Does Section 70 remove the requirement of calling an attesting witness in every case?

No. Section 70 operates in the situation contemplated by the law after an attesting witness has denied or failed to recollect execution. The general rule for documents required by law to be attested is contained in Section 67.

Bharatiya Sakshya Adhiniyam, 2023

Section 70 BSA: Proof When Attesting Witness Denies Execution

Q: What does Section 70 of the BSA provide?

Section 70 permits execution of the document to be proved by other evidence when the attesting witness denies or does not recollect its execution.

Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 deals with proof of an attested document where the attesting witness denies execution or cannot recollect it. In that situation, the execution of the document may be established through other admissible evidence.

Section 70. Proof when attesting witness denies execution. - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

Current law: The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023) came into force on July 1, 2024. Section 70 is part of the law governing proof of documents and attested instruments.

Meaning and Scope of Section 70 BSA

Section 70 provides a method of proving execution when an attesting witness does not support the execution of the document. It becomes relevant where the witness either expressly denies execution or states that he or she does not remember the execution.

The provision prevents proof of an attested document from failing merely because the attesting witness turns hostile, denies the relevant facts, or genuinely cannot remember the transaction. The party relying on the document may then prove execution through other legally admissible evidence.

Section 70 should be read with Section 67, which contains the general rule for proof of documents required by law to be attested.

When Does Section 70 Apply?

Section 70 is attracted when an attesting witness is before the court but does not prove execution because the witness denies it or cannot recollect it. The provision then permits recourse to other evidence for proving that the document was in fact executed.

This is different from the situation where no attesting witness can be found. That situation is specifically addressed by Section 68 BSA.

What Can Be Used as "Other Evidence"?

The phrase "other evidence" is broad, but the evidence relied upon must still be admissible and relevant under the BSA and any other applicable law. Depending on the facts of a case, proof may include evidence concerning the signature or handwriting of the executant, surrounding circumstances, admissions, documentary material, or other competent evidence that establishes execution.

Section 70 does not automatically prove the document. It merely allows the party relying on the document to establish execution by another legally permissible mode when the attesting witness has denied or forgotten execution.

Section 70 in Context: Sections 67 to 71 BSA

Provision	Subject	Practical relevance
Section 67	Proof of execution of document required by law to be attested	General rule requiring at least one attesting witness to be called where the statutory conditions apply.
Section 68	Proof where no attesting witness found	Provides an alternative method when an attesting witness cannot be found.
Section 69	Admission of execution by party to attested document	An executant's admission can be sufficient proof against that person.
Section 70	Attesting witness denies or does not recollect execution	Allows execution to be proved by other evidence.
Section 71	Proof of document not required by law to be attested	An attested document not legally required to be attested may be proved as if it were unattested.

Equivalent Provision Under the Indian Evidence Act, 1872

Section 70 BSA substantially corresponds to Section 71 of the Indian Evidence Act, 1872, which dealt with proof when an attesting witness denied execution. The section number has changed under the BSA, so citations in current matters should be checked against the law applicable to the proceeding and the relevant transition provisions.

Illustrative Understanding

Suppose a document is one that must be attested by law and an attesting witness is called. If that witness states that the signature was not made in the witness's presence, or says that the witness cannot remember the execution at all, Section 70 permits the party relying on the document to attempt proof through other admissible evidence. Whether that evidence is sufficient remains a matter for the court on the facts and the applicable law.

Frequently Asked Questions

What does Section 70 of the BSA provide?

It provides that when an attesting witness denies or does not recollect execution of the document, execution may be proved by other evidence.

Does Section 70 dispense with calling an attesting witness in every case?

No. The general rule for a document required by law to be attested is contained in Section 67. Section 70 deals with the specific difficulty that arises when the attesting witness denies execution or cannot recollect it.

What is the difference between Sections 68 and 70?

Section 68 addresses the situation where no attesting witness can be found. Section 70 addresses the situation where an attesting witness is available but denies or does not remember execution.

Which old Evidence Act provision corresponds to Section 70 BSA?

The corresponding provision was Section 71 of the Indian Evidence Act, 1872.

Official Legal Sources

This page is intended as a general legal reference. The application of evidentiary rules depends on the document, the proceeding, and the facts of the case.