The propounder of a will calls the only surviving attesting witness to prove its execution — and the witness, once in the box, says he does not remember signing it, or worse, denies the will was ever executed the way it claims. Does the will collapse for want of proof? Not necessarily. In Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761, the Supreme Court explained exactly when Section 71 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) can rescue a case like this — and, just as importantly, when it cannot.
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.
Section 70 carries forward Section 71 of the Indian Evidence Act, 1872 without any change in wording. Its purpose is narrow and remedial: the earlier sections of this Part require a document that the law compels to be attested to have at least one attesting witness examined before it can be used as evidence. Section 70 exists to stop that mandatory-witness rule from becoming an absolute trap — because a witness who is called, present, and willing to testify may simply not remember what happened, or may actively deny the document was ever properly executed, sometimes years or decades after the fact.
Janki Narayan Bhoir supplies two limits on this rescue provision that make it far narrower than a first reading might suggest. First, the Supreme Court described Section 71 IEA (now Section 70 BSA) as "a safeguard" to the mandatory attesting-witness requirement — available only when it becomes genuinely impossible to prove execution through the attesting witness route, not a convenient shortcut a propounder can reach for whenever it is more efficient. Second, and more consequentially, the Court held that where more than one attesting witness is available, a propounder cannot rely on Section 71 after just one of them fails to prove execution — the "best evidence" principle requires the other available attesting witness to be examined first, before other evidence can be resorted to at all.
What counts as adequate "other evidence" once Section 70 is properly triggered is deliberately left open, and that flexibility is the point. Courts have accepted comparison of the executant's signature under Section 72 of this Act, testimony from persons who witnessed the signing informally without being formal attesting witnesses, or circumstantial evidence establishing the document's authenticity through the surrounding facts. The section does not prescribe a hierarchy among these alternatives — it simply removes the earlier sections' insistence on attesting-witness testimony specifically, once that specific route has genuinely failed.
The distinction between "denies" and "does not recollect" also carries different practical weight, even though both trigger the same section. A witness who candidly says they cannot remember a signing from thirty years ago leaves the document's authenticity essentially untested — the door to other evidence opens without much adverse inference against the document itself. A witness who affirmatively denies the document was executed the way it purports to have been raises a live dispute the "other evidence" will need to affirmatively overcome, not merely supplement.
It is worth situating Section 70 against a related provision elsewhere in this Part that addresses the scenario where no attesting witness can be found at all. Section 70 governs a distinct problem: the witness is found, is examined, and simply fails to prove execution once on the stand — whether from genuine memory loss or outright denial. The two situations together ensure the mandatory attestation regime does not grind to a halt merely because a witness cannot be located, or because a witness's testimony, once obtained, turns out to be unhelpful or hostile — while still preserving the underlying policy of requiring genuine attempts to secure that testimony before other evidence is admitted.
The Explanation implicit in decades of case law applying this section is that courts scrutinise "other evidence" offered under Section 70 more carefully than they would scrutinise straightforward attesting-witness testimony, precisely because the section is functioning as a substitute for the primary mode of proof the law originally demanded. A propounder relying on Section 70 should expect the court to ask not just whether the substitute evidence is credible in isolation, but whether it genuinely closes the gap left by the failed or forgetful attesting witness, rather than merely gesturing in the same direction.
Key Takeaways
- Unchanged from IEA 71: Section 70 carries the rule forward verbatim.
- A safeguard, not a shortcut: per Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761, Section 70 applies only once the mandatory attesting-witness route has genuinely failed.
- All available attesting witnesses must be tried first: if a second attesting witness is available, the propounder must examine that witness too before falling back on other evidence.
- Two distinct triggers, different weight: a witness's genuine forgetfulness and an outright denial of execution both engage the section, but a denial creates a live dispute the other evidence must overcome.
- Open-ended "other evidence": handwriting comparison, informal witnesses, and circumstantial proof are all available once Section 70 is properly triggered.
Section 70 keeps the mandatory attesting-witness regime from becoming unworkable when memory fades or a witness turns hostile — but Janki Narayan Bhoir makes clear it is a fallback of last resort, not a first option. Propounders who skip available witnesses in the hope of leaning on this section instead often find, as the appellant did in that case, that the shortcut itself becomes the reason their document fails to be proved at all.