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Attestation - Meaning
Sec 3 of the Transfer of Property (TPA) Act. 1882, defines attestion as: “attested in relation to an instrument, means and shall be deemed always to have been attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witness shall have been present at the same time, and no particular form of attestation shall be necessary.”
Execution of a legal instrument, regardless of the legal framework, necessitates a certain form and formalities to authenticate the document's legitimacy and ensure that it has been executed voluntarily and with full understanding, devoid of any coercion, fraud, or duress. Attestation embodies this requirement.
Thus, mortgages and gifts must not only be documented in writing but also attested, whereas documents facilitating sales, exchanges, and leases do not require attestation.
To attest signifies signing and witnessing the execution of the document by the person executing it. In the context of the Transfer of Property Act, "attesting" indicates that a person has signed the document as a testimony to witnessing the execution, whereby "execute" entails writing and signing the instrument.
Requisites