In India, Sections 65 to 73 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Sections 67 to 73A of the Indian Evidence Act, 1872 (IEA) on 1 July 2024. The rules on proving signatures, attested documents and wills carry over. Section 68 BSA drops the "executed in the United Kingdom" route.
At a glance
| IEA | BSA | Rule in one line | Change |
|---|---|---|---|
| 67 | 65 | A signature or handwriting alleged to be a person's must be proved to be in his handwriting | Identical |
| 67A | 66 | Except for a secure electronic signature, an electronic signature alleged to be a subscriber's must be proved to be his | Minor edit |
| 68 | 67 | A document required by law to be attested is not used as evidence until one attesting witness (if available) is called; registered non-will documents excepted unless execution is specifically denied | Identical in substance |
| 69 | 68 | If no attesting witness can be found, prove one witness's attestation and the executant's signature by handwriting | Narrowed |
| 70 | 69 | A party's admission of execution of an attested document is sufficient proof against him | Identical |
| 71 | 70 | If the attesting witness denies or does not recollect execution, it may be proved by other evidence | Minor edit (heading) |
| 72 | 71 | An attested document not required by law to be attested may be proved as if unattested | Identical |
| 73 | 72 | Court may compare signature, writing or seal with admitted or proved specimens, and may direct a person in Court to write; applies to finger impressions | Minor edit |
| 73A | 73 | Court may direct production of the Digital Signature Certificate, or verification with the public key | Minor edit |
These are rules of proof, not offences, so no First Schedule classification applies. The numbering shifts by two for IEA 67 (now BSA 65) and by one from IEA 67A (now BSA 66) onward; IEA 73A becomes BSA 73. The BSA commenced on 1 July 2024 under S.O. 849(E) dated 23 February 2024.
What changed
- Narrowed — Section 68 (IEA 69): IEA: "If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved …". BSA: "If no such attesting witness can be found, it must be proved …". The United Kingdom limb is omitted; "hand writing" becomes "handwriting".
- Minor edit — Section 72 (IEA 73): the three unnumbered paragraphs become sub-sections (1), (2) and (3). The first clause reads "a signature, writing or seal" (IEA: "a signature, writing, or seal"), as does "although that signature, writing or seal has not been produced"; "finger-impressions" becomes "finger impressions". The finger-impressions paragraph had been added to Section 73 IEA by Act 5 of 1899.
- Minor edit — Section 73 (IEA 73A): clauses (a) and (b) are carried over; the Explanation that defined "Controller" by reference to Section 17(1) of the Information Technology Act, 2000 is not carried over. Section 2(2) BSA provides that words not defined in the BSA but defined in the Information Technology Act, 2000 have the meanings assigned there; on a reading of that provision, the omission is drafting only.
- Minor edit — Section 66 (IEA 67A): a comma is added after "affixed to an electronic record". The words "electronic signature" date from Act 10 of 2009 (with effect from 27 October 2009), which replaced "digital signature" in Section 67A IEA.
- Minor edit — Section 70 heading (IEA 71): "Proof when attesting witness denies the execution" becomes "Proof when attesting witness denies execution". The body is word for word the same.
- Identical in substance — Section 67 (IEA 68): the rule and the proviso (inserted into Section 68 IEA by Act 31 of 1926) are carried over; the citation "(16 of 1908)" moves to the margin.
- Identical — Sections 65, 69 and 71 (IEA 67, 70 and 72).
Statutory text (relevant extract)
Extract, Section 69 IEA (repealed from 1 July 2024):
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting …
Extract, Section 68 BSA:
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.
Extract, Section 67 BSA:
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 …
How it works — proving a signed or attested document
Step 1 — Is the document required by law to be attested? The BSA does not say which documents must be attested; that comes from the law governing the transaction. The judgments below describe Section 63 of the Indian Succession Act, 1925 as requiring a will to be attested by two or more witnesses.
- Not required to be attested → Section 71: it "may be proved as if it was unattested", that is, by proving the signature or handwriting under Section 65 (for example through a witness who saw it signed, an expert under Section 39, a person acquainted with the handwriting under Section 41, or comparison by the Court under Section 72).
