Section 68 Evidence Act: Proof of Execution of Documents Required by Law to Be Attested
Section 68 of the Indian Evidence Act, 1872 sets out how a document that the law requires to be attested must be proved in court. Its corresponding provision under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is Section 67.
Text of Section 68, Indian Evidence Act, 1872
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 Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
Section 67 of the Bharatiya Sakshya Adhiniyam, 2023
Section 67 - Proof of execution of document required by law to be attested. Where the law requires attestation, the document ordinarily cannot be used as evidence until at least one attesting witness is called to prove execution, if such a witness is alive, can be summoned by the court and is capable of giving evidence.
The proviso continues the distinction between wills and other registered documents: an attesting witness ordinarily need not be called to prove a duly registered non-will document unless its execution is specifically denied. The proviso does not exempt a will from the ordinary requirement to prove attestation.
Read the official legislation through Bharatiya Sakshya Adhiniyam, 2023 (India Code, Act 47 of 2023) and the India Code legislative database.
What do execution and attestation mean?
Execution of a document
Execution generally concerns the act of signing or otherwise validly executing a document with the intention to give it legal effect. A signature appearing on a document is not, by itself, conclusive proof that the document was duly executed.
Attestation
Attestation involves a witness observing the execution or receiving a personal acknowledgement of it, and signing as a witness with the required intention to attest. The precise statutory requirements depend on the kind of instrument. For wills, Section 63(c) of the Indian Succession Act, 1925 generally requires attestation by two or more witnesses for an unprivileged will.
Attesting witness
An attesting witness is a person who signs a document as a witness to its execution in accordance with the applicable law. Merely identifying a signature, drafting the instrument or registering it does not automatically establish due attestation.
When must an attesting witness be examined?
| Document or situation | General evidentiary rule |
|---|---|
| Will required to be attested | At least one available and competent attesting witness must ordinarily be called to prove execution and due attestation. Registration does not remove this requirement. |
| Registered non-will document required by law to be attested | Calling an attesting witness is ordinarily unnecessary unless execution is specifically denied by the purported executant. |
| Unregistered document required by law to be attested | At least one available, summonable and competent attesting witness must ordinarily be called. |
| No attesting witness can be found | The separate rule under historical Section 69 / BSA Section 68 may permit proof through prescribed alternative evidence. |
| Attesting witness denies or does not recollect execution | Historical Section 71 / corresponding BSA Section 70 permits proof by other evidence in the circumstances specified there. |
These are general evidence rules. Whether a particular instrument requires attestation is determined by the law governing that instrument, not by Section 68 alone.
Proof of a will in court
A will is a key example of a document that ordinarily must be attested by law. The person relying on it generally must establish that the testator executed the will and that the statutory attestation requirements were met. Examining one attesting witness may suffice where that witness proves the necessary facts, including attestation by the required witnesses; simply producing the will or its registration is not necessarily sufficient.
Courts may also examine suspicious circumstances surrounding a will, such as doubts about the testator's understanding, signature, or participation of beneficiaries. The evidentiary burden depends on the facts and applicable legal principles.
Exception for registered documents other than wills
The proviso applies only when the document is not a will and is registered under the Registration Act, 1908. In that case, examination of an attesting witness is ordinarily dispensed with unless execution is specifically denied by the person said to have executed the document.
A general challenge to the transaction or its legal effect is not always the same as a specific denial of execution. The pleadings and evidence must be assessed carefully. Registration also does not cure every possible defect in a document or establish the truth of every statement it contains.
Frequently asked questions
Is it compulsory to call two attesting witnesses to prove a will?
Not necessarily. Although an unprivileged will generally requires two attesting witnesses, the evidence law ordinarily requires at least one available attesting witness to be examined, provided the testimony establishes due execution and the required attestation.
Does registration alone prove a will?
No. The statutory exception for registered documents expressly excludes wills. A registered will must still be proved under the applicable evidence and succession laws.
What if the only attesting witness is dead or cannot be found?
Alternative modes of proof may be available under historical Section 69 / BSA Section 68, subject to the prescribed requirements and the facts of the case.
Which law applies after 1 July 2024?
The BSA generally governs proceedings to which it applies from its commencement. Section 170 contains a savings rule for specified applications, trials, inquiries, investigations, proceedings and appeals pending immediately before commencement.
Official statutory references
Bharatiya Sakshya Adhiniyam, 2023 - official Act PDF | India Code - official legislation portal.