Section 69 Evidence Act – Proof Where No Attesting Witness Is Found

Section 69 of the Indian Evidence Act, 1872:
Doctrinal Foundations, Judicial Trajectory, and Practical Challenges

1. Introduction

Section 69 of the Indian Evidence Act, 1872 (“IEA”) provides a distinctive evidentiary pathway to prove an attested document—most frequently a will—when no attesting witness can be found or the document “purports to have been executed in the United Kingdom.” In an era of trans-jurisdictional mobility and increasing difficulty in securing witnesses decades after execution, Section 69 has assumed renewed importance. This article critically analyses the provision, its relationship with Sections 68 & 71, and its practical invocation in contemporary Indian courts, drawing extensively upon leading Supreme Court and High Court pronouncements.

2. Statutory Framework

The statutory scheme governing proof of attested documents is a graduated one:

  • Section 68 – Normal Rule: at least one attesting witness must be examined.
  • Section 69 – Exception I: where no attesting witness can be found (or the document was executed in the U.K.). Proof is permitted by establishing (i) that the signature of one attesting witness is in his handwriting; and (ii) that the executant’s signature is in his handwriting.
  • Section 71 – Exception II: where an attesting witness is available but “denies or does not recollect” execution.

Thus, Section 69 is triggered only when the propounder is able to demonstrate unavailability despite due diligence. Failure to exhaust compulsory processes under Order XVI Rule 10, Code of Civil Procedure, 1908 (“CPC”), will ordinarily bar recourse to Section 69.[1]

3. Historical Evolution and Legislative Intent

The framers of the IEA transplanted the English common-law insistence upon attestation to safeguard testamentary freedom. However, Indian socio-legal realities—migratory labour, long litigation delays, and illiteracy—necessitated a statutory safety-valve. Section 69 was therefore crafted to reconcile the evidentiary need for reliability with practical impossibility of producing witnesses long after execution.

4. Supreme Court Jurisprudence on Section 69

4.1 N. Kamalam v. Ayyasamy (2001)

The Court invalidated a will because the propounders bypassed attesting witnesses altogether and attempted to rely on affidavits years later.[2] Although Section 69 was not expressly invoked, the judgment underscores that availability must be affirmatively discounted before exceptions operate. The Court’s rejection of “scribe equals attesting witness” reasoning is frequently cited when Section 69 is pleaded.[3]

4.2 Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003)

While the principal holding concerned Sections 63 & 68, the Court described Sections 69–71 as “exceptions” and cautioned that parties cannot employ them to “go-by” the mandatory regime.[4] The decision has become the lodestar for High Courts construing the reach of Section 69.

4.3 Benga Behera v. Braja Kishore Nanda (2007)

The Court, interpreting Section 71, reiterated that Sections 69, 70 and 71 are sequential alternatives that become relevant only on satisfaction of factual predicates.[5] Though the attesting witness in that case was available, the exposition articulates clear doctrinal borders: Section 69 is for absence; Section 71 is for hostile or forgetful witnesses.

5. High Court Applications and Nuances

5.1 Process Exhaustion Requirement

The Calcutta High Court in Amal Shankar Sen v. Dacca Co-operative Housing Society[6] held that mere issue of summons is insufficient; coercive measures under Order XVI Rule 10 CPC must be pursued. This was followed by the Patna High Court in Sunaina Devi v. Lalita Devi[7] and reaffirmed by the Chhattisgarh High Court in Chhedu Ram v. Chhedi Bai[8].

5.2 Scribe Versus Attesting Witness

In Gondrala Sithamahalakshmi v. Pulipati Rajarao[9] the Andhra Pradesh High Court, placing reliance on Kamalam, clarified that neither Section 68 nor Section 69 contemplates treating a mere scribe as an attestor, unless the statutory ingredients of animo attestandi are proved.

5.3 Handwriting Proof Mechanics

Section 69 demands handwriting proof in two tiers: (i) an attesting witness, and (ii) executant. Courts have accepted expert opinion (Section 45 IEA), comparison by the judge (Section 73), and admission by knowledgeable relatives. However, in R. Saraswathy v. P. Bhavathy Ammal[10] the Kerala High Court emphasised that expert opinion supplements but cannot substitute compliance with Section 69’s dual-proof mandate.

