Section 68 BSA: Proof Where No Attesting Witness Is Found

Section 68 BSA explains how to prove an attested document when no attesting witness can be found.

Introduction

Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with proof of a document where no attesting witness can be found. It provides an alternative method of proving a document that the law requires to be attested when the ordinary method of examining an attesting witness is unavailable.

Under this provision, it must be proved that the attestation of at least one attesting witness is in that witness’s handwriting and that the signature of the person who executed the document is in that person’s handwriting.

This section is particularly important in disputes involving wills, property documents and other legally attested instruments where the attesting witnesses have died, cannot be traced or are otherwise unavailable.

Section 68 BSA corresponds to Section 69 of the Indian Evidence Act, 1872. However, the BSA omits the former provision’s separate reference to documents purporting to have been executed in the United Kingdom.

Bare Act: Section 68 of the Bharatiya Sakshya Adhiniyam, 2023

68. Proof where no attesting witness found.—

If no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

Meaning of Section 68 BSA

Section 68 provides an alternative method of proving the execution of a document that is legally required to be attested when no attesting witness can be found.

Ordinarily, Section 67 BSA requires at least one attesting witness to be called to prove the execution of such a document, provided an attesting witness is alive, capable of giving evidence and subject to the process of the court.

When no attesting witness can be found, Section 68 permits proof through handwriting evidence. However, the party relying on the document must establish two things:

1. The attestation of at least one attesting witness is in that witness’s handwriting.
2. The signature of the person who executed the document is in that person’s handwriting.

The party must also establish that no attesting witness can be found. Section 68 is not a freely available alternative to Section 67; its application depends on satisfying this preliminary requirement.

Example: A relies on a will allegedly executed by B. Both attesting witnesses have died. A seeks to prove the will through evidence establishing the handwriting of at least one attesting witness and B’s signature. If A also establishes that no attesting witness can be found and satisfies the other applicable legal requirements, Section 68 may provide the alternative method of proof.

Essential Requirements of Section 68 BSA

1. The document must be one required by law to be attested

Section 68 operates in the context of documents for which attestation is legally mandatory. It is not a general rule for every document containing witness signatures.

For example, Section 63 of the Indian Succession Act, 1925 prescribes execution and attestation requirements for an unprivileged will.

The legal requirements depend on the type of document and the statute governing it.

2. No attesting witness can be found

The party relying on Section 68 must establish the unavailability of the attesting witness or witnesses.

Situations may include:

• The attesting witnesses have died.
• The witnesses cannot be traced despite diligent efforts.
• The witnesses are beyond the court’s reach or jurisdiction.
• The witnesses cannot be produced despite appropriate efforts to secure their attendance.

The precise circumstances must be established through evidence. A bare assertion that a witness is unavailable does not necessarily satisfy the statutory requirement.

Also Read: Section 70 BSA: Proof When Attesting Witness Denies Execution

3. The handwriting of at least one attesting witness must be proved

The party must prove that the attestation of at least one witness is in that witness’s handwriting.

This may be established through legally admissible handwriting evidence, including evidence from a person familiar with the handwriting, expert opinion or comparison with admitted or proved handwriting, as appropriate.

4. The executant’s signature must also be proved

The signature of the person who executed the document must be proved to be in that person’s handwriting.

Proof of the attesting witness’s handwriting alone is insufficient. Section 68 expressly requires proof of both the attestation of at least one witness and the executant’s signature.

5. Other requirements for proving the document must still be satisfied

Compliance with Section 68 does not automatically establish every aspect of a document’s validity or enforceability.

For example, when a will is involved, the court may also need to consider whether the applicable execution and attestation requirements have been met and whether suspicious circumstances surrounding the will have been satisfactorily explained.

How Is a Document Proved When No Attesting Witness Is Available?

The following sequence helps explain the application of Section 68 BSA.