- Required to be attested → go to Step 2.
Step 2 — Call an attesting witness (Section 67). At least one attesting witness must be called if one is alive, subject to the process of the Court and capable of giving evidence. Two exceptions:
- Registered documents other than wills — the proviso dispenses with the attesting witness for a document registered under the Indian Registration Act, 1908, "unless its execution by the person by whom it purports to have been executed is specifically denied".
- Admission by the executant — under Section 69, a party's admission that he executed the attested document "shall be sufficient proof of its execution as against him".
Step 3 — If the attesting witness fails.
- The witness denies or does not recollect execution → Section 70: execution "may be proved by other evidence". On the judgments below, this is a strictly construed safeguard, not a way around Section 67.
- No attesting witness can be found → Section 68: prove that one attesting witness's attestation is in his handwriting and that the executant's signature is in the executant's handwriting.
Comparison of handwriting (Section 72). Under sub-section (1), a disputed signature, writing or seal may be compared with one "admitted or proved to the satisfaction of the Court" to be the person's, even if the specimen was not produced or proved for any other purpose. Under sub-section (2), the Court may direct "any person present in Court" to write words or figures so that the Court can compare them. Sub-section (3) applies the section to finger impressions.
Electronic and digital signatures (Sections 66 and 73). Other than a secure electronic signature, an electronic signature alleged to be a subscriber's must be proved to be his (Section 66). To verify a digital signature, the Court may direct the person, the Controller or the Certifying Authority to produce the Digital Signature Certificate, or direct any other person to apply the public key listed in it (Section 73).
What this means in practice
For a propounder of a will or an attested deed
- Call an attesting witness who can speak to the attestation by every witness the governing law requires, not only his own. If one witness cannot cover the other's attestation and the other is alive and available, call the other too (Janki Narayan Bhoir, below).
- Do not rely on registration to prove a will: the proviso to Section 67 expressly excludes wills. In Jagdish Chand Sharma (below), the evidence of the Sub-Registrar who registered the will did not establish attestation.
- Keep Section 70 in reserve for a witness who genuinely denies or forgets execution; it will not rescue evidence that is simply deficient.
For a party resisting a document
- Where the document is registered and not a will, a specific denial of execution in the pleadings brings back the requirement to call an attesting witness under the proviso to Section 67.
- Test whether the witness examined actually saw the executant sign and whether he can speak to the other witness's attestation.
For the prosecution and investigating officer in forgery or disputed-writing cases
- Specimen writing during investigation is obtained under Section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), not under Section 72 BSA. Section 349 lets a Magistrate of the first class order any person, including an accused, to give "specimen signatures or finger impressions or handwriting or voice sample". Its predecessor, Section 311A of the Code of Criminal Procedure, 1973 (CrPC, inserted by Act 25 of 2005 with effect from 23 June 2006), covered only "specimen signatures or handwriting". The first proviso requires that the person has at some time been arrested in connection with the investigation or proceeding; a second proviso, new in the BNSS, lets the Magistrate, "for the reasons to be recorded in writing", order a specimen "without him being arrested".
- Section 72(2) BSA is a power of the Court seised of the case, to enable it to compare (Pali Ram and Sukhvinder Singh, below).
For the Court
- A judge may compare writings with his own eyes, but the Supreme Court has said the prudent course, where the writing is the sheet-anchor of the prosecution, is to take expert assistance (Pali Ram, below).
Judgments that still matter
Janki Narayan Bhoir v. Narayan Namdeo Kadam, [2002] Supp. 5 S.C.R. 175 (2002 INSC 551) — 17 December 2002. Doraiswamy Raju and Shivaraj V. Patil JJ. (judgment by Patil J.) heard a defendant's appeal in a suit for possession based on a will. Only one of the two attesting witnesses was examined; the other, though alive, was not called. The Court held that Section 68 "gives a concession" by allowing proof through one attesting witness, but that witness "should be in a position to prove the execution of a Will", including attestation by the other witness (report p. 182). Section 71 is "in the nature of a safeguard to the mandatory provisions of Section 68" for cases where the attesting witnesses called deny or fail to recollect execution, and has no application where the one witness summoned fails to prove execution and the other, though available, is not called (pp. 182–184). The Court also noted that calling available witnesses avoids an adverse inference under Section 114 illustration (g) (p. 183). It set aside the High Court's judgment, restored the first appellate court's decree and dismissed the suit (p. 185). The report shows no paragraph numbers.
