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

Section 67 BSA explains when an attesting witness must prove the execution of a document in court.

Introduction

Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the proof of execution of documents that are required by law to be attested. It provides that, where a document must legally be attested, at least one attesting witness must ordinarily be called to prove its execution, provided an attesting witness is alive, capable of giving evidence and subject to the process of the court.

The provision is particularly important in disputes involving wills, certain mortgage deeds and other documents for which the law prescribes attestation. It also contains an important exception for registered documents other than wills, where execution has not been specifically denied.

Section 67 BSA corresponds to Section 68 of the Indian Evidence Act, 1872. The provision has been carried forward substantially unchanged.

Bare Act: Section 67 of the Bharatiya Sakshya Adhiniyam, 2023

67. Proof of execution of document required by law to be attested.—

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.

Meaning of Section 67 BSA

Section 67 establishes a special rule for proving documents that the law requires to be attested. Merely producing such a document in court is not ordinarily sufficient. The party relying on it must call at least one attesting witness to prove its execution, subject to the conditions and exception stated in the section.

An attesting witness is a person who witnesses the execution of a document and signs it as a witness in accordance with the applicable legal requirements. Simply signing a document as a witness does not necessarily establish that the person has fulfilled every requirement of legal attestation.

For example, A relies on a will allegedly executed by B. If the will is disputed, A ordinarily must prove its execution through an attesting witness in accordance with Section 67 BSA and the applicable provisions of the Indian Succession Act, 1925.

The section also creates a limited exception for a registered document, other than a will, when its execution is not specifically denied. In that situation, calling an attesting witness is not necessary merely to prove execution under this section.

Important: Section 67 concerns proof of execution. It does not automatically establish that a document is genuine, legally valid or enforceable in every respect. Other statutory requirements may also apply.

Essential Elements of Section 67 BSA

1. The document must be legally required to be attested

The rule applies when the law requires attestation, not merely because a document happens to contain witness signatures.

For example, Section 63 of the Indian Succession Act, 1925 prescribes execution and attestation requirements for an unprivileged will. Certain transactions under the Transfer of Property Act, 1882 may also require attestation.

Whether attestation is legally mandatory depends on the statute governing the particular document.

2. At least one attesting witness must ordinarily be called

The general rule requires at least one attesting witness to be called for the purpose of proving execution.

The witness should be able to give evidence relevant to the execution of the document. Merely calling a witness who cannot establish the required facts may not satisfy the statutory requirement.

3. The witness must be available under the conditions stated in the section

The obligation to call an attesting witness operates where such a witness is:

• Alive;
• Subject to the process of the court; and
• Capable of giving evidence.

Where no attesting witness can be found, or a witness denies or cannot recall execution, other provisions of the BSA may become relevant.

4. A limited exception applies to certain registered documents

The proviso removes the requirement to call an attesting witness for a registered document that is not a will, unless the execution of the document by the person who purportedly executed it is specifically denied.

Registration alone does not bring a will within this exception.

What Is an Attesting Witness?

An attesting witness is a person who witnesses the execution of a document and signs it to attest that execution in accordance with the applicable law.

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

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

For instance, Section 63(c) of the Indian Succession Act, 1925 requires an unprivileged will to be attested by two or more witnesses, subject to the statutory conditions. Section 67 BSA, however, generally requires at least one attesting witness to be called to prove execution where the witness is available.

This distinction is important: the number of witnesses required to execute or attest a document is not necessarily the same as the minimum number required to be called to prove its execution in court.

Exception for Registered Documents: Proviso to Section 67 BSA

The proviso provides an exception to the general rule.

A party need not call an attesting witness to prove the execution of a document where all the following conditions are satisfied:

1. The document is not a will.
2. The document has been registered in accordance with the Indian Registration Act, 1908.
3. Its execution by the person who purportedly executed it has not been specifically denied.

If execution is specifically denied, the exception does not apply, and the applicable requirements for proving execution must be considered.