<list marker=”number” gap={2}> <list-item>**Identify the document and its legal requirements.** Determine whether the law requires the document to be attested.</list-item> <list-item>**Establish the unavailability of attesting witnesses.** Produce appropriate evidence showing why no attesting witness can be found.</list-item> <list-item>**Prove one attesting witness’s handwriting.** Establish that the attestation of at least one witness is in that person’s handwriting.</list-item> <list-item>**Prove the executant’s signature.** Establish that the signature belongs to the person who executed the document.</list-item> <list-item>**Satisfy the remaining legal requirements.** Apply the relevant provisions governing the document, including special requirements for wills where applicable.</list-item> </list>

This sequence is particularly useful in will disputes, where the court must distinguish between establishing the unavailability of attesting witnesses and proving the document through the alternative method.

Important Case Laws on Section 68 BSA

Section 68 BSA substantially carries forward Section 69 of the Indian Evidence Act, 1872. The following judgments explain the corresponding legal principles. The older decisions interpreted the predecessor law, while the 2026 Supreme Court decision discussed below is especially relevant to the current legal position.

1. Babu Singh v. Ram Sahai @ Ram Singh (2008)

Citation: (2008) 14 SCC 754.

Court: Supreme Court of India.

Legal issue: The case concerned the proof of a will when an attesting witness was unavailable and the requirements for invoking Section 69 of the Indian Evidence Act, 1872.

Principle: The Supreme Court explained that the alternative method under Section 69 may apply where an attesting witness is dead, outside the court’s jurisdiction, kept away by the opposing party or cannot be traced despite diligent efforts. The required handwriting evidence must then be established.

The Court also emphasised that a party cannot simply bypass the ordinary method of proof. Where an attesting witness can potentially be produced, appropriate efforts to secure that witness’s attendance must be considered.

Relevance to Section 68 BSA: The judgment explains why the unavailability of attesting witnesses is a condition precedent to using the alternative method of proof. It also highlights the need to establish both the handwriting of an attesting witness and the executant’s signature.

2. Ashutosh Samanta (Dead) Through Legal Representatives v. Sm. Ranjan Bala Dasi (2023)

Citation: 2023 SCC OnLine SC 255.

Court: Supreme Court of India.

Legal issue: The case concerned the proof of a will and the application of the rules governing attested documents where the ordinary method of examining attesting witnesses is unavailable.

Also Read: Section 67 BSA: Proof of Execution of Document Required by Law to Be Attested

Principle: The decision reiterated that the predecessor Section 69 provides an alternative means of proving a document when the required conditions for invoking that provision are satisfied.

Relevance to Section 68 BSA: The judgment helps explain the operation of the corresponding provision and the distinction between ordinary proof through an attesting witness and alternative proof when no such witness can be found.

3. Pazhanathal (Dead) Through Legal Representatives v. Alamathal (Dead) Through Legal Representatives (2026)

Citation: 2026 INSC 860; Civil Appeal Nos. 10169–10170 of 2013, decided on 13 August 2026.

Court: Supreme Court of India.

Legal issue: The case concerned whether a will had been duly proved when the attesting witnesses were not examined and the party relying on the will sought to invoke Section 69 of the Indian Evidence Act, 1872.

Principle: The Supreme Court treated the words “if no such attesting witness can be found” as a condition precedent to using the alternative method of proof. The party relying on the will had to establish why the ordinary method of proof could not be followed. Proof of the handwriting of an attesting witness and the executant’s mark could not retrospectively establish the required unavailability of the witnesses.

The Court emphasised that the alternative method cannot be invoked merely because the party has evidence relevant to the two handwriting requirements. The foundational condition must first be established.

Relevance to Section 68 BSA: This recent Supreme Court judgment is particularly important for understanding the relationship between Sections 67 and 68 BSA. It demonstrates that a party must first establish that no attesting witness can be found before relying on the alternative method. The decision interpreted the predecessor Evidence Act, not Section 68 BSA directly, but its reasoning is relevant to the substantially corresponding provision.

Difference Between Section 67 and Section 68 BSA

Basis	Section 67 BSA	Section 68 BSA
Subject	Proof of execution of a document required by law to be attested	Proof where no attesting witness can be found
General approach	Calls for at least one available and capable attesting witness to prove execution	Provides an alternative method when no attesting witness can be found
Main evidentiary requirement	Evidence from an attesting witness	Handwriting of at least one attesting witness and the executant’s signature
Availability of witness	At least one qualifying witness is available	No attesting witness can be found
Example	An available witness proves the execution of a will	Handwriting evidence is used after the unavailability of attesting witnesses is established

The provisions must be read together. Section 68 is not simply an alternative that a party may choose whenever it appears more convenient than calling an attesting witness.