Jagdish Chand Sharma v. Narain Singh Saini (Dead) through his LRs. & Ors., [2015] 6 S.C.R. 397 (2015 INSC 376) — 1 May 2015. Kurian Joseph and Amitava Roy JJ. (judgment by Roy J.) heard the propounder's appeals after the High Court reversed the trial court and held that a registered will had not been proved, so that no probate or letters of administration could be granted (paras 9–10). Setting out Sections 68 and 71 (paras 15.1–15.3), the Court held that Section 71 "has to be necessarily accorded a strict interpretation"; it is available only if the attesting witnesses produced "in clear terms either denies /deny the execution of the document or cannot recollect the said incident"; and it is "not a substitute of Section 63 (c) of the Act and Section 68 of the 1872 Act" (para 45.1). On the evidence of the two attesting witnesses examined, Section 71 was not invocable (para 29.1); their evidence and that of the Sub-Registrar before whom the will was registered did not show animo attestandi (para 33). The appeals were dismissed (para 48).
State (Delhi Administration) v. Pali Ram, [1979] 1 S.C.R. 931 (1978 INSC 188) — 26 September 1978. R. S. Sarkaria and O. Chinnappa Reddy JJ. (judgment by Sarkaria J.) heard the State's appeal against a High Court order holding that a Magistrate could not direct an accused to give specimen writing for an expert's comparison. The Court held that the two paragraphs of Section 73 "are not mutually exclusive. They are complementary to each other" (p. 942), and that a court holding an inquiry under the Code of Criminal Procedure does not exceed its powers under Section 73 if, in the interests of justice, it directs an accused appearing before it to give a sample writing for comparison by an expert chosen or approved by the court (p. 943). A judge should hesitate to base a finding on handwriting that forms the sheet-anchor of the prosecution solely on his own comparison; "the prudent course is to obtain the opinion and assistance of an expert" (p. 944). The appeal was allowed and the Magistrate's order restored; if the accused refused, the court could draw an adverse presumption under Section 114 (last page). The Magistrate's order in that case was dated 20 May 1972.
Sukhvinder Singh and Ors. v. State of Punjab, [1994] 3 S.C.R. 1061 (1994 INSC 208) — 12 May 1994. Dr. A. S. Anand and Faizan Uddin JJ. (judgment by Anand J.) heard appeals against convictions by a TADA Designated Court under Section 302 read with Sections 149 and 120B IPC and Section 3 of TADA for the murder of a kidnapped boy. The case against one appellant rested on ransom letters compared with specimen writings taken on the direction of a Tehsildar Executive Magistrate before whom no inquiry or trial was pending. The Court held that Section 73 "cannot be made use of for collecting specimen writings during the investigation", and that the words "any person present in the court" refer to parties (and possibly witnesses) to a cause pending before that court (pp. 1076–1077). The specimens could not be used, and that appellant was acquitted (p. 1078). The appeal was allowed for four appellants and partly allowed for Sukhvinder Singh, whose conviction under Section 302 IPC was maintained (last page). Section 311A CrPC, now Section 349 BNSS, was enacted later.
Sections 67, 70 and 72 BSA repeat the operative words of Sections 68, 71 and 73 IEA, so on a reading of the text these judgments remain relevant to the new sections. How Section 72(2) BSA and Section 349 BNSS interact for specimens taken during investigation is a question the text leaves open; no Supreme Court judgment on the new provisions was found.
Which law applies to your case
Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement". On a reading of that provision, a probate case or suit pending on 1 July 2024 applies Sections 67 to 73A IEA, and one begun afterwards applies Sections 65 to 73 BSA. See which law applies to an offence before 1 July 2024.
