Other Rules on Proof of Documents — Signature, Attestation, Comparison (ss. 64–73) — BSA (Law of Evidence) Notes

Other Rules on Proof of Documents — Signature, Attestation, Comparison (ss. 64–73)

A man dies leaving a will. His son walks into court, produces the registered will, and says: “It is registered — that proves it.” He is wrong, and the mistake costs cases every year. Registration proves that a document was presented and copied; it does not prove that the testator signed it in sound mind. For a will, the law demands something registration cannot supply — the attesting witness. Sections 64 to 73 are the rules for proving who signed a document and how.

Once a document is admissible, a party must still prove that it is genuine — who signed or wrote it. These sections supply the methods, and the will problems turn on the attestation rule.

A. Proof of signature and handwriting — s. 65 (with ss. 40, 41, 72)

Section 65 states the basic rule: if a document is alleged to be signed or written (wholly or in part) by a person, that signature or handwriting must be proved to be in his hand. Handwriting may be proved in five ways — keep the list:

By the evidence of the writer himself (“yes, that is my signature”).
By the opinion of a handwriting expert who compares writings (s. 40).
By a person acquainted with the handwriting of the alleged writer (s. 41(1)) — someone who has seen him write, or regularly received documents from him.
By the court itself comparing the disputed writing with any writing proved to be genuine (s. 72).
By the court directing the person present to write words or figures, to enable comparison (s. 72).

Section 66 adds the modern parallel: where an electronic signature is alleged to be that of a subscriber, that fact must be proved (except for a secure electronic signature, which carries its own presumption).

B. Attested documents — the will rule (ss. 67–71)

Some documents are required by law to be attested — a will and a mortgage are the standard examples. For these there is a special, stricter mode of proof, and it is the examinable core of this topic.

Section 67 — call an attesting witness. A document required by law to be attested shall not be used in evidence until at least one attesting witness has been called to prove its execution, if such a witness is (i) alive, (ii) subject to the process of the court, and (iii) capable of giving evidence.
- The registration trap. There is a proviso: it is not necessary to call an attesting witness to prove the execution of a document (not being a will) that has been registered, unless its execution is specifically denied. Read the proviso carefully — it excludes wills. So a registered will still needs an attesting witness; registration does not dispense with it.
Section 68 — when no attesting witness is available. If no attesting witness can be found (all dead, untraceable, or incapable), it must be proved (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. This is the answer to the “both attesting witnesses are dead” problem — the will is not unprovable.
Section 69 — admission by the party. The admission of a party to an attested document that he executed it is sufficient proof of execution against him.
Section 70 — attesting witness denies execution. If the attesting witness denies or does not recollect the execution, the document may still be proved by other evidence (e.g. under ss. 68–69).
Section 71 — document not required by law to be attested. Such a document need not be proved by calling an attesting witness; it may be proved as if it were unattested (i.e. by ordinary proof of signature).

C. Comparison and digital-signature verification — ss. 72–73

Section 72 — to decide whether a signature, writing or seal is genuine, the court may compare it with a signature/writing/seal proved to be genuine, and may direct any person present to write for that purpose.
Section 73 — for verifying a digital signature, the court may direct the person, the Controller, or the Certifying Authority to produce the Digital Signature Certificate, and direct any person to apply the public key to verify it.

D. A quick orientation (the 6W)

What — how the signature/handwriting/attestation of a document is proved.
Why — an admissible document still proves nothing until shown to be genuinely executed.
Who — the writer, a person acquainted with the hand, an expert, an attesting witness, or the court itself.
When — an attesting witness is essential for a will/mortgage; s. 68 applies only when none is available.
How — call an attesting witness (s. 67); if none, prove the handwriting of attestor and executant (s. 68); registration does not replace this for a will.

🧩 WORKED EXAMPLE — the registered will and the dead witnesses

Facts. (1) A produces a registered will and argues that, being registered, it needs no attesting witness. (2) In a second case, B wants to prove a will but both attesting witnesses are dead.

Rule. A will (required by law to be attested) must be proved by at least one attesting witness (s. 67); the registration proviso expressly excludes wills. Where no attesting witness is available, s. 68 allows proof of the attestor’s and executant’s handwriting.

Apply. (1) Registration does not dispense with the attesting witness for a will, so A is wrong — he must call an attesting witness under s. 67. (2) B’s will is not lost: under s. 68, B proves that the attestation of one attesting witness is in that witness’s handwriting and that the testator’s signature is the testator’s.

Conclusion. (1) A must comply with s. 67. (2) B can prove the will under s. 68 despite both witnesses being dead.

Decoy. The trap in (1) is “registration proves the will”. The proviso to s. 67 carves wills out — registration is not enough.

Section 67, BSA 2023: “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… unless its execution by the person by whom it purports to have been executed is specifically denied.”

In Simple Terms: For documents the law says must be witnessed (wills, mortgages), you must bring an attesting witness to court (s. 67) — and registration does not excuse this for a will. If every attesting witness is dead or unavailable, you prove the will another way, by handwriting, under s. 68.

flowchart TD
    ROOT["Proving an attested document (will/mortgage)"]:::root
    ROOT --> Q1{"Is an attesting witness alive,<br/>available & capable?"}
    Q1 -->|"Yes"| A["s. 67 — CALL at least one attesting witness"]:::leaf
    Q1 -->|"No — all dead/untraceable"| B["s. 68 — prove attestor's handwriting<br/>+ executant's signature"]:::leaf
    ROOT --> Q2{"Is it a REGISTERED will?"}
    Q2 -->|"Registered but a WILL"| C["Attesting witness STILL required<br/>(proviso excludes wills)"]:::diamond
    Q2 -->|"Registered, not a will, execution not denied"| D["No attesting witness needed<br/>(proviso to s. 67)"]:::leaf
    ROOT --> E["Genuineness: s. 65 handwriting ·<br/>s. 72 court comparison · s. 73 digital signature"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

H. Venkatachala Iyengar vs B.N. Thimmajamma (1959) — a will must be proved by at least one attesting witness, and any suspicious circumstances surrounding it must be dispelled by the propounder.
Janki Narayan Bhoir vs Narayan Namdeo Kadam (2003) — s. 68 requires that at least one attesting witness be examined if alive and available; only if none is available does the fallback mode apply.
Ajay Kumar Parmar vs State of Rajasthan (2012) — the court’s power under s. 73 (now s. 72) to compare handwriting should be exercised with caution and is best supported by expert evidence.

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