Proof when attesting witness denies the execution
Section 71 of the Indian Evidence Act, 1872 deals with proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. The Act came into force on 01 Sep 1872. Repealed by section 170 of the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
Section 71, The Indian Evidence Act, 1872 (Act 1 of 1872).
Now in the Bharatiya Sakshya Adhiniyam
BSA 70 Proof when attesting witness denies execution Text carried over almost unchanged 100%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
-
Babu Singh vs Ram Sahai @ Ram Singh
Court's Decision & Legal Precedent
Section 69 of the Indian Evidence Act can be invoked only when it is established through proper evidence (sworn testimony, not mere counsel statements) that no attesting witness can be found, and all available court processes under Order 16 Rule 10 CPC to compel attendance have been exhausted. A bare statement made through counsel that a witness has gone abroad, without supporting evidence, without service of summons, and without any attempt to invoke coercive processes, is insufficient to trigger Section 69. The ordinary mode of proof under Section 68 requiring examination of attesting witnesses must be strictly adhered to unless and until the prerequisites for Section 69 are substantively and procedurally satisfied. Handwriting expert evidence must be based on properly proved standard signatures, not on signatures taken from documents whose authenticity is itself in question.
On this section: Related provision regarding when attesting witness is produced but denies or fails to prove execution; distinguished from Section 69 scenario where witness is not produced at all
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
-
… When both the attesting witnesses did not support the case of the plaintiff, the Will ought to have been proved by any other evidence as adumbrated under Section 71 of The Indian Evidence Act, 1872. No attempt whatsoever was made and therefore, in the absence of any evidence for the proof of Will, the relief of declaration cannot be granted in favour of the plaintiff. No attempt was made by the plaintiff to prove the Will in the manner known to law. The 2nd point is answered …
-
… In light of the denial of execution of the Will dated 05.01.1996 the execution of the Will in accordance with Section 63 of Indian Succession Act, 1925 may appear to be true, but the bigger challenge arises with respect to proving the same once it is challenged by any party in the court of law. Sections 68 and 71 of the Indian Evidence Act, 1872 outline the guidelines for the evidence required to be led in proof of the Will which is a document required by law to be attested. "Section 68- Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used …
-
… The defendant, therefore, shall not require to obtain probate of the Will of her deceased husband. She shall be entitled to rely upon the writing of the deceased and prove the same as a document requiring attestation as required under the provisions contained in Sections 68 and 71 of the Indian Evidence Act and the special provisions of Section 63 of the Indian Succession Act applicable to the succession of the the deceased, in this suit itself. 25. The Review Petition is disposed of accordingly. The Suit shall proceed as previously directed. 26. Notice of Motion No.3312 of 2010 in the …
Questions about Section 71
What have the courts held on Section 71 of the Indian Evidence Act?
Babu Singh vs Ram Sahai @ Ram Singh (30 Apr 2008) is the leading judgment on this section among those set out below: Related provision regarding when attesting witness is produced but denies or fails to prove execution; distinguished from Section 69 scenario where witness is not produced at all.
How do I find court cases under Section 71 of the Indian Evidence Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: IEA 71, section 71 IEA, section 71 of the Indian Evidence Act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 1 reported judgment on this section is set out on this page, beginning with Babu Singh vs Ram Sahai @ Ram Singh (30 Apr 2008).
What should I read with Section 71 of the Indian Evidence Act, and has it changed?
For anything done on or after 1 July 2024 the provision to read is BSA 70 (Proof when attesting witness denies execution), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 71 of the Indian Evidence Act come into force?
Section 71 of the Indian Evidence Act, cited as IEA 71, came into force on 01 Sep 1872, having been enacted on 15 Mar 1872. It is no longer in force.
Other sections of this Act
- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant1207 words
- 14. Facts showing existence of state of mind, or of body of bodily feeling1080 words
- 92. Exclusion of evidence of oral agreement809 words
- 8. Motive, preparation and previous or subsequent conduct773 words
- 65B. Admissibility of electronic records743 words
- 3. Interpretation-clause667 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item e51341fa-7528-4327-9a57-5d194e16db6f). This page is not a substitute for legal advice.