained in CG Raveendran v CG Gopi (AIR 2015 Ker 250), the section presumes that once the handwriting of the attesting witness is proved, he has witnessed the execution of the document. In Uttam Singh v Hukam Singh (1917) 39 All 112, all the marginal witnesses to a mortgage deed were dead; the court allowed the deed to be proved by evidence showing that the signatures of both the mortgagor and the attesting witnesses were in their respective handwritings.

Exception 3: Admission by the Executant — Section 70 (Section 69, BSA)

Section 70 of the Evidence Act (Section 69, BSA) provides a third route: the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, even though the document is one required by law to be attested.

This section dispenses with the requirement of calling an attesting witness when the executant himself concedes in the pleadings or in the course of the proceedings that he executed the document. If a mortgagor admits in his written statement that he executed the mortgage deed, the mortgagee need not call any attesting witness to prove execution as against the mortgagor. The leading authority on the nature of this admission is controversial as between High Courts. The Calcutta, Allahabad and Madras High Courts hold that the admission must be a formal one made in the pleadings or during the course of the trial. The Patna and Rangoon High Courts took a broader view that even an admission made before the institution of proceedings is admissible. The former view appears more consistent with the context and purpose of the section.

An important caveat must be noted: Section 70 operates only as against the executant himself. The admission does not bind others. Moreover, the court cannot shut its eyes to obvious facts on the face of the document — if it positively appears that a document required to be attested has not been attested in accordance with law, Section 70 cannot save it even on the executant's admission.

Exception 4: Attesting Witness Denies or Does Not Recollect — Section 71 (Section 70, BSA)

Section 71 of the Evidence Act (Section 70, BSA) provides a safeguard for a difficult and not uncommon situation: if the attesting witness who is produced denies or does not recollect the execution of the document, its execution may be proved by other evidence.

This is an exception of limited application and must be invoked with great care. The Supreme Court in Janki Narayan Bhoire v Narayan Namdeo Kadam (AIR 2003 SC 761) — a landmark decision on this provision — held unequivocally that Section 71 cannot be used to circumvent the mandatory rule in Section 68. The propounder may take the benefit of Section 71 only if the attesting witness who is alive and produced in court either clearly and unhesitatingly denies the execution or genuinely cannot recollect it. The denial or forgetfulness must be credible and impartial — not a casual or suspicious account.

Where one attesting witness could not recollect the execution and another attesting witness was available but was not called, the court firmly held that the will was not proved as the mandatory requirement of Section 68 had not been satisfied. Section 71 is not a licence to bypass Section 68 altogether. It supplements Section 68 only when the attesting witness produced genuinely fails to prove the execution for the stated reasons, and not when the propounder simply finds it convenient to avoid producing a witness who is alive and competent.

Exception 5: Document Not Required by Law to Be Attested — Section 72 (Section 71, BSA)

Section 72 of the Evidence Act (Section 71, BSA) completes the scheme by providing that an attested document not required by law to be attested may be proved as if it were unattested. Parties sometimes get documents attested out of abundant caution even when the law does not require attestation — a sale deed, for instance, which is required to be registered but not attested. Such a document can be proved like any ordinary document, without calling any attesting witnesses.

The Proof of a Will — A Higher Standard

Among documents requiring attestation, the will occupies a position of special solemnity. Proof of a will stands at a higher degree compared to other documents and is governed by the specific requirements of Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act.

The propounder of the will must, as a general rule, examine at least one attesting witness — and that attesting witness must be able to depose not only to the testator's signature but also to having signed the will in the presence of the testator. The attesting witnesses need not both be present at the same time; they may attest at different times, each having received a personal acknowledgment from the testator.

The propounder must also dispel all suspicious circumstances surrounding the will. Where a will was executed when the testator was six hours away from death, with the signature on the side margin instead of the bottom, and doubts arose about the presence of attesting witnesses — the court denied probate on the ground that suspicious circumstances were not satisfactorily explained (JT Surappa v Satchidhanandendra, AIR 2008 NOC Kar). In Bharpur Singh v Shamsher Singh (AIR 2009 SC 1766), the Supreme Court reiterated that where execution is surrounded by suspicious circumstances, the propounder must offer a reasonable explanation.

One refined question has arisen — whether Section 58 of the Evidence Act (facts admitted need not be proved) can override Section 68 in the case of a will when the execution is not disputed in the pleadings. In Thayyullathil Kunhikannan v Thayyullathil Kalliani (AIR 1990 Ker 226), a Division Bench of the Kerala High Court, later approvingly noticed by the Delhi High Court in Neelam Sahgal v Seema Mehra (2017 SCC OnLine Del 8743), held that Section 58 has to be read as overriding Section 68 when execution and attestation are not in dispute. In the absence of any plea denying the will in the written statement, to insist on the formal examination of an attesting witness would be the height of technicality and a waste of judicial time.

A Synoptic View

The complete scheme of Sections 68 to 72 of the Indian Evidence Act, and their BSA counterparts, can be summarised as follows:

General Rule (S. 68 / S. 67 BSA): One attesting witness must be called — if alive, subject to process, and capable.
Proviso to S. 68: Not necessary to call an attesting witness for a registered non-will document, unless execution is specifically denied.
S. 69 / S. 68 BSA: If no attesting witness can be found, prove both the handwriting of the attesting witness and the handwriting of the executant.
S. 70 / S. 69 BSA: Admission of execution by the executant himself dispenses with formal proof against him.
S. 71 / S. 70 BSA: If the attesting witness denies or does not recollect the execution, other evidence may be led — but this is a strict exception, not a shortcut around Section 68.
S. 72 / S. 71 BSA: A document attested but not required by law to be attested is proved as if it were unattested.

Together, these provisions reflect the legislature's wisdom: the general rule ensures authenticity; the exceptions ensure that justice is not defeated by the unavailability, hostility or lapses of memory of attesting witnesses, while keeping the propounder always anchored to the duty of proving the document's genuineness by the best available means.