Section 68 of the Indian Evidence Act, 1872 speaks about, “Proof of execution of document required by law to be attested”. This section states that if it is required by law that a document is to be attested, then that attested document shall not be proved in the court without the presence of at least one of the attesting witness.
It provides that when the document is not a will then attesting witnesses are not required when the document is registered according to the provisions of the Indian Registration Act, 1908 unless it is specifically denied by the person by whom it purports to have been executed.
Section 68 deals with the proof of execution of the documents required by law to be attested and in that case one of the attesting witnesses is needed to be produced in the court. Execution means “the party by affixing his signature or mark has signified his assent to the contents of the document”. It consists in “signing a document written out, read over and understood.” To execute means to go through the formalities necessary for the validity of legal act. The term “attested” has not been defined in the Evidence Act. Section 3 of the Transfer of Property Act has defined the term as “a person has signed the document by way of testimony to the fact that he saw it attested.
In the case of wills, it is required by law that two attesting witness needs to be present.
All these are needed to be proved by the party who relies on the document in the court of law. All the procedure has to be observed when the validity or existence of the documents has been denied but the denial must be done by the person who has a right over the document. For example: - the denial of a will by the son of the second wife who has no rights of succession over it is not effective.
For the purpose of this section, it is not required that the attesting witness will have to know the contents of the will but it is mandatory the testator should have put his signature of thumb impression in the presence of the witness.
On 23rd September 2019, the Supreme Court held that, when the execution of the gift deed was not specifically denied in the suit filed, it is not necessary for the Donee to examine one of the attesting witnesses in terms of proviso to Section 68 of the Indian Evidence Act, 1872.
The High Court dismissed the suit filed by the plaintiffs against the defendant on the ground that they had not denied the execution of the document but only alleged forgery and fabrication. It was further held that the subject property of the gift deed was not ancestral property, but a self acquired through the will executed in favour of the donor by his father.
The bench comprising Justice L. Nageswara Rao and Justice Hemant Gupta observed:
“We think that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution. What has to be specifically denied is the execution of the document”.
The court noted that, in this case, the plaintiffs came out with the plea of forgery and fabrication of the gift deed which is based on different allegations and proof than the proof of document attested. While upholding the High Court judgment, the bench said:
“The facts of the present case are akin to the facts which were before the Kerala High Court in Kannan Nambiar. The appellants have not denied the execution of the document but alleged forgery and fabrication. In the absence of any evidence of any forgery or fabrication and in the absence of specific denial of the execution of the gift deed in the manner held in Kannan Nambiar, the Donee was under no obligation to examine one of the attesting witnesses of the gift deed. As per evidence on record, the Donee was taking care of the Donor for many years. The appellants were residing in the United States but failed to take care of their parents. Therefore, the father of the appellants has executed gift deed in favour of a person who stood by him. In the absence of any intention in the Will, beneficiary would acquire the property as self-acquired property”.
Section 69 of the Indian Evidence Act, 1872 speaks about, “Proof where no attesting witness found”. This section says that if none of the witnesses is available or if the document was executed in the United Kingdom, it must be proved that the executor’s and one of the attesting witnesses’ sign is in their own handwriting.
On 17th July 2020, the Hon’ble Supreme Court held that, in a situation where both the attesting witnesses to a will are dead, it is sufficient to prove that the attestation of at least one attesting witness is in his handwriting.
In this case, at the relevant time, both attesting witnesses to the will in question were not alive. The will was sought to be proved by producing the copy of deposition given by one of the attesting witnesses to the Will in a proceedings under Section 145 of the CrPC. However, the High Court held that this deposition of one of the attesting witnesses to the Will did not establish due execution of the Will, in that, it did not establish the attestation of the Will by the other alleged attesting witness.
So the issue in the appeal before the Apex court was whether is it still the requirement of law when both the attesting witnesses are dead that: under Section 69 of the Evidence Act, the attestation as required under Section 63 of the Indian Succession Act, viz., attestation by the two witnesses has to be proved? or Is it sufficient to prove that the attestation of at least one attesting witness is in his handwriting, which is the literal command of Section 69 of the Evidence Act apart from proving the latter limb?
Answering this issue, the court noted that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. The relevant observations made in this regard, by the bench comprising of Justices Sanjay Kishan Kaul and KM Joseph, is quoted below
“In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.”
The court further observed that in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting.
“Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act”.
Section 70 of the Indian Evidence Act, 1872 speaks about, “Admission of execution by party to attested document”. This section says that ‘where the party to an attested document has admitted that he executed the document that is sufficient proof of the execution even if the document is required by law to be attested’. This ‘admission’ relates only to the execution and to be made in the course of the trial of a suit or proceeding. It must be distinguished from the admission mentioned in Section 22 and 65 (b), which relate to die contents of a document. The admission must be unqualified. Thus, if a person admits his signature on a mortgage-bond, but denies that the attesting witnesses were present at that time, the bond will have to be proved under Section 68, by calling the attesting witnesses.
Section 71 of the Indian Evidence Act, 1872 speaks about, “Proof when attesting witness denies the execution”. Normally Section 68 has to be followed but in case it is not possible to follow Section 68 then Section 71 has to be followed. This section says that when the attesting witness denies or forgets the execution of the document it may be proved by other evidence.
Therefore, if the witness that was examined was not able to prove its contents and the other attesting witness though available was not called then the will was held to be not proved. The prove has to be done in accordance to Section 68 of the evidence act, Section 71 will come into play only when it cannot be proved in any by through section 68.
For example: - If one of the witnesses turned hostile and the other witness though available was not called for then the help of Section 71 cannot be taken.
Section 72 of the Indian Evidence Act, 1872 speaks about, “Proof of document not required by law to be attested”. This section says “An attested document, not required by law to be attested, may be proved as if it was unattested.” To prove an attested document, one must prove (i) attestation, and (ii) signature. To prove an unattested document, one has to prove execution only.
Section 73 of the Indian Evidence Act, 1872 speaks about, “Comparison of signature, writing or seal with others admitted or proved”. This section simply says that any signature, writing or seal that has to be proved may be compared with any other signature, writing or seal that has been proved to the satisfaction of the court to have been written by the concerned person. It also says that the court can ask any person to write any words or figures for the prose of comparing it with the concerned document.
Section 73 does not make any difference between civil and criminal proceedings. It is not limited to parties to the litigation. By virtue of the expression “any person” used in Section 73, die court can direct even a stranger to give a specimen of his handwriting. It may be noted that where the case is still under investigation and no proceedings are pending before the court, a person present in the court cannot be compelled to give his specimen handwriting.
In the absence of any admitted signatures, the court cannot in itself compare a disputed signature without the assistance of an expert.
It was held by the Supreme Court that when a person claims that he is acquainted with the handwriting of the accused author but he was not able to produce the document in the court by which he claims to be familiar with the accused’s handwriting then the court held that in that case the accused cannot be convicted.
In this case, the plaintiff produced a thirty years old registered document. The court held that the since there was no sign of discrepancy in the signature on the document and the defendant produced no evidence to show that the signature on the document was not genuine then the benefit of Section 90 will be given to the plaintiff.