Section 71 BSA: Proof of Document Not Required by Law to Be Attested

Section 71 BSA explains how an attested document can be proved when the law does not require attestation.

Introduction

Section 71 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the proof of documents that are not required by law to be attested. It provides that a document may be proved as if it were unattested even when witnesses have actually attested it, provided the law does not require attestation for that type of document.

The provision is important in civil disputes involving sale agreements, receipts, sale deeds and other documents that may contain witness signatures but are not legally required to be attested. It clarifies that the mere presence of attesting witnesses does not impose the special evidentiary requirement applicable to documents that must legally be attested.

Section 71 BSA corresponds to Section 72 of the Indian Evidence Act, 1872. The provision has been carried forward without substantive change.

Bare Act: Section 71 of the Bharatiya Sakshya Adhiniyam, 2023

71. Proof of document not required by law to be attested.—

An attested document not required by law to be attested may be proved as if it was unattested.

Meaning of Section 71 BSA

Section 71 establishes a straightforward rule: if the law does not require a document to be attested, the document can be proved without following the special procedure applicable to legally attested documents.

For documents that must legally be attested, Section 67 BSA ordinarily requires at least one available and capable attesting witness to be called to prove execution, subject to its statutory exception. Section 71 removes this special requirement where attestation is not legally mandatory.

For example, A files a suit to enforce an agreement for sale signed by B. Two witnesses also signed the agreement, but no law required the agreement to be attested. A may prove the agreement under the ordinary rules of documentary evidence without being required to examine an attesting witness merely because the witnesses signed it.

However, Section 71 does not automatically prove the document’s authenticity, execution, contents or legal effect. The party relying on the document must still satisfy the applicable rules of evidence.

Essential Elements of Section 71 BSA

1. There must be an attested document

The section applies to a document that has actually been attested by one or more witnesses. It addresses the evidentiary effect of that attestation when the law did not require it.

2. Attestation must not be legally mandatory

The decisive question is whether the applicable law requires the particular document to be attested.

For instance, an ordinary agreement for sale is generally not required by law to be attested. By contrast, a gift of immovable property generally requires attestation under Section 123 of the Transfer of Property Act, 1882.

The legal requirements must therefore be examined according to the nature of the document and the governing statute.

3. The document may be proved as if it were unattested

When Section 71 applies, the party relying on the document does not have to examine an attesting witness merely to satisfy the special requirement for proving legally attested documents.

The document must still be proved in accordance with the ordinary evidentiary rules applicable to its contents, signature, execution and admissibility.

4. Other legal requirements remain applicable

Section 71 does not override requirements relating to registration, stamping, admissibility, proof of signature or other statutory formalities.

For example, a document may not require attestation but may still need to satisfy applicable registration or stamp-duty requirements. The section deals specifically with the mode of proof arising from attestation.

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

Examples of Section 71 BSA

Example 1: Agreement for sale

A and B enter into an agreement for sale. Two witnesses sign the agreement, although the law does not require this agreement to be attested.

When A produces the agreement in court, A does not have to call an attesting witness merely because the witnesses signed it. A must still prove the agreement in accordance with the ordinary rules of evidence.

Example 2: Receipt signed by witnesses

A issues a receipt acknowledging payment received from B. Two people sign as witnesses, but the law does not require the receipt to be attested.

If the receipt is disputed, it may be proved as an unattested document under Section 71. The party relying on it must still establish its authenticity and satisfy the applicable evidentiary requirements.

Example 3: Sale deed

A produces a sale deed in a property dispute. The deed contains signatures of witnesses, but the applicable law does not require attestation of that sale deed.

Section 71 means that the party need not examine an attesting witness solely because the deed contains witness signatures. The deed must still be proved in accordance with the applicable rules, including any relevant requirements under property and registration law.

Example 4: Document for which attestation is mandatory

A relies on a gift deed concerning immovable property. The applicable law requires the deed to be attested.

Section 71 cannot be invoked to avoid the special proof requirements merely because the deed could otherwise be proved as a document. The party must comply with the applicable rules for a document legally required to be attested.

Important Case Laws on Section 71 BSA

Section 71 BSA corresponds to Section 72 of the Indian Evidence Act, 1872. The following decisions interpret the predecessor provision and explain the distinction between documents that must be attested and those that do not require attestation.

1. Karuppiah Mooppanar v. Muthukaruppan Servai (1974)

Court: Madras High Court.

Decision date: 19 July 1974.

Legal issue: The dispute concerned the proof of a sale deed that had been attested by witnesses, although the law did not require the sale deed to be attested.

Principle: The court explained that a sale deed is not a document required by law to be attested merely because witnesses have signed it. Under Section 72 of the Indian Evidence Act, 1872, the document could be proved as if it were unattested. Examination of an attesting witness was therefore not the exclusive method of proving its execution.

Relevance to Section 71 BSA: This decision illustrates the central principle of the current provision: voluntary attestation does not create a mandatory attesting-witness requirement where the law does not require attestation.

2. Sewa Singh v. Balwinder Kaur (2022)

Court: Punjab and Haryana High Court.

Decision date: 8 July 2022.

Case reference: Regular Second Appeal No. 2334 of 2018.

Legal issue: The case concerned proof of a sale deed and whether the special requirement for examining an attesting witness under Section 68 of the Indian Evidence Act, 1872 applied.

Also Read: Section 56 BSA: Proof of Contents of Documents

Principle: The court explained that the sale deed in question was not a document required by law to be attested. Consequently, the special procedure under Section 68 did not apply; Section 72 permitted the document to be proved as if it were unattested.