Frequently asked questions
What is the BSA equivalent of Section 68 of the Evidence Act? Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 68 of the Indian Evidence Act, 1872 from 1 July 2024. A document required by law to be attested cannot be used as evidence until at least one attesting witness, if alive, subject to the process of the Court and capable of giving evidence, has been called to prove its execution. The proviso for registered documents other than wills is carried over.
Do I need to call an attesting witness to prove a registered document? Under the proviso to Section 67 BSA, it is not necessary to call an attesting witness to prove the execution of a document, not being a will, registered under the Indian Registration Act, 1908, unless its execution by the person who purports to have executed it is specifically denied. The proviso does not apply to wills, so a will is proved through an attesting witness where one is alive, subject to the process of the Court and capable of giving evidence.
What changed in Section 68 BSA (formerly Section 69 IEA)? Section 69 IEA allowed execution to be proved by the handwriting of one attesting witness and of the executant if no attesting witness could be found, or if the document purported to have been executed in the United Kingdom. Section 68 BSA omits the United Kingdom limb, so the handwriting route now applies only where no attesting witness can be found.
Is examining one attesting witness enough to prove a will? Only if that witness proves the attestation by both witnesses. In Janki Narayan Bhoir v. Narayan Namdeo Kadam, [2002] Supp. 5 S.C.R. 175, the Supreme Court held that the one attesting witness examined under Section 68 of the Evidence Act must prove attestation by himself and by the other witness; if he cannot, and the other attesting witness is available but not called, the will is not proved.
When can other evidence be used under Section 70 BSA (formerly Section 71 IEA)? Section 70 BSA allows execution to be proved by other evidence if the attesting witness denies or does not recollect the execution. In Jagdish Chand Sharma v. Narain Singh Saini, [2015] 6 S.C.R. 397, the Supreme Court held that Section 71 IEA must be strictly construed and is available only where the attesting witness produced clearly denies execution or genuinely cannot recollect it (para 45.1); it is not a substitute for Section 68.
Can a court direct an accused to give specimen handwriting? Section 72(2) BSA lets the Court direct any person present in Court to write words or figures so that the Court can compare them. In Sukhvinder Singh v. State of Punjab, [1994] 3 S.C.R. 1061, the Supreme Court held that Section 73 IEA cannot be used to collect specimens during investigation. Separately, Section 349 BNSS lets a Magistrate of the first class order specimen signatures, finger impressions, handwriting or voice samples for an investigation or proceeding.
Which law applies to a suit or trial that was pending on 1 July 2024? Section 170(2) BSA provides that a trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as in force immediately before commencement. The BSA commenced on 1 July 2024 under S.O. 849(E), so Sections 67 to 73A IEA continue to govern those matters.
Related
- Proving documents, photocopies and secondary evidence — BSA 56-64 vs IEA 61-66
- Section 45 IEA vs Section 39 BSA — Expert opinion
- Sections 76-90A IEA vs Sections 75-93 BSA — Presumptions as to documents
- Sections 91-92 IEA vs Sections 94-95 BSA — Exclusion of oral by documentary evidence
- Offence before 1 July 2024 — which law applies
- Evidence Act to BSA — master mapping table
Sources
- Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 2(2), 65 to 73 and 170; arrangement of sections and commencement footnote (S.O. 849(E)) from the official text.
- Indian Evidence Act, 1872 (India Code text): Sections 67 to 73A with footnotes.
- Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Section 349. Code of Criminal Procedure, 1973 (India Code text): Section 311A with footnote.
- Judgments read in full text: Janki Narayan Bhoir v. Narayan Namdeo Kadam (S_2002_5_175_185_EN.md); Jagdish Chand Sharma v. Narain Singh Saini (2015_6_397_436_EN.md); State (Delhi Administration) v. Pali Ram (1979_1_931_946_EN.md); Sukhvinder Singh v. State of Punjab (1994_3_1061_1081_EN.md).
This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.