Section 68 Bharatiya Sakshya Adhiniyam, 2023: Proof where no attesting witness found

Section 68 of Bharatiya Sakshya Adhiniyam, 2023: Proof where no attesting witness found

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

If no such attesting witness can be found, it must be proved 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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Document Sec 2(1)(b) Proved Sec 2(1)(f)

Legal Commentary & Landmark Judgments: Section 68

Section 68 governs the method of proof when no attesting witness can be found, or if the document appears to have been executed outside India, enabling proof through secondary evidence of handwriting.

Witness Unavailability: Applies when all attesting witnesses are dead, insane, untraceable, or beyond the jurisdiction of the court.
Dual Proof Requirement: The party must prove: (1) that the attestation of at least one attesting witness is in that witness's handwriting, AND (2) that the signature of the executant is in the executant's handwriting.
Strict Cumulative Burden: Both handwritings must be independently proved; proving the executant's signature alone is legally insufficient.

Key Landmark Precedents:

K. Laxmanan v. Thekkayil Padmini (2009) 1 SCC 354: The Supreme Court held that where all attesting witnesses to a deed or will are dead, compliance with Section 69 IEA (Section 68 BSA) requires proof of both the executant's signature and the signature of at least one attesting witness.
Babu Singh v. Ram Sahai (2008) 14 SCC 754: Reiterated that handwriting of the deceased attesting witness can be proved through family members, acquaintances, or handwriting comparison under Section 72.

Courtroom Practice & Strategic Litigation Guidance:

When dealing with an ancient or disputed unprobated will where attesting witnesses have passed away, obtain death certificates of all attesting witnesses and summon bank signature cards or registered deeds bearing their known signatures to satisfy Section 68.