Section 70 BSA: Proof When Attesting Witness Denies Execution

Section 70 BSA explains how a document can be proved when an attesting witness denies its execution or does not remember it.

Introduction

Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the proof of a document when an attesting witness denies or does not recollect its execution. It allows the execution of the document to be proved through other evidence in these circumstances.

Ordinarily, Section 67 BSA requires at least one available and capable attesting witness to be called to prove the execution of a document that the law requires to be attested. However, an attesting witness may deny having witnessed the execution or may genuinely be unable to remember it. Section 70 provides an alternative route of proof in such cases.

The provision is particularly important in disputes involving wills, gift deeds, mortgage deeds and other documents that require attestation by law.

Section 70 BSA corresponds to Section 71 of the Indian Evidence Act, 1872. The wording has been carried forward substantially unchanged.

Bare Act: Section 70 of the Bharatiya Sakshya Adhiniyam, 2023

70. Proof when attesting witness denies execution.—

If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

Meaning of Section 70 BSA

Section 70 provides an alternative method of proving the execution of an attested document when an attesting witness denies its execution or does not recollect it.

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.

For example, A relies on a will allegedly executed by B. During the proceedings, an attesting witness is called to prove the will but denies having witnessed its execution. In that situation, A may seek to prove the will through other evidence under Section 70, subject to the applicable legal requirements.

The provision prevents a party’s case from necessarily failing merely because an attesting witness denies execution or cannot remember the event. However, it does not automatically establish that the document was properly executed or attested.

Important: Section 70 permits other evidence; it does not make the document automatically genuine, valid or enforceable. The court must assess the alternative evidence and determine whether the legal requirements for execution have been satisfied.

Essential Elements of Section 70 BSA

1. The document must require attestation by law

Section 70 operates in the context of proving documents for which the law requires attestation. It is particularly relevant to wills and certain property-related documents.

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

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

2. The attesting witness must deny execution or fail to recollect it

Section 70 applies in either of two situations:

• Denial of execution: The attesting witness denies having witnessed or attested the document’s execution.
• Failure to recollect execution: The attesting witness states that they cannot remember the execution of the document.

These are alternative circumstances. The provision does not require both denial and failure to recollect.

3. Execution may be proved by other evidence

Once the statutory condition is satisfied, the party relying on the document may produce other legally admissible evidence to prove execution.

Depending on the circumstances, this may include:

• Evidence from a person who was present when the document was executed.
• Evidence from a person who witnessed relevant acts of execution or attestation.
• Relevant evidence from the registering officer, where appropriate.
• Other admissible evidence concerning the execution of the document.

The court must assess the credibility and sufficiency of the evidence. Merely producing additional witnesses does not guarantee that execution will be proved.

4. Other mandatory legal requirements remain applicable

Section 70 does not dispense with the substantive requirements governing the execution of a document.

Also Read: Section 103 BSA: Saving of Provisions of Indian Succession Act Relating to Wills

For example, where a will is involved, the requirements of Section 63(c) of the Indian Succession Act, 1925 must still be satisfied. The alternative evidence must be capable of establishing the legally required execution and attestation.

How Is a Document Proved Under Section 70 BSA?

The following sequence explains the provision’s practical application.

<list marker=”number” gap={2}> <list-item>**Identify the legal requirement.** Determine whether the document must be attested under the applicable law.</list-item> <list-item>**Examine the attesting witness.** Call the available attesting witness in accordance with the ordinary rule under Section 67 BSA.</list-item> <list-item>**Establish denial or failure to recollect.** Determine whether the witness denies execution or genuinely cannot remember it.</list-item> <list-item>**Present other evidence.** Produce admissible evidence capable of proving execution and the legally required attestation.</list-item> <list-item>**Assess the evidence as a whole.** The court decides whether the document has been duly proved under the applicable law.</list-item> </list>

Where a will requires attestation by two witnesses, the availability and evidence of the other attesting witness must also be considered. Section 70 should not be used to avoid mandatory requirements governing the execution of a will.

Practical Examples of Section 70 BSA

Example 1: Attesting witness denies signing a will

A produces a will allegedly executed by B. An attesting witness is examined but denies signing the will as a witness.

A may seek to prove execution through other admissible evidence under Section 70. The court must assess whether the alternative evidence establishes the required execution and attestation.

