Sections 71 and 72 of the Indian Evidence Act, 1872: Proof of Attested Documents

Sections 71 and 72 form part of the rules governing proof of documentary evidence under the Indian Evidence Act, 1872. Section 71 provides an alternative method of proving execution where an attesting witness denies or does not recollect execution. Section 72 deals with a document that has in fact been attested even though the law does not require attestation.

Applicable-law note: This article explains the Indian Evidence Act, 1872 position immediately before the Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024. It is particularly relevant when the saving provision requires a pending application, trial, inquiry, investigation, proceeding or appeal to continue under the former Evidence Act.

Section 71 - Proof when attesting witness denies the execution

Section 71: If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

Section 71 operates as a safeguard where proof through an attesting witness becomes ineffective because the witness either denies execution or states that he or she does not remember it. In that situation, the section permits execution of the document to be established through other admissible evidence.

Meaning of important expressions

Attesting witness: A person who witnesses the execution of a document and signs it as a witness to that execution. Whether attestation is legally necessary depends on the law governing the particular document.

Execution of a document: In this context, execution concerns the act by which the person who is required to execute the document signs or otherwise validly completes it with the intention of giving effect to it.

Other evidence: Section 71 allows execution to be proved by other legally admissible evidence when the statutory situation described in the section arises. The nature and sufficiency of such evidence depend on the facts, the document and the applicable rules of evidence.

How Section 71 relates to proof by attesting witnesses

Section 71 should be read with the surrounding provisions governing documents required by law to be attested. Its purpose is not to make attestation requirements meaningless. Rather, it addresses the specific evidentiary difficulty that arises when an attesting witness who is called does not support or remember the execution.

The document must be considered in light of the law that governs whether attestation is required.
Section 71 becomes relevant when the attesting witness denies execution or does not recollect it.
Once the statutory situation arises, execution may be established by other admissible evidence.
The court must still assess whether the evidence produced actually proves execution in accordance with law.

Section 72 - Proof of document not required by law to be attested

Section 72: An attested document not required by law to be attested may be proved as if it was unattested.

Section 72 distinguishes voluntary attestation from attestation required by law. Merely because signatures of attesting witnesses appear on a document does not, by itself, impose the special mode of proof applicable to a document that the law requires to be attested. If the law does not require attestation, the document may be proved in the ordinary manner applicable to an unattested document.

Practical effect of Section 72

The central question is whether another legal provision makes attestation compulsory for the particular document. If not, the fact that parties chose to have the document witnessed does not ordinarily convert it into a document that must be proved through the special statutory procedure applicable to compulsorily attested documents.

Difference between Sections 71 and 72

Section 71 deals with a failure of proof through an attesting witness who denies or cannot recollect execution, and permits execution to be proved by other evidence. Section 72 applies where attestation was not legally required in the first place and allows the document to be proved as though it were unattested.

Legal position before commencement of the Bharatiya Sakshya Adhiniyam, 2023

The Bharatiya Sakshya Adhiniyam, 2023 repealed the Indian Evidence Act, 1872 and came into force on 1 July 2024. Its repeal-and-savings provision preserves the former Evidence Act for applications, trials, inquiries, investigations, proceedings and appeals that were pending immediately before commencement, subject to the terms of the saving clause. Accordingly, identifying when the proceeding began is important before deciding which evidence statute governs it.

This page is a general legal information article and should be read with the complete statute and the law governing the particular document and proceeding.