Example 1: Registered mortgage deed

A produces a registered mortgage deed in a civil suit. The opposing party does not specifically deny executing it.

If the other conditions of the proviso are satisfied, A need not call an attesting witness merely to prove execution under Section 67 BSA.

Example 2: Registered sale deed with execution disputed

A relies on a registered sale deed, but B specifically denies executing it.

The proviso does not excuse A from calling an attesting witness merely because the deed is registered. The requirements for proving execution must be examined in light of the applicable provisions.

Example 3: Disputed will

A produces a registered will and argues that no attesting witness needs to be called because the document has been registered.

This argument is incorrect under Section 67 BSA. The proviso expressly excludes wills. The execution of the will must be proved in accordance with the applicable evidentiary and succession-law requirements.

Section 67 BSA and Proof of a Will

Wills are particularly important when studying this provision because the registered-document exception expressly excludes them.

Section 63 of the Indian Succession Act, 1925 prescribes the execution and attestation requirements for an unprivileged will. Read together with Section 67 BSA, the relevant rules ordinarily require the party propounding the will to call at least one attesting witness who is available and capable of giving evidence.

The witness’s evidence must establish the legally required execution and attestation. Merely proving that the testator’s signature appears on the document may not be sufficient.

If no attesting witness can be found, or the witness denies or does not recollect execution, Sections 68 and 70 BSA may become relevant, depending on the circumstances.

The precise requirements may vary for privileged wills and other special situations under the applicable law.

Difference Between Execution and Attestation

Basis	Execution	Attestation
Meaning	Completing the legally relevant act of signing or executing a document	Witnessing and signing the document as an attesting witness in accordance with the law
Main focus	Whether the person executed the document	Whether the required witnessing and attestation took place
Legal requirements	Depend on the type of document and governing statute	Apply where the law requires attestation
Example	A testator signs a will	Witnesses attest the will in accordance with Section 63 of the Indian Succession Act

A document may bear the signature of the person who purportedly executed it, yet the required attestation may remain unproved. Where the law requires attestation, both aspects must be considered.

Important Case Laws on Proof of Execution of Attested Documents

The following judgments interpret the corresponding provisions of the Indian Evidence Act, 1872. They remain useful for understanding the principles carried forward into Section 67 BSA, although they were not decisions directly interpreting the BSA provision.

1. Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003)

Citation: (2003) 2 SCC 91.

Court: Supreme Court of India.

Legal issue: The case concerned proof of a will and the requirements under Section 68 of the Indian Evidence Act, 1872, read with Section 63(c) of the Indian Succession Act, 1925.

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

Principle: The Supreme Court explained that merely proving the testator’s signature is not enough. The party propounding a will must prove its due execution and the legally required attestation. Although the Evidence Act ordinarily requires only one attesting witness to be called, that witness must be able to prove the execution and attestation required by law.

The Court also clarified that the provision allowing other evidence when an attesting witness denies or cannot recall execution cannot be used as a shortcut where another available attesting witness has not been called despite being capable of proving execution.

Relevance to Section 67 BSA: The judgment is important for understanding why the evidence of an attesting witness must establish the required elements of execution and attestation, particularly in will disputes.

2. H. Venkatachala Iyengar v. B.N. Thimmajamma (1959)

Citation: AIR 1959 SC 443.

Court: Supreme Court of India.

Legal issue: The case concerned proof of a will, including its execution, the evidence of attesting witnesses and the circumstances relevant to its genuineness.

Principle: The Supreme Court explained that a party propounding a will must establish its due execution and satisfy the applicable legal requirements. The court must consider the evidence as a whole and examine suspicious circumstances where they arise.

Relevance to Section 67 BSA: The judgment is a leading authority on proof of wills. It helps explain why compliance with the statutory requirements for execution and attestation is essential, while also showing that formal proof must be considered alongside the surrounding circumstances.

3. Veena Singh (Dead) Through Legal Representative v. District Registrar/Additional Collector (F/R) (2022)

Citation: Civil Appeal No. 2929 of 2022, decided on 10 May 2022.