Example 2: Attesting witness cannot remember the execution

A relies on an old gift deed. The attesting witness acknowledges the signature but says they cannot remember witnessing the execution.

Section 70 may permit A to rely on other evidence to prove execution. The court must examine the witness’s testimony and the additional evidence before reaching a conclusion.

Example 3: A witness gives incomplete evidence

A relies on a will and examines an attesting witness. The witness states that they saw the testator sign the document but cannot establish the other legally required elements of attestation.

This situation must be distinguished from a clear denial or genuine failure to recollect execution. Incomplete evidence does not automatically permit the party to use Section 70 to fill every evidentiary gap.

Example 4: Both attesting witnesses deny execution

A relies on a will requiring two attesting witnesses. Both witnesses are examined and deny witnessing its execution.

A may seek to rely on Section 70 and other admissible evidence. However, the court must determine whether the evidence establishes compliance with the applicable requirements for executing and attesting the will. The mere fact that both witnesses deny execution does not prove the will.

Important Case Laws on Section 70 BSA

Section 70 BSA corresponds to Section 71 of the Indian Evidence Act, 1872. Earlier judgments under Section 71 remain relevant to the extent that their reasoning applies to the corresponding current provision. The following decisions explain important limits on the use of alternative evidence.

1. Jagdish Chand Sharma v. Narain Singh Saini (2015)

Citation: (2015) 8 SCC 615.

Court: Supreme Court of India.

Legal issue: The case concerned proof of a will and the relationship between the mandatory requirement of examining attesting witnesses and the alternative method of proof under Section 71 of the Indian Evidence Act, 1872.

Principle: The Supreme Court explained that the alternative provision operates as a safeguard where an attesting witness denies or fails to recollect execution. It is not a general substitute for compliance with the ordinary statutory requirements for proving an attested document.

The judgment emphasises that the alternative method must be applied in the circumstances contemplated by the provision and cannot be used indiscriminately whenever the evidence of an attesting witness is insufficient.

Relevance to Section 70 BSA: The judgment is important for distinguishing a genuine denial or failure to recollect execution from a mere deficiency in the evidence presented to prove a will. It interpreted the predecessor Evidence Act, not Section 70 BSA directly.

2. P.D. Parameswaran Pillai v. T.N. Ramachandran Nair (2025)

Case reference: RSA No. 159 of 2011, 2025:KER:29767, decided on 8 April 2025.

Court: Kerala High Court.

Also Read: Section 54 BSA: Proof of Facts by Oral Evidence

Legal issue: The case concerned the proof of a disputed will when the attesting witnesses denied its execution. The party relying on the will sought to invoke Section 70 BSA, corresponding to Section 71 of the former Evidence Act, and rely on other evidence.

Principle: The Kerala High Court held that Section 70 BSA must be applied carefully. Where an attesting witness denies or does not recollect execution, other evidence may be considered. However, the provision cannot be used merely to fill gaps in evidence that fails to establish the mandatory requirements for executing and attesting a will.

The Court explained that, where another attesting witness is alive and capable of giving evidence, that witness should also be examined when required. The court must distinguish between an actual denial or failure to recollect execution and evidence that is simply insufficient to prove the required formalities.

Decision: The appeal was dismissed. The Court found that the will had not been proved in accordance with the applicable requirements.

Relevance to Section 70 BSA: This judgment directly discusses Section 70 BSA and provides important guidance on its limits in will disputes. It makes clear that the provision cannot be used to dilute the mandatory requirements of Section 63(c) of the Indian Succession Act, 1925.

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

Citation: (2003) 2 SCC 91.

Court: Supreme Court of India.

Legal issue: The case concerned the proof of a will and the requirement to establish due execution and attestation under the Indian Succession Act, 1925 and the Indian Evidence Act, 1872.

Principle: The Supreme Court explained that proving a testator’s signature alone is not sufficient to establish a will. The party propounding the will must prove compliance with the applicable execution and attestation requirements. The Court also discussed the circumstances in which the alternative provision concerning a denial or failure to recollect execution may be invoked.

Relevance to Section 70 BSA: The judgment is useful for understanding that alternative evidence cannot be used to bypass the mandatory formalities for executing a will. It interpreted the predecessor Evidence Act and remains relevant to the corresponding evidentiary principles.

