Sajjad Husain LawSajjad Husain Law Associates

A testator's family produces a decades-old will. Both attesting witnesses are now dead. Is the will simply unprovable, its execution forever unverifiable because the two people who could have testified to it are gone? The Supreme Court answered no in Babu Singh & Ors. v. Ram Sahai alias Ram Singh, 2008 INSC 559, holding that Section 69 of the Evidence Act, 1872 exists precisely for this situation — and its BSA successor, Section 68 of the Bharatiya Sakshya Adhiniyam, 2023, carries the same rescue mechanism forward, minus one colonial-era clause the drafters chose to remove.

The old Section 69 of the Indian Evidence Act, 1872 added a second trigger to this same remedy: "or if the document purports to have been executed in the United Kingdom." Under colonial-era drafting, any document that appeared to have been executed in Britain was automatically treated the same way as a document whose attesting witness genuinely could not be found — the practical reality being that summoning a witness from the UK to an Indian court was, for most of the Act's history, simply not realistic. Section 68 of the BSA drops that clause entirely.

The practical effect of dropping the UK clause is not symbolic. Under the old Act, a document executed in London automatically qualified for this section's relaxed proof standard, regardless of whether an attesting witness could actually have been produced with reasonable effort — modern travel and communication having long since made "executed in the UK" a poor proxy for "witness unavailable." Under Section 68, a UK-executed document gets no special treatment: like a document executed anywhere else in the world, it only falls within this section if the attesting witness genuinely cannot be found, on the same footing as every other jurisdiction.

Babu Singh sets out, with some precision, exactly when an attesting witness counts as "not found" for this section's purposes. The Supreme Court held Section 68 (then Section 69 IEA) applies where the attesting witness is dead, is outside the jurisdiction of the court, has been kept out of the way by the adverse party, or cannot be traced despite a diligent search. Each of these is a distinct factual scenario, and courts expect the propounder to actually establish which one applies — a bare assertion that a witness is "unavailable," without more, will not do.

Notice what Section 68 does not require: it does not demand that the propounder somehow prove the attesting witness actually watched the document get signed, the way live testimony from that witness normally would. Instead, it substitutes a purely documentary form of proof — handwriting evidence establishing that the attestation and the execution both genuinely occurred, even without anyone who witnessed the event personally testifying to it. This is a meaningfully weaker form of proof than live witness testimony, which is precisely why the section is confined to situations where the stronger form of proof has become genuinely unavailable, not merely inconvenient.

Section 68 sits between two related fallback provisions already addressed elsewhere in this Part. Where the attesting witness has been located and called but denies or forgets the execution once on the stand, a different remedy applies, allowing execution to be proved by other evidence generally. Where the executant themselves is willing to admit execution directly, a separate, stronger remedy dispenses with the attesting-witness route altogether without even needing this section's handwriting-based substitute. Section 68 is reserved for the narrower case in between: the witness is simply gone, and no admission is available to shortcut the problem.

The "kept out of the way by the adverse party" scenario in Babu Singh deserves particular attention, since it addresses a genuine risk of manipulation this section could otherwise invite. Without that recognised category, a party opposing a document could simply make an inconvenient attesting witness disappear from proceedings — through pressure, inducement, or obstruction — and then argue the propounder must fall back on Section 68's weaker documentary proof rather than the witness's live testimony. By treating deliberate obstruction as its own recognised trigger, courts retain the ability to draw adverse inferences against the obstructing party, rather than simply accepting the weaker substitute proof as if the witness's unavailability were an innocent accident.

Key Takeaways

1. Fourth confirmed decolonising edit in this Chapter: Section 68 drops the old Act's "executed in the United Kingdom" clause, following the pattern already seen in Sections 77, 80, and 88.
2. UK documents no longer get special treatment: a document executed in Britain must now show genuine witness unavailability, exactly like a document executed anywhere else.
3. Four recognised "not found" scenarios: per Babu Singh v. Ram Sahai, 2008 INSC 559 — the witness is dead, outside the court's jurisdiction, deliberately kept away by the adverse party, or untraceable despite diligent search.
4. Twin-fold burden: the attesting witness's own handwriting on the attestation, and the executant's own handwriting on the signature, must both be independently proved.
5. A weaker substitute reserved for genuine unavailability: this handwriting-based proof stands in for live testimony only once the stronger form of proof genuinely cannot be obtained.

Section 68 keeps documents from becoming permanently unprovable simply because time, distance, or misfortune has removed the witnesses who could once have spoken to their execution. Babu Singh's four-scenario framework gives that rescue mechanism real teeth — it is available to genuinely stranded litigants, but not to those who could have called an available witness and simply chose the easier documentary route instead.