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Report No. 69

Chapter 32

Attested Documents

Sections 68-72

I. General

32.1. Proof of execution of a document, in general, has been already dealt with under section 67. As already stated,1 ordinarily no particular mode of proof is required for proving the execution of a document. But, in relation to certain special classes of documents, this rule had to be modified. This modification is to be found in sections 68 to 72 (documents requiring attestation). The object with which attestation is required by law, it is stated, is to afford proof of the genuineness of the document. To secure this object, certain broad principles, have been followed:

(1) The provisions of the prescribing attestation would be defeated if a document required to be attested were to be allowed to be used in .evidence otherwise than in accordance with the provisions of sections 68 to 71. Formalities imposed by law as "barriers against perjury and fraud" must be strictly observed.

(2) At the same time, the fate of a document is not necessarily at the mercy of the attesting witnesses. The mere fact that they repudiate their signatures or the like, does not invalidate the document, if it can be proved by evidence of a reliable character that they have given false testimony.

(3) Where, however, attestation is optional, a party is free to give such evidence as he pleases, the case not being one in which the law has required a particular form of proof.

1 See discussion as to section 67.

32.2. These are the broad principles underlying sections 68 to 72, which contain special provisions applicable to documents required by law to be attested. At least one attesting witness must be called.

32.3. Section 68-History of the English law.-

In England, the rule that1 one of the subscribing witnesses of an attested document must be called unless they were all unavailable, used to apply to all attested documents, whether attestation was required by law or not. Lord Ellen-borough said in R. v. Harringworth, (1815) 4 M&S 350, that the rule was as fixed, formal, and universal as any that can be stated in a court of justice". It probably originated in the ancient requirement that the witness to a deed should, where possible, be summoned to sit with the jury, in the days when that body was composed of witnesses rather than triers of fact.1

1. Cross on Evidence, (1973), p. 530.

32.4. In more modern times, the nile was sought to be justified on the ground that the parties to a document must be taken to have agreed that the document should not be given in evidence unless the attesting witness was called when possible,1 but, by virtue of section 7 of the Criminal Procedure Act, 1865 (which applies to civil and criminal cases), instruments to the validity of which attestation is not necessary may be proved as if there had been no attesting witnesses thereto, and section 3 of the Evidence Act, 1938, provides that in any proceedings, civil or criminal, an instrument to the validity of which attestation is requisite may, instead of being proved by an attesting witness, be proved in the manner in which it might be proved if no attesting witness were alive. The only exception in England is the case of testamentary documents, to which the section is expressly stated to be inapplicable. After this introductory discussion, we may proceed to consider the sections proper.

1. Whyman v. Garth, (1853) 8 Exch 803 (Pollock, CB.).



Indian Evidence Act, 1872 Back




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