Section 71 of the Evidence Act, 1872

Section 71 of the Evidence Act, 1872-Proof when attesting witness denies the execution.—If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

COMMENTS

Object

(i)                Section 71 is in the nature of a safeguard to the mandatory provisions of section 68, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. Aid of section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence;

Janaki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2000 SC 761.

(ii)             Section 71 is meant to lend assistance and came to the rescue of a party who had done his best, but driven to a state of helplessness and impassibility cannot be left down without any other means of proving due execution by "other evidence"as well;

Janaki Narayan Bhoir v. Narayan Namdev Kadam, AIR 2003 SC 761