• Witness

Evidence act section 71:
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."

*If witness deny the execution or unable to recollect, all attesting witness exhausted then can use other evidence to prove the document execution as per evidence act section 71. This is clear.
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Question: 
1. Please provide the list of all other evidences allowing commonly in court to prove the document as per section 71? 

[LIST OF ALL POSSIBLE OTHER EVIDENCES AS PER SECTION 71 OF EVIDENCE ACT TO PROVE THE DOCUMENT]
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Note: When to apply the evidence act section 71 is clear. For when to apply - reference judgement also i have, so this note part relevant information is not required. Also note considering client privacy unable to provide further more details. Please refer the question part and please provide the requested list.

Thank you.
Asked 5 years ago in Property Law
Religion: Hindu

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20 Answers

Is it about the Will ? Because witness testimony is necessary to prove Will. And law is clear that court is not wholly dependent on the testimony of witness to prove document, court can take judicial notice of other prevailing circumstances and evidence. Like if registered document - presumption of its validity etc.

Sec 71 has application only when sec 68 fails. 

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

1. The signature of the attesting witness can be proved by appointment of a hand writing expert or by way of comparing his other admitted signature.

2. For judgment tine contents of the evidence of the attesting witness needs to be seen. 

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

Under Section 68 of the Indian Evidence Act, a concession has been made to prove and establish a Will, only by examining one attesting witness, even though the Will has to be attested by two witnesses, mandatorily. But, in his evidence, he has to satisfy the attestation of the Will by him and the other attesting witness, in order to prove that there was due execution of the Will. Sections 69 and 71 of the Indian Evidence Act is an exception to the general rule contained in Section 68 of the Indian Evidence Act. Under Section 69 of the Indian Evidence Act, if no attesting witness is found, it can be proved by other evidence that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. Section 71 of the Indian Evidence Act is to meet the situation, where it is not possible to prove the execution of a Will by calling the attesting witness, though alive, or when the attesting witnesses have been called, they deny or fail to recollect the execution of the document. In that way, Section 71 of the Indian Evidence Act is incorporated to safeguard the mandatory provisions of Section 68 of the Indian Evidence ActSection 71 of the Indian Evidence Act is only to give assistance and come to rescue of a party who has taken steps to get attesting witness to give evidence, but he failed or such witness denied or failed to recollect the execution of the Will. This is only with a view to prove the due execution by "other evidence"

 

 

In Indu Bala v. Mahindra Chandra, , the Hon'ble Supreme Court has laid down what is the mode of proof in order to dispel the suspicious circumstances, and how the onus lies on the propounder to explain certain circumstances. It is observed in paragraph-7 of the judgment as follows, affirming the previous decisions:

"If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.

It is also made clear in Paragraph-8, what is the suspicious circumstances which reads:

"A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or not expected of a normal person.

 

 In Kashibai v. Parwatibai, it is held, when no witnesses had deposed that the Will was signed by the deceased, in his presence or he had attested the document, it should be held, the execution of the Will was not proved, as contemplated under Section 68 of the Evidence Act. The Hon'ble Supreme Court has also considered Section 63 of the Indian Succession Act, as well as Section 68 of the Indian Evidence Act, including the definition for attestation as well as execution, wherein it is observed:

"A reading of Section 68 will show that 'attestation' and 'execution' are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 63 of the Indian Succession Act, 1925 also lays down certain rules with regard to the execution of unprivileged Wills. Clause (c) of Section 63 provides that the Will shall be attested by two or more witnesses, each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person; and each of the witnesses should sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary."

 

A Division Bench of this Court in Ammu Balachandran v. O.T. Joseph, , while considering the suspicious circumstances, viz., that some pages of the Will were not signed by the testator, has taken the view that one signature on the last sheet, made with the intention of executing the Will is sufficient. The Division Bench has observed, that Section 63 of the Indian Succession Act only says that the signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as Will. The signature or mark of the testator can be either at the commencement or at the end, but it must be so placed that it shall appear that it was intended to give effect to the instrument as a Will. It is further observed, where the other side alleges undue influence, fraud or coercion, it is for them to prove the ingredients and satisfy the Court that the document produced in Court is defective for those reasons. Further, it is said, delay in propounding the Will also, may be considered as one of the suspicious circumstances and considering this point, it is held, that even if there is any delay, if the same is properly explained, that cannot be treated as a suspicious circumstance for denying a probate.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

The other witnesses may include witnesses who has seen him sign the same. May be registrar office staff or other witness. 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

It may be proved by calling other witnesses who were present and saw the signature of both the executant and the attesting witness.

 

2) Where the witness is not available or is not able to recollect facts, the profounder can prove by any other secondary evidence. One attesting witness turned hostile and the other was not examined, Section 71 was not applicabl

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. There is no 'list' of other evidences. No straight jacket formula exists.

2. If the document cannot be proved through the testimony of attesting witness then other attesting witness, if any, can prove the document.