Difference Between Section 67 and Section 70 BSA

Basis	Section 67 BSA	Section 70 BSA
Subject	Proof of execution of a document required by law to be attested	Proof when an attesting witness denies execution
General rule	An available and capable attesting witness must ordinarily be called	Execution may be proved by other evidence in the specified circumstances
Trigger	The ordinary procedure for proving execution	Denial or failure to recollect execution by an attesting witness
Evidence	Evidence of an attesting witness	Other admissible evidence may be relied upon
Example	A witness proves execution of a will	A witness denies execution, and other evidence is presented to prove it

Section 70 is an alternative to the ordinary method in the circumstances it specifies. It is not a general replacement for Section 67.

Difference Between Section 70 BSA and Section 71 of the Indian Evidence Act, 1872

Basis	Section 70 BSA	Section 71 Indian Evidence Act
Subject	Proof when an attesting witness denies execution	Same subject
General rule	Execution may be proved by other evidence if the witness denies or does not recollect execution	Substantially the same rule
Statutory wording	Carried forward substantially unchanged	Predecessor provision
Current status	In force from 1 July 2024	Repealed from 1 July 2024, subject to applicable savings and transitional provisions

Earlier judgments under Section 71 remain useful for understanding the corresponding rule. However, the current statute and the applicable transitional provisions must be considered when determining which law governs a proceeding.

Related Provisions of the Bharatiya Sakshya Adhiniyam, 2023

• 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 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. In particular, Section 68 applies when no attesting witness can be found, whereas Section 70 applies when an attesting witness denies or does not recollect execution.

Important Points for Law Students and Judiciary Aspirants

• Section 70 BSA corresponds to Section 71 of the Indian Evidence Act, 1872.
• The provision applies when an attesting witness denies execution or does not recollect it.
• It permits execution to be proved through other admissible evidence.
• It does not automatically establish the authenticity or validity of a document.
• It cannot be used as a general substitute for the ordinary procedure under Section 67 BSA.
• In will disputes, the requirements of Section 63(c) of the Indian Succession Act, 1925 remain important.
• A court must distinguish an actual denial or failure to recollect execution from a mere deficiency in evidence.
• Jagdish Chand Sharma v. Narain Singh Saini explains the limits of the alternative method under the predecessor Evidence Act.
• P.D. Parameswaran Pillai v. T.N. Ramachandran Nair (2025) directly discusses Section 70 BSA and its application to disputed wills.

Frequently Asked Questions (FAQs)

1. What is Section 70 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 70 provides that if an attesting witness denies or does not recollect the execution of a document, its execution may be proved by other evidence.

2. Which section of the Indian Evidence Act corresponds to Section 70 BSA?

Section 70 BSA corresponds to Section 71 of the Indian Evidence Act, 1872.

3. What happens when an attesting witness denies execution?

The party relying on the document may seek to prove execution through other admissible evidence under Section 70 BSA. The court must determine whether that evidence establishes the legally required execution and attestation.

4. Can Section 70 BSA be used when the attesting witness gives incomplete evidence?

Not automatically. The court must distinguish a denial or genuine failure to recollect execution from a mere deficiency in the evidence. Section 70 cannot be used indiscriminately to fill every gap in proof.

5. Does Section 70 BSA apply to wills?

Yes. It may apply where an attesting witness denies or does not recollect execution of a will. However, the party relying on the will must still satisfy the mandatory requirements of Section 63(c) of the Indian Succession Act, 1925.

6. What is the difference between Sections 68 and 70 BSA?

Section 68 deals with proof where no attesting witness can be found. Section 70 deals with proof where an attesting witness denies or does not recollect execution. The circumstances triggering the two provisions are different.

7. What did the Kerala High Court decide in P.D. Parameswaran Pillai v. T.N. Ramachandran Nair?

The Kerala High Court held that Section 70 BSA cannot be used merely to fill deficiencies in evidence concerning the mandatory requirements for executing and attesting a will. The court must determine whether the witness has actually denied or failed to recollect execution and whether the other evidence establishes the required formalities.

Conclusion

Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 provides an alternative method of proving an attested document when an attesting witness denies or does not recollect its execution. Its purpose is to prevent the proof of execution from depending entirely on a witness who cannot or will not confirm it. However, the provision does not eliminate the need to satisfy the applicable legal requirements for execution and attestation. For examinations and practical legal work, the key distinction is between a genuine denial or failure to recollect execution and a mere deficiency in the evidence.

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