ATTESTATION – MEANING AND ESSENTIAL ELEMENTS
The Transfer of Property Act 1882 defines ‘Attestation’ under Section 3. The motive behind including the provision of attestation was to ensure that the transfer was done with free will of the executant. The legislation in India does not provide the requirement of the witness to read the whole document being attested. Thus, the witnesses do not need to go through the document and ask each and every typical fact of the transfer. The witnesses can be called to the court to prove their mark and presence to show that the transfer was a valid transfer, but in the case of attestation, there is no need to call all the witnesses, rather, just one person can be called to court as a witness to show the sanctity of the transfer.
This provision for attestation was not originally drafted as the way it is today. Initially, under 1865 Act, there was a dissimilarity in this provision. The part in relation to the personal acknowledgement was not there, and it was added through an amendment. Thus, the presence of witnesses was disposed. There are two parts to the attestation. First, where the attesting witnesses can be bodily present then there are at least two witnesses who should see the executant sign the document of transfer. And second part is with respect to the situation when witnesses are not physically present at the time of execution of the document. In such a situation, attestation can still be valid, if the executant himself gives a personal acknowledgement of the signature to the witnesses. In this article, we will learn about the meaning, essential elements, and effect of invalid attestation with a case law.
MEANING OF ATTESTATION
According to the Section 3 of Transfer of Property Act, Attestation means that a person has signed the document by way of testimony of the fact that he saw it executed. It does not import anything more, and therefore it must be distinguished from cases where a person signs a document merely as a witness to the execution but also with a view to giving consent to the transaction. A person who is a party to the deed cannot under any circumstances be allowed to sign the instrument as an attesting witness.
What is meant by the word ‘attestation’ is stated in Section 3 of the Transfer of Property Act. By Act No. XXVII of 1926 the definition was inserted in the interpretation clause and made retrospective by Act No. X of 1927 in order to make up a valid attestation. The essential conditions are-
- There must be two attesting witnesses.
- Each witness must:
- See that the executant sign or affix his mark, or
- See some other people sign the instrument in the presence and under the direct of the executant, or
- Receive from the executant a personal acknowledgement of his signature or mark or the signature of such other person.
- Each of the two attesting witnesses must have signed the instrument in the presence of the executant.
The mentioned three ingredients must be present for a valid attestation. However, it is not necessary that all the attesting witnesses should be present and sign at the same time, nor need any of them be present when the executant executes the instrument. In case the attesting witnesses are not present when the executant executes the instrument, it is essential that each one of them must receive from the executant a personal acknowledgement of its signature or mark.
Kumar Harish Chandra Singh Deo v Bansidhar Mohanty (AIR 1965 SC 1738)
The case relates to a mortgage deed. In the deed, the parties to the transaction, had been he mortgagor and the mortgagee, but the money to the mortgagor was advanced by a third person. The third person, i.e., the moneylender was one of the attesting witnesses. The third person, i.e., the moneylender was one of the attesting witnesses. The question arose whether the mortgage deed was validly attested.
It was held by the Supreme Court that as the object of attestation is to protect executant from being required to execute a document by the other party thereto by force, fraud or undue influence, a party to the transaction cannot attest it. It must, however, be borne in mind that the law requires that the testimony of the parties to the document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party to the transaction from attesting a document which is required by law to be attested.
Although, a person interested in the transaction and he is not a party to the deed may attest the document. In this case, the money lender was a person who was very much interested in the transaction of mortgage, but he was not a party to a deed. It was observed by the Supreme Court that a distinction has to be drawn between a person who is a party to the deed and a person who though not a party to the deed, is a party to the transaction, and the latter is competent to the deed.
For the purpose of attesting, the signature put by the witness should essentially be ‘animus attestandi, that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person has put his signature on the document for some other purpose, e.g., to clarify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. ‘Animus attestandi’ must be there for a valid attestation.
EFFECT OF INVALID ATTESTATION
If a document is not validly attested, as required by the section, it is ineffective. For example, under Section 59 of the Act if the mortgage deed is not duly attested, it cannot be enforced in a Court and it will also cut out to operate as a charge.
Author: APURVA .,
3rd Year, Fairfield Institute of Management and Technology, GGSIPU