Relevance to Section 71 BSA: The judgment clarifies that the legal requirement for attestation, rather than the mere presence of witness signatures, determines whether the special attesting-witness procedure applies.

3. Ashokan v. K.K.D. Pandian (2024)

Court: Madras High Court.

Decision date: 23 October 2024.

Case reference: A.S. (MD) No. 116 of 2022 and Cross Objection No. 31 of 2024.

Legal issue: The case concerned proof of an agreement for sale and whether the agreement had to be proved through an attesting witness.

Principle: The court held that the agreement for sale in question was not a document required by law to be attested. Accordingly, the special procedure under Section 68 of the Indian Evidence Act, 1872 was not applicable, and the agreement could be proved as if it were unattested under Section 72.

Relevance to Section 71 BSA: This decision is particularly useful for understanding the distinction between documents that happen to be witnessed and documents for which attestation is legally compulsory. Although decided after the BSA came into force, the judgment applied the predecessor Evidence Act provisions to the dispute before it.

Difference Between Section 67 and Section 71 BSA

Basis	Section 67 BSA	Section 71 BSA
Subject	Proof of execution of a document required by law to be attested	Proof of a document not required by law to be attested
Attestation requirement	Attestation is legally mandatory	Attestation is not legally mandatory
General rule	An available and capable attesting witness must ordinarily be called to prove execution, subject to the statutory exception	The document may be proved as if it were unattested
Effect of witness signatures	Special proof rules apply because the law requires attestation	Voluntary attestation does not create the special proof requirement
Example	A will requiring attestation under succession law	An agreement for sale that is not legally required to be attested

The distinction depends on the governing law, not simply on whether witness signatures appear on the document.

Difference Between Section 71 BSA and Section 72 of the Indian Evidence Act, 1872

Basis	Section 71 BSA	Section 72 Indian Evidence Act
Subject	Proof of a document not required by law to be attested	Same subject
Main rule	An attested document may be proved as if unattested when attestation is not legally required	Substantially the same rule
Substantive change	No substantive change to the rule	Predecessor provision
Current status	In force from 1 July 2024	Repealed from 1 July 2024, subject to applicable savings and transitional provisions

Earlier judgments interpreting Section 72 of the Indian Evidence Act remain relevant to the extent that their reasoning applies to the corresponding provision of the BSA.

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 68: Proof where no attesting witness can be found.
• Section 69: Admission of execution by a party to an attested document.
• Section 70: Proof when an attesting witness denies execution.
• Section 72: Comparison of signature, writing or seal with others admitted or proved.

These provisions address different methods of proving documents. Section 71 is particularly important because it prevents the special procedure for legally attested documents from being applied merely because a document happens to contain witness signatures.

Important Points for Law Students and Judiciary Aspirants

• Section 71 BSA corresponds to Section 72 of the Indian Evidence Act, 1872.
• An attested document that is not legally required to be attested may be proved as if it were unattested.
• The legal requirement for attestation is more important than the mere presence of attesting witnesses.
• An agreement for sale is generally not required by law to be attested.
• A sale deed is generally not required by law to be attested, although other property and registration requirements may apply.
• Certain documents, including an unprivileged will and a gift deed of immovable property, are subject to statutory attestation requirements.
• Section 71 does not automatically prove the document’s authenticity, execution, contents or enforceability.
• Karuppiah Mooppanar v. Muthukaruppan Servai explains why a sale deed that is not legally required to be attested can be proved without examining an attesting witness.
• Sewa Singh v. Balwinder Kaur and Ashokan v. K.K.D. Pandian explain the application of the same principle to sale deeds and agreements for sale.

Frequently Asked Questions (FAQs)

1. What is Section 71 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 71 provides that an attested document that is not required by law to be attested may be proved as if it were unattested.

2. Which section of the Indian Evidence Act corresponds to Section 71 BSA?

Section 71 BSA corresponds to Section 72 of the Indian Evidence Act, 1872.

3. Is an attesting witness compulsory for every document signed by witnesses?

No. If the law does not require the document to be attested, Section 71 permits it to be proved as if it were unattested. The document must still satisfy the ordinary rules of evidence.

4. Can an agreement for sale be proved without examining an attesting witness?

Generally, yes, if the agreement is not required by law to be attested. The party relying on it must still prove it under the ordinary rules of documentary evidence.

5. Does Section 71 apply to wills?

Not where the will is legally required to be attested. An unprivileged will must ordinarily comply with the execution and attestation requirements under Section 63 of the Indian Succession Act, 1925. Section 71 BSA cannot be used to avoid those requirements.

6. Does Section 71 mean that a document is automatically admissible?

No. The section addresses the special requirement arising from attestation. Other rules concerning authenticity, proof of signature, contents, registration, stamp duty and admissibility may still apply.

7. What is the difference between Sections 67 and 71 BSA?

Section 67 governs proof of execution where the law requires attestation. Section 71 applies where attestation is not legally required and permits the document to be proved as if it were unattested.

Conclusion

Section 71 of the Bharatiya Sakshya Adhiniyam, 2023 clarifies that a document does not become subject to special attesting-witness requirements merely because witnesses have signed it. Where the law does not require attestation, the document may be proved as if it were unattested, subject to the ordinary rules of evidence and any other applicable legal requirements. For examinations and practical legal work, the key is to identify whether attestation is legally mandatory before deciding how the document must be proved.

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