Difference Between Section 68 BSA and Section 69 of the Indian Evidence Act, 1872

Basis	Section 68 BSA	Section 69 Indian Evidence Act
Subject	Proof where no attesting witness is found	Same principal subject
Handwriting requirement	Handwriting of at least one attesting witness and the executant’s signature must be proved	Substantially the same requirement
Reference to execution in the United Kingdom	Omitted	Expressly included
Current statutory framework	In force from 1 July 2024	Repealed from 1 July 2024, subject to applicable savings and transitional provisions

The omission of the reference to documents purporting to have been executed in the United Kingdom is a textual difference between the provisions. The current section should be applied according to its own wording.

Related Provisions of the Bharatiya Sakshya Adhiniyam, 2023

• Section 65: Proof of signature and handwriting of a person alleged to have signed or written a document.
• Section 67: Proof of execution of a document required by law to be attested.
• Section 69: Admission of execution by a party to an attested document.
• Section 70: Proof when an attesting witness denies execution.
• Section 71: Proof of a document not required by law to be attested.
• Section 72: Comparison of signature, writing or seal with others admitted or proved.

These provisions address different evidentiary situations and should not be treated as interchangeable. In particular, Sections 67 and 68 distinguish ordinary proof through an attesting witness from the alternative method available when no such witness can be found.

Important Points for Law Students and Judiciary Aspirants

• Section 68 BSA corresponds to Section 69 of the Indian Evidence Act, 1872.
• It applies to documents that the law requires to be attested.
• The unavailability of an attesting witness must be established before the alternative method can be used.
• The handwriting of at least one attesting witness must be proved.
• The executant’s signature must also be proved to be in that person’s handwriting.
• Proof of only one of these two requirements is insufficient.
• Section 68 BSA omits the former Evidence Act’s separate reference to documents purporting to have been executed in the United Kingdom.
• Babu Singh v. Ram Sahai explains the conditions for invoking the predecessor provision.
• Pazhanathal v. Alamathal (2026) emphasises that the unavailability of attesting witnesses is a condition precedent and cannot be assumed merely because handwriting evidence is available.

Frequently Asked Questions (FAQs)

1. What is Section 68 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 68 provides the method of proving a legally attested document when no attesting witness can be found. It requires proof of the handwriting of at least one attesting witness and the signature of the person who executed the document.

2. Which section of the Indian Evidence Act corresponds to Section 68 BSA?

Section 68 BSA corresponds to Section 69 of the Indian Evidence Act, 1872.

3. What must be proved under Section 68 BSA?

Two handwriting requirements must be satisfied: the attestation of at least one witness must be proved to be in that witness’s handwriting, and the executant’s signature must be proved to be in that person’s handwriting.

4. Can Section 68 BSA be used if an attesting witness is available?

The provision is intended for situations in which no attesting witness can be found. If a qualifying attesting witness can be produced, the ordinary rule under Section 67 must be considered instead.

5. Is proof of the executant’s signature alone sufficient?

No. Section 68 expressly requires proof of both the handwriting of at least one attesting witness and the executant’s signature.

6. Does Section 68 BSA apply to wills?

Yes. It may provide an alternative method of proving a will when no attesting witness can be found, provided the statutory requirements are satisfied. The party relying on the will must also comply with the applicable succession law and establish any other requirements for proving the will.

7. What did the Supreme Court hold in Pazhanathal v. Alamathal (2026)?

The Supreme Court emphasised that the party relying on the predecessor Section 69 must first establish that no attesting witness can be found. Evidence proving the handwriting of an attesting witness and the executant’s mark cannot replace proof of that foundational condition.

Conclusion

Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 provides an alternative method for proving a document required by law to be attested when no attesting witness can be found. The party relying on the document must first establish the unavailability of the witnesses and then prove the handwriting of at least one attesting witness and the executant’s signature. For examinations and practical legal work, the key distinction is between the ordinary method under Section 67 and the exceptional method under Section 68.

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