§ SECTION 70 · BSA 2023 · CHAPTER V — DOCUMENTARY EVIDENCE

Proof when attesting witness denies execution

A safety net for the attestation rule. If the attesting witness denies the execution, or does not recollect it, the document’s execution may still be proved by other evidence — a hostile or forgetful witness cannot sink it.

How to read Section 70

Call him you must — agree with you he need not.

The problem

The attesting witness denies or cannot recollect execution.

The answer

Execution may still be proved by other evidence.

The limit

You must first have called him (§ 67) — this is a fallback, not a bypass.

The bare Act

The section in its own words — colour-keyed by what each phrase does.

Section 70 · verbatim

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

In short: § 67 makes you call the attesting witness — but a witness can turn hostile, or honestly forget a signing from years ago. § 70 ensures that this does not destroy an otherwise genuine document. Where the attesting witness denies the execution or does not recollect it, the party may prove execution by other evidence — the executant’s admission (§ 69), proof of the relevant handwriting (§ 65, § 68), the evidence of the other attesting witness, or the surrounding circumstances. The duty is only to produce the witness, not to procure favourable testimony from him.

→ This carries forward IEA 1872 § 71 — proof where the attesting witness denies or forgets execution.

Glossary

attesting witness

One who witnessed and signed the execution — now denying or forgetful.

denies

Testifies that the execution did not happen as alleged.

does not recollect

Cannot remember the execution — e.g. long ago.

execution

The making of the document — the fact to be proved.

other evidence

Admission (§ 69), handwriting (§ 65/68), other witness, circumstances.

hostile witness

One whose evidence turns against the party who called him.

The picture

The witness fails you — other evidence steps in.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The ruleThe safety net

the ruleA denying witness is not the end of the road

In one lineIf the attesting witness denies the execution, or simply does not recollect it, the document’s execution may still be proved by other evidence.

If the attesting witness denies or does not recollect the execution of the document,IF the witness denies / forgetsif the attesting witness denies it, or cannot recollect the execution…

its execution may be proved by other evidence.→ prove it by OTHER evidence…its execution may still be proved by other evidence.

ExampleYou call the attesting witness to a will, but he denies signing it (or genuinely cannot remember). Execution may still be proved — for instance by proving his handwriting, or the testator’s, or by the other attesting witness.

✗ Not this§ 70 does not excuse you from calling the attesting witness under § 67 — you must still produce him. Only if he then denies or forgets may you turn to other evidence.

the safety netWhy a hostile witness cannot defeat the document

In one lineThe duty is to call the attesting witness — not to guarantee his support. If he turns hostile or forgetful, § 70 lets you fall back on other evidence of execution.

calling him is the duty§ 67 requires you to CALL him§ 67 requires you to call the attesting witness — not that he support your case.

denial / amnesia is not fatalthe case is not lostif he denies or forgets, execution can still be proved otherwise.

the other evidenceadmission / handwriting / othersuse the party’s admission (§ 69), handwriting (§ 65 / § 68), the other witness, or the circumstances.

ExampleThe attesting witness, now aligned with the other side, swears he never witnessed the deed. You prove execution by the executant’s admission and by a handwriting expert — the deed stands.

✗ Not thisThis is not a licence to skip the attesting witness. You must produce him first; only his denial or lack of memory opens the door to other evidence — a witness you simply chose not to call does not.

Connected provisions

§ 67

IEA 1872, § 71

Carried forward — proof when the attesting witness denies execution.

Bharatiya Sakshya Adhiniyam, 2023 — Section 70: Proof when attesting witness denies execution