Report No. 185

Section 68

This section deals with 'proof of execution of document'. In the 69th Report, some amendments have been suggested and, therefore, we shall examine the matter in some detail. Section 68 reads as follows:

"68. 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."

Under the provisions of Section 57, 58 and 63 of the Indian Succession Act, 1925, certain wills are liable to be attested by two witnesses. (There may be other wills which are not required to be attested.) Under Section 59 of the Transfer of Property Act, 1882, mortgages for Rs.100 or more have to be attested by two witnesses and gifts of immovable property have to be also attested by two witnesses under Section 123 of the same Act.

In the 69th Report, various reasons were given for dispensing with the need for calling an attesting witness in the case of all documents (except wills) and confine the section to wills. It was also suggested that cases of "delay or expense in calling him", or "being kept out of the way by the adverse party" or 'incapable of giving evidence' should also be added in the exceptions, i.e. after the word 'unless'. Reference was made to the hardship created by the section requiring that an attesting witness be called in the case of every document required to be attested (except wills) and to the opinion of Sarkar to support this view. It was also said that Section 68 should not apply if the will is more than 30 years old (Section 90) or was not produced in spite of notice (Section 89).

We may add that the proposals are broadly in conformity with the English law as it stands after the (UK) Evidence Act, 1938. Phipson says (para 40.13):

"Documents required by law to be attested are (subject to the exceptions mentioned below) provable by calling the attesting witness. The rule is now imperative only in the case of wills and other testamentary instruments. The witness, in the case of wills, etc. is the witness of the court and can be cross-examined by the party calling him as to any evidence he gives tending to negative execution, or on other relevant issues."

In para 40.16(f), it is observed:

"The law has been much altered by the Evidence Act, 1938, Section 3. In the case of any document, other than a will or other testamentary disposition, the former law is practically reversed by the provision that an instrument required by law to be attested may be proved in civil or criminal proceedings as if no attesting witness were alive. In the case of a will or other testamentary instrument, the Act expressly leaves the old law unaltered.

In the case of a testamentary instrument, therefore, it remains the law that where the attesting witness is dead, insane, out of the jurisdiction, kept away in collusion with the other side, or cannot be found after diligent search, and the document is not 20 years old, secondary evidence of execution must be given by proof of the handwriting of the witness; or if this is not obtainable, by presumptive or any other available evidence. So, perhaps, if the witness is seriously ill."

It will be noted that the corresponding law in England is to accept not only documents other than a will but even in case of wills, to accept other situations where the witness is kept out of the way. So far as attestor who cannot be found, that aspect is covered by Section 69.

We shall now refer briefly to the reasons given both in England (Phipson) and in India (69th Report and Sarkar) as to why the procedure of calling an attesting witness in the case of all documents (other than wills), should be given up.

The reasons in the 69th Report and those added by us are: (i) hardship in calling the attestor as a witness, in as much as, over a period of years, the attestor may have gone to a distant place, or become old or sickly; (ii) if the evidence of the executant, if living, is not mandatory, why should attestor's evidence be mandatory; (iii) any way, attestation has to be proved, if the Transfer of Property Act had made attestation compulsory in the case of some documents. Even in the case of documents which did not require compulsory attestation, proof of attestation may add to the proof of genuineness of the document; (iv) sometimes, if the attestor denies his attestation, the parties have to cross-examine him and prove attestation; (v) it is not necessarily the best evidence.

Phipson also says (see para 40.13) that the original principle was this: "The reason is not (as is sometimes supposed) that proof by the attesting witness is the best evidence, but that he is the witness appointed or agreed upon by the parties to speak to the circumstances of its execution, an agreement which may be waived for the purposes of dispensing with proof at the trial but cannot be broken".

But, according to Phipson, this old principle is no longer accepted: "The rule appears to have no connection with the 'best evidence' principle, which, as already noticed, was a much later introduction. Indeed, at first a witness to an instrument was not necessarily one who had seen it being executed but one who was prepared to give it credit by his name, and it was no uncommon thing for such witnesses, when questioned, to know nothing about the execution." He says further: "There is no rule that evidence of an attesting witness is conclusive. Other persons present at the time may be called to contradict him".

Sarkar (15th Ed, 1999, p. 1124) quotes Wigmore (para 1288) to say that the theory that parties must be deemed to have agreed that an attestor will be a person who should speak about the circumstances of the execution, is not correct and there "no such agreement can be implied, particularly when attestation is required by law". In other words, the mandate of the law excludes any theory of an implied agreement that "the attestor" is to be the witness to the circumstances of execution. Wigmore also says (para 1288) that the right to cross-examine the attestor is not a weighty safeguard. Sarkar says:

"This reason is also criticized by Wigmore on the ground that "the rule applies even where fraud, duress, and time are not in issue, and even where the maker himself is competent as a witness." Again, the attestor "is in practice, not usually a person who knows anything about the circumstances preceding the document's execution, or knows more than any other person who by being present, would be a qualified witness". (Sarkar p. 1124)

The real reason for requiring attestation (though not for calling the attestor a witness), according to Wigmore (para 1288) is that precaution against forgery, non-existence of special hardship in obtaining the attestation of a witness, the attestor's testimony being the most desirable and trustworthy evidence as to the fact of execution of documents by illiterate persons who are dead and the fairness of placing the burden of producing the attesting witness upon the party of whose duty it was to prove the due execution and attestation.

