Section 67 of Bharatiya Sakshya Adhiniyam

Source: Supreme Court  

Why in News?

Recently, Justices Aravind Kumar and Sandeep Mehta have held under Section 68 of the Indian Evidence Act, 1872 (Section 67 of Bharatiya Sakshya Adhiniyam, 2023 (BSA) at least one attesting witness to a Will must be examined to prove it, and this mandatory requirement cannot be waived even if no legal heirs are contesting the Will. 

• The Supreme Court held this in the matter of Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr. (2025). 

What was the Background of Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr. (2025) Case?

• The dispute arose between two brothers over a property located at No. 563, Ambedkar Basti near Balmiki Gate, Delhi. The property originally belonged to their father, Shri Kundan Lal.  
• The plaintiff-respondent (Suresh Chand) claimed ownership of the entire property through several documents allegedly executed by his father on 16th May 1996, including an Agreement to Sell, General Power of Attorney, affidavit, receipt of consideration for Rs. 1,40,000, and a registered Will. 
• The plaintiff alleged that his brother, the defendant-appellant (Ramesh Chand), was initially residing in the property as a licensee but became a trespasser after the purported sale.  
• The plaintiff further claimed that the defendant had wrongfully sold half the property to a third party (defendant No. 2/respondent No. 2). 
• The defendant-appellant countered these claims by asserting that the property was orally transferred to him by their father in July 1973, and he had been in continuous possession since then. He challenged the validity of all documents relied upon by the plaintiff and sought a declaration that these documents were null and void.  
• The defendant also pointed out inconsistencies in the plaintiff's position, noting that in an earlier suit (OS No. 294/1996), the plaintiff had admitted that their father was the owner of the property, yet later claimed to have purchased it from him on a date prior to that admission. 
• The defendant contended that he had been in uninterrupted possession of the property from 1973 to 1997, and during this entire period, their father neither filed any ejectment proceedings nor served any eviction notice. The father passed away on 10th April 1997.  
• The Additional District Judge decreed the suit in favour of the plaintiff, which was challenged before the Delhi High Court and subsequently before the Supreme Court 

What were the Court’s Observations?

• The Supreme Court observed that the High Court had erroneously held that the requirement of examining attesting witnesses under Section 68 of the Evidence Act applies only in cases of disputes between legal heirs, which was contrary to established law. 
• The Court emphasised that Section 68 of the Evidence Act makes it mandatory to examine at least one of the attesting witnesses of a Will, regardless of the nature of the dispute or the identity of the parties involved. 
• The Court noted that the registered Will propounded by the plaintiff was surrounded by suspicious circumstances, particularly because the alleged testator had four children but chose to bequeath the entire property to only one child without any explanation or evidence of estrangement with the other three children. 
• The Court observed that mere registration of a Will does not grant validity to the document, and the formalities required under Section 63 of the Indian Succession Act, 1925, and Section 68 of the Evidence Act, 1872, must be strictly complied with. 
• The Court found that an Agreement to Sell does not create any interest or charge on the property and cannot confer valid title, as it is merely a contract creating a right to obtain a registered sale deed to complete the transaction. 
• The Court observed that a General Power of Attorney is merely an instrument of agency whereby the grantor authorises the grantee to act on his behalf and does not constitute a transfer of immovable property or confer any title. 
• The Court noted that the plaintiff could not claim benefit under Section 53A of the Transfer of Property Act,1882 regarding part performance as he was not in possession of the property, which was evidenced by his own suit seeking possession. 
• The Court observed that in the absence of a validly proved Will, the property would devolve upon the Class-I legal heirs of the deceased father according to succession law, rather than being awarded to any single claimant based on unproven documents. 

What is section 67 of BSA?

About: 

• Section 67 of BSA mandates that if a document is required by law to be attested, it cannot be used as evidence until at least one attesting witness has been called to prove its execution. 
• Previously this section was covered under Section 68 of the Indian Evidence Act,1872.  
• The provision applies only when there is an attesting witness who is alive, subject to the process of the Court, and capable of giving evidence. 
• The section provides an exception for registered documents other than Wills - such documents do not require calling an attesting witness for proof of execution under the Indian Registration Act, 1908. 
• However, this exception does not apply if the execution of the registered document by the person who purports to have executed it is specifically denied. 
• The proviso clearly excludes Wills from the relaxation given to other registered documents, meaning Wills must always have at least one attesting witness examined regardless of registration. 
• For Wills, the mandatory requirement of examining at least one attesting witness cannot be waived even if the Will is registered, as registration alone does not substitute for proper attestation proof. 
• The section establishes that attestation requirements serve as a safeguard for document authenticity and cannot be bypassed through mere registration formalities for testamentary documents. 
• The distinction between Wills and other documents in the proviso reflects the law's recognition that testamentary dispositions require stricter proof standards due to their posthumous nature and potential for disputes. 

Case Laws: 

• In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others.(1959) the Supreme Court established that proof of Wills must satisfy the requirements of Sections 67 and 68 of the Evidence Act, and Section 68 specifically mandates that at least one attesting witness must be called to prove execution of documents required by law to be attested. 
• The Court in Meena Pradhan and Others v. Kamla Pradhan and Another (2023) observed that for proving execution of a Will, at least one attesting witness who is alive, subject to court process, and capable of giving evidence must be examined, and this requirement cannot be dispensed with regardless of circumstances. 
• In Mathai Samuel and Others v. Eapen Eapen (2012), the Court noted that a Will has three essential characteristics - it must be a legal declaration of testator's intention regarding property, it must relate to property disposition after death, and it remains ambulatory and revocable during the testator's lifetime, requiring strict proof standards including proper attestation.