6. Doctrinal Relationship with Sections 68 & 71

The tripartite scheme can be visualised as concentric circles:

  1. Section 68 – Core: Available attesting witness examined.
  2. Section 71 – Middle Circle: Witness present but non-cooperative.
  3. Section 69 – Outer Circle: Witness absent despite diligence.

Judicial insistence on this hierarchy prevents forum shopping and evidentiary shortcuts. Attempting Section 71 without first summoning witnesses, or invoking Section 69 sans process exhaustion, has been consistently rebuffed.[11]

7. Section 69 and Secondary Evidence (Sections 63 & 65)

Although both spheres involve proof without the “best evidence,” they operate differently:

  • Section 65 allows secondary evidence of contents when originals are unavailable.
  • Section 69 presumes the original is produced but attestation cannot be proved via witnesses; it therefore substitutes handwriting evidence for oral attestation.

The Supreme Court in Ashok Dulichand v. Madhavlal Dube warned that non-production of an original must be satisfactorily accounted for before secondary evidence is admitted.[12] High Courts have extended this logic to Section 69 to require strict foundational proof of witness unavailability.

8. Operational Checklist for Practitioners

  1. Identify and locate all attesting witnesses; secure current addresses.
  2. Issue summons under Order XVI Rule 1 CPC; document service reports.
  3. On non-appearance, move for warrant or coercive measures under Rule 10.
  4. Compile contemporaneous correspondence or affidavits establishing inability to locate witnesses (death certificates, emigration records, etc.).
  5. Collect admitted handwriting specimens of at least one attesting witness and the executant.
  6. Engage a handwriting expert; file Section 45 IEA opinion.
  7. Prepare to prove signatures through persons acquainted with handwriting (Section 47).

9. Emerging Issues

9.1 Digital Execution and Remote Attestation

With the steady adoption of electronic signatures under the Information Technology Act, 2000, questions arise whether Section 69 applies mutatis mutandis to digital attestations. Judicial guidance is awaited.

9.2 Cross-Border Probate Litigation

Where an Indian will is executed abroad, the “United Kingdom” limb of Section 69 symbolises colonial residue. Contemporary courts may need purposive interpretation to encompass other jurisdictions, given global Indian diaspora.

10. Conclusion

Section 69 serves as a narrow but vital aperture through which justice can still be done when attesting witnesses are beyond reach. Courts have guarded its boundaries jealously, insisting on demonstrable diligence and rigorous handwriting proof. Practitioners must, therefore, treat Section 69 not as an evidentiary shortcut but as a carefully policed exception whose successful invocation demands meticulous procedural compliance and robust corroborative material. As testamentary disputes multiply amidst demographic shifts, the doctrinal clarity distilled by the Supreme Court and High Courts provides a reliable compass for navigating the evidentiary labyrinth surrounding attested documents in India.

Footnotes

  1. Amal Shankar Sen v. Dacca Co-operative Housing Society Ltd., AIR 1945 Cal 350.
  2. N. Kamalam (Dead) v. Ayyasamy, (2001) 7 SCC 503.
  3. Gondrala Sithamahalakshmi v. Pulipati Rajarao, 2002 (5) ALT 302 (AP).
  4. Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91.
  5. Benga Behera v. Braja Kishore Nanda, (2007) 14 SCC 161.
  6. See footnote 1 supra.
  7. Sunaina Devi v. Lalita Devi, 2010 SCC OnLine Pat 862.
  8. Chhedu Ram v. Chhedi Bai, 2024 SCC OnLine Chh 85.
  9. Gondrala Sithamahalakshmi, note 3 supra.
  10. R. Saraswathy v. P. Bhavathy Ammal, 1988 SCC OnLine Ker 232.
  11. Sridevi v. Jayaraja Shetty, (2005) 2 SCC 784; Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209; et al.
  12. Ashok Dulichand v. Madhavlal Dube, (1975) 4 SCC 664.