Court: Supreme Court of India.

Legal issue: The dispute concerned an allegedly executed sale deed, including whether the document had been executed and the legal meaning of execution.

Principle: The Supreme Court examined the concept of execution in the context of the Registration Act, 1908. It explained that execution involves signing a document as a consenting party to its contents; the issue is not necessarily resolved by the mere presence of a signature.

Relevance to Section 67 BSA: Although the case was not a direct interpretation of Section 67, it is useful in distinguishing the act of execution from the separate evidentiary requirements for proving a document required by law to be attested.

Difference Between Section 67 BSA and Section 68 of the Indian Evidence Act, 1872

Basis	Section 67 BSA	Section 68 Indian Evidence Act
Subject	Proof of execution of a document required by law to be attested	Same subject
General rule	At least one attesting witness must ordinarily be called if available and capable	Substantially the same rule
Registered-document exception	Applies to registered documents other than wills, unless execution is specifically denied	Substantially the same exception
Current statutory framework	Bharatiya Sakshya Adhiniyam, 2023	Predecessor provision, repealed from 1 July 2024, subject to applicable savings and transitional provisions

Section 67 BSA came into force on 1 July 2024. Earlier judgments interpreting Section 68 of the Indian Evidence Act remain relevant to the extent that their reasoning applies to the corresponding provision and the current statutory framework.

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 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 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 should be read together when analysing the execution and proof of attested documents.

Important Points for Law Students and Judiciary Aspirants

• Section 67 BSA corresponds to Section 68 of the Indian Evidence Act, 1872.
• The provision applies to documents that the law requires to be attested.
• Ordinarily, at least one attesting witness must be called to prove execution if the witness is alive, capable of giving evidence and subject to the court’s process.
• The witness must be able to prove the legally required execution and attestation.
• The registered-document exception does not apply to wills.
• For registered documents other than wills, an attesting witness need not be called under this section unless execution is specifically denied.
• A document’s registration does not automatically resolve every question concerning its execution, validity or enforceability.
• Janki Narayan Bhoir v. Narayan Namdeo Kadam is a leading authority on proving the execution and attestation of wills.
• H. Venkatachala Iyengar v. B.N. Thimmajamma is a leading decision on proof of wills and suspicious circumstances.

Frequently Asked Questions (FAQs)

1. What is Section 67 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 67 prescribes the general rule for proving the execution of a document that the law requires to be attested. It ordinarily requires at least one attesting witness to be called, subject to the statutory conditions and exception.

2. Which section of the Indian Evidence Act corresponds to Section 67 BSA?

Section 67 BSA corresponds to Section 68 of the Indian Evidence Act, 1872.

3. Is one attesting witness sufficient to prove a document?

Section 67 ordinarily requires at least one attesting witness to be called. However, the witness must be able to prove the relevant requirements of execution and attestation. Other statutory provisions may impose additional requirements, particularly for wills.

4. Is an attesting witness required for a registered document?

Not necessarily. Under the proviso to Section 67, an attesting witness need not be called merely to prove execution of a registered document other than a will, unless its execution is specifically denied.

5. Does the registered-document exception apply to wills?

No. The proviso expressly excludes wills. A will must be proved in accordance with the applicable provisions of the BSA and the Indian Succession Act, 1925.

6. What happens if no attesting witness is available?

Section 68 BSA addresses proof where no attesting witness can be found. The party relying on the document must satisfy the requirements of that provision and any other applicable law.

7. What is the difference between Sections 67 and 68 BSA?

Section 67 deals with the ordinary rule requiring an attesting witness to prove execution. Section 68 addresses the situation where no such attesting witness can be found.

Conclusion

Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 establishes the general rule for proving the execution of documents that the law requires to be attested. Its central requirement is that an available and capable attesting witness must ordinarily be called to prove execution. The exception for certain registered documents does not extend to wills. For examinations and practical legal work, the most important points are the availability of the attesting witness, the registered-document proviso, and the distinction between proving a signature and proving legally compliant execution and attestation.

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