​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof of Execution of Documents Required by Law to Be Attested [Section 67]

1. Introduction
​Certain documents acquire legal validity only when they are attested in the manner prescribed by law. Because of their special nature, the Bharatiya Sakshya Adhiniyam, 2023 lays down strict rules regarding the proof of execution of such documents. Section 67 embodies this principle by mandating examination of attesting witnesses, subject to limited and well-defined exceptions.

2. Statutory Provision
Section 67 provides that:

• Where a document is required by law to be attested,
• It cannot be used as evidence unless at least one attesting witness is called to prove its execution,
• Provided that the attesting witness is:
  • Alive,
  • Subject to the process of the Court, and
  • Capable of giving evidence.

Proviso:
It shall not be necessary to call an attesting witness for proving the execution of a registered document (other than a Will), unless its execution by the executant is specifically denied.

3. Scope and ApplicabilitySection 67 applies only to documents which the law requires to be attested. Common examples include:

• Mortgages under Section 59 of the Transfer of Property Act, 1882;
• Gifts under Section 123 of the Transfer of Property Act, 1882;
• Wills under the Indian Succession Act, 1925.

In such cases, proof of execution ordinarily demands oral testimony of an attesting witness.

4. Rule Requiring Examination of Attesting WitnessThe general rule under Section 67 is mandatory:

• At least one attesting witness must be examined to prove:
  • Execution by the executant, and
  • Attestation as required by law.

Failure to comply renders the document inadmissible as evidence, unless an exception applies.

5. Exceptions to the General RuleThe requirement of examining an attesting witness is relaxed in the following situations:

1. Non-availability of attesting witnesses
   • Where no attesting witness is alive, available, or capable of giving evidence (Sections 68–70 apply).
2. Registered documents (other than Wills)
   • If the document is registered and
   • Its execution is not specifically denied by the person who purports to have executed it.

⚠️ Important:
This relaxation does not apply to Wills, even if they are registered.

6. Meaning of “Attesting Witness”An attesting witness is a person who:

• Has seen the executant sign or affix his mark to the document, and
• Has signed the document as a witness with the intention of attesting it.

A scribe, though not an attesting witness, may prove execution if he witnessed the signing by the executant.

7. Effect of Non-Denial of ExecutionIf execution is not specifically denied, especially in the case of a registered document:

• Formal proof by examining attesting witnesses is unnecessary;
• Certified copies issued under the Registration Act, supported by statutory presumptions, are sufficient.

In Govind Bhai Chhota Bhai Patel v. Patel Raman Bhai Mathur Bhai, the Court held that:
Where execution of a registered gift deed is not specifically denied, examination of an attesting witness is not mandatory.

8. Proof of a Will – A Special RuleA Will stands on a different footing:

• It must always be proved strictly in accordance with:
  • Section 63 of the Indian Succession Act, and
  • Section 67 of the BSA.

In M.B. Ramesh v. K.M. Veeraje, the Supreme Court reaffirmed that:

• At least one attesting witness must be examined to prove a Will, if available.
• Registration of a Will does not dispense with this requirement.

9. Relationship with Other Provisions

• Section 67: Mandatory rule for proof by attesting witness
• Section 68: Applies where no attesting witness can be found
• Section 69: Admission of execution by executant
• Section 70: Attesting witness denies or forgets execution

Section 70 acts as a safeguard, allowing proof by other evidence when attesting witnesses fail to support execution despite being examined.

10. Meaning of “Specifically Denied”The phrase “specifically denied” means:

• A clear and express denial of execution by the executant or the party against whom the document is relied upon.
• A vague or evasive denial is insufficient.

If execution is asserted and not challenged on material particulars, the Court may presume due execution.

11. Conclusion
Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 ensures the authenticity and reliability of legally attested documents by insisting on strict proof through attesting witnesses. At the same time, it introduces measured flexibility for registered documents and non-availability of witnesses, while maintaining special rigour for Wills. The provision thus balances procedural discipline with practical justice.