3. If there is only one attesting witness who either denies or does not recollect the execution of the document then his signature can be proved through examination of any other witness who may be acquainted with the execution of document.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

Dear Sir,

There may be other witnesses such as NOTARY who attested the documents, his records/registers and other persons who were involved in the dealings whatsoever and saw the action of attestation of document. 

Ganesh Singh
Advocate, New Delhi
7169 Answers
16 Consultations

Section 71

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

There is no such list. 

All statements which court permits or requires to be made by witness are oral evidence .

All documents including electronic records produced for inspection of the court are documentary evidence .

You can use all the above as evidence if they relate to the matter of fact under inquiry .

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

A list of all possible evidence cannot be given. It al depends upon the facts and circumstances of the case. You cannot produce/manufacture evidence on the basis of the list provided but if you have any evidence pertaining to this issue then you may produce it and try convincing the court.

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

A handwriting expert may be a good witness to prove execution of the document, if the attesting witness fails. Any other person present at the time of execution of the document may be produced as a witness.

Swaminathan Neelakantan
Advocate, Coimbatore
3070 Answers
20 Consultations

1. You can provide the report of writing expert by providing specimen of original signatures of testator and witnesses. 

2. If will is written by testator himself then you can also get his writing report from writing expert. 

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

File application in court to adduce evidence under section 71 or argue on sec 71 in final argument. 

Facts of case necessary element to evoke sec 71.

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

A ‘Will’ is an instrument by which a person makes a disposition of his property to take effect after his death and which is in its own nature ambulatory and revocable during his life.

A ‘Will’ is an obstruction in the line of succession. Alternatively, ‘Will’ may be defined as a continuous act of gift up to the moment of death In civil law.

According to the purport of Section 61 of the ISA, a ‘Will’ or any part of a ‘Will’, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. However, persuasion and flattery is not forcible importunity.
The burden of proving that fraud was played upon the testator in obtaining the execution of the ‘Will’ is upon the person who alleges it.8 Similarly, the burden of proving that the ‘Will’ was executed under undue influence rests upon the party who alleges it.9
The onus probandi in each case lies upon the propounder, and the propounder has to discharge it by satisfying the conscience of the court that the instrument propounded is the last and final ‘Will’ of the testator and it was executed by the testator sans any force, coercion or undue influence.

 

In the case of Banga Bihara v. Baraja Kishore Nanda14, it was held that, 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.

However, 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, unless its execution by whom-so-ever it purports to have been executed is specifically denied.

 

The presence of suspicious circumstances makes the initial onus of proof heavier on the propounder of the ‘Will’ and thus in cases where the circumstances attendant upon the execution of the ‘Will’ excite the suspicion of the court, the propounder must remove all legitimate suspicion before the document can be accepted as the last ‘Will’ of the testator.

 

 

In the case of Babu Singh & Ors v. Ram Sahay19, it was observed that, Section 69 of the IEA would apply in a case where the attesting witness is either dead or out of the
jurisdiction of the court or kept out of the way by the adverse party or cannot be traced
despite diligent search. As per the mandate contained in Section 69 of the IEA the
‘Will’ is to be proved by proving the handwriting of the testator and that those of the
attesting witnesses.

 

Section 72 of Evidence Act "Proof of document not required by law to be attested"

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

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Already replied about other witnesses

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

section  71 of the Indian Evidence Act is only to give assistance and come to rescue of a party who has taken steps to get attesting witness to give evidence, but he failed or such witness denied or failed to recollect the execution of the Will. This is only with a view to prove the due execution by "other evidence

2) The Hon'ble Apex Court while examining the rigour of Section 71 of the Evidence Actin the matter of Jagadish Chand Sharma's case referred to supra has held that Section 71 of the Evidence Act requires strict construction and its application would arise only in two contingencies namely, denial of execution of the Will by the attesting witnesses or said witnesses does not recollect the execution of the document and it has been further held that such denial must be clear, unhesitant and failure to recollect must be real.

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. When there is no list of evidences given out in the Act itself, how do you expect us to create one.

2. Be practical in your approach.,

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

Evidence of some other person present on the scene at the time of execution to prove the execution of the document and that of a handwriting expert to prove the signature of the Executant are sufficient to satisfy Sec-71, in my humble view.

Swaminathan Neelakantan
Advocate, Coimbatore
3070 Answers
20 Consultations

 - As per Section 68 of the Evidence Act, 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.

- Further, under section 71 of the Act, if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

- But as per section 70 of the Act, the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

- Hence, Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances

- Hence, as per section 70 , if the opposite party is having knowledge for the said documents execution , then it is itself an admission for the document. 

- However, this document can also be proved after presenting such witnesses , who was available that time , but was not a part of the execution. 

- Further secondary evidence can also be proved the execution of the document in the absence of attesting witnesses. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

I will repeat here that based upon my answer you cannot produce evidence. There may be many types of evidence that has been presented during the last 150 years. The one we commonly know is documents oral evidence any technical evidence.

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

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