Section 71 is also an exception to the general rule laid down in Section 68 of the Evidence Act. It lays down if the attesting witness denies or does not recollect the execution of a document, the execution may be proved by any other evidence. It can be said that the execution of a document is not entirely left to the mercy of the attesting witness. Section 71 is an exception to the rule of proof of an attesting witness. It is permissive and an enacting section permitting a party to lead other evidence in certain circumstances.
According to the section “its execution may be proved by other evidence.” A plaintiff is not, therefore, precluded from adducing further evidence to prove execution. It may be proved by calling other witnesses who were present and saw the signature of both the executant and the attesting witness. Where the witness is not available or is not able to recollect facts, the profounder can prove by any other secondary evidence. One attesting witness turned hostile and the other was not examined, Section 71 was not applicable. Section 71 has no application when one attesting witness who has alone been examined, has failed to prove execution of will and other attesting witnesses though available has not been examined. The Supreme Court held: “At the same time Section 71 cannot be read as to absolve a party of his obligation under section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-bye to the mandate of law relating to proof of execution of will.”
Where the attesting witnesses deny the execution of the will the scribe of the will can testify the attestation by the witnesses. His statement come under section 71 of the Act. When the scribe stated that he had scribed the will under the instruction of deceased who had thumb marked, the will is taken of its correctness and in presence of the attesting witnesses who also signed in presence of deceased.
The execution of will was held to be duly proved. Where the attesting witness refused to support the case by saying that he had signed the will but the deceased had not put his thumb impression in his presence, cannot be termed as denial of execution or failure to recollect same so as to attract Section 71 of the Evidence Act. Where one attesting witnesses of a Will is dead, the Will can be proved by other evidence.