It has also been held that under Section 68, it is not necessary that an attesting witness should prove execution; it requires that an attesting witness must be called to prove execution, but if he forgets or pretends to forget or denies execution or proves hostile, it may be proved by other evidence under Section 71 (see Bashiran v. Md. Hussain, AIR 1941 Oudh 284; Sarjoo v. Jagatpal, AIR 1942 Oudh 201 (quoted in Sarkar, p. 1124).

Sarkar says that the changes made in England in 1938 under the U.K. Evidence Act, 1938, to which we have already referred to are long 'overdue' in India and the "continuation of the former English law leads to avoidable perjury in many cases".

Sarkar (15th Ed, 1999) enumerates about 14 situations in which it may be difficult to call or examine an attestor (p. 1125-1126). One of them is that under the Merchant Shipping Act, 1894, documents requiring attestation, may be proved without calling attesting witnesses. We find that all these are covered by the proposals referred to in the 69th Report and the additions we have suggested. We are, therefore, not referring to these fourteen types of cases.

One other aspect is whether the words 'shall not be used as evidence' mean that the document can be used for collateral purposes. Such a view was not accepted in Shib Ch. v. Gour Ch: 27 CWN 134 following the older English cases. But, in several jurisdictions in America, the rule is relaxed when the document whose execution is to be proved is not a document necessarily involved in the pleading but comes collaterally or incidentally in issue (Wig. Section 129 quoted by Sarkar p. 1129).

However, the Allahabad High Court has relaxed this rul.- an admission in a mortgage bond of a prior mortgage could be relied upon for purpose of an acknowledgement without proof of attestation (Shyam Lal v. Lakshmi, AIR 1939 All 366) or to prove the handwriting of a scribe (Motichand v. Lalta, ILR 40 All 266; Mathura v. Chhedi, AIR 1915 All 254; Radhakrishnan v. Bharaethan, AIR 1990 Kerala 146. We propose that inadmissibility must be confined to the testamentary disposition coming into effect and not for collateral matters, such as where the will contains an acknowledgement of debt or proof of relationship etc.

Section 63 of the Indian Succession Act requires that the testator 'sign or affix his mark', but while referring to attestation, Section 63 used the word 'sign'. There is a conflict of opinion among the High Courts (see Sarkar p. 1143) and the author says that the view that 'mark' could be accepted as attestation is correct. We have already made a provision by adding an Explanation in Section 67.

Again, in regard to contention that the signature of a Registrar of Assurances should be treated as attestation appears to be not accep (see Abdul Jabbar v. Venkata Sastri, AIR 1969 SC 1147), there are conflicting views in the High Courts as to whether a scribe or any one who does not sign in the capacity of an attesting witness, can be treated as an attesting witness (see Sarkar p. 1147-1151). The Supreme Court has stated in Abdul Jabbar's case that a scribe or identifier cannot be an attesting witness unless he puts his signature animo attestandi.

We have referred to some of these aspects which have arisen under Section 68, but in view of the decisions of courts, we do not think any specific provision need be made in the section.

In the result, we recommend that Section 68 must be confined only to wills and required to be redrafted and the exceptions added and referred to in the 69th Report require further expansion.

The section as redrafted in the 69th Report reads as follows (see para 32.34). (Of course, one member Sri Mitra gave a note of dissent).

"68. If a will is required by law to be attested, it shall not be used as evidence until at least one attesting witness 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, unless the witness is incapable of giving evidence or is kept out of the way by the adverse party or is one whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable:

Exceptio.- Nothing in this section applies to the case where the will is in the possession of the opposite party, nor shall this section affect the provision of section 89 or 90."

Section 89 deals with documents in regard to which a notice is given for production and Section 90 to cases of wills more than 30 years old.

We propose a few more changes. One is that the bar must apply only in respect of proving the 'testamentary disposition' and not to proving collateral facts, already referred to. The other one is that the exceptions must also refer to a case where the attesting witness is kept away by another person in collusion with the adverse party.

We, therefore, recommend that Section 68 be redrafted as follows:

"68. Proof of execution of will required by law to be attested.- (1) If a will is required by law to be attested.- it shall not be used as evidence of any testamentary disposition 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.

(2) Notwithstanding anything contained in sub-section (1), an attestor need not be called as a witness to prove the execution of a will if,-

(a) the attesting witness is incapable of giving evidence; or is kept out of the way by the opposite party or by another person in collusion with that party or is one whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or

(b) the will is in the possession of the opposite party; or

(c) a party wants to refer to any collateral fact contained in the will; or

(d) the provisions of section 89 or section 90 apply."