The law requires several documents to be attested, as for example, (1) Wills, (Ss. 57 and 63, Indian Succession Act); (2) a mortgage, the principal money secured by which is Rs. 100 or more (Transfer of Property Act, S. 59); and (3) a gift of immovable property (Transfer of Property Act, S. 132). The four ways of proving such a document are as follows:
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1. The admission of a party to an attested document of its execution by himself is sufficient proof of its execution as against him. (S. 70)
ADVERTISEMENTS:
This admission relates only to the execution. It must be distinguished from the admissions mentioned in Ss. 22 and 65(b), which relate to the contents of a document.
To be effectual under this section, the admission must be unqualified. Thus, if a person admits his signature on a mortgage-bond, but denies that the attesting witnesses were present at that time, the bond will have to be proved under S. 68, by calling the attesting witnesses.
2. Such a document cannot be used in evidence until one attesting witness at least has been called for proving its execution, if there be an attesting witness (i) alive, and (ii) subject to the process of the Court, and (iii) capable of giving evidence. But, it is not necessary even to call an attesting witness if the document (not being a will), is registered, unless its execution by the person by whom it purports to have been executed is specifically denied. (S. 68)
This provision of S. 68 simplifies the difficulty of calling attesting witnesses where the document to be proved is a registered one, and is not a will, and its execution is not specifically denied by the person executing it. Under this provision, if the execution is not denied, it is not necessary to call any attesting witness.
ADVERTISEMENTS:
3. (i) If no such attesting witness can be found, or (ii) if the document has been executed in the United Kingdom, it must be proved that —
(a) The attestation of one attesting witness at least is in his handwriting; and
(b) The signature of the person executing the document is in his handwriting. (S. 69)
4. If the attesting witness denies or does not recollect the execution, the execution may be proved by other evidence. (S. 71)
ADVERTISEMENTS:
It is to be noted that fate of an attested document does not lie at the mercy of an attesting witness. If the attesting witness turns hostile, other evidence may be given to prove execution and attestation of the document. Such a document may then be proved in the same manner as documents which are not required to be attested.
An attested document which is not required by law to be attested may be proved as if it was unattested. (S. 72)
“To attest” is to bear witness to a fact. To attest a document means not only to subscribe one’s name to it, but also to be in fact present at its execution. To prove an attested document, one must prove (i) attestation, and (ii) signature; to prove an unattested document, one has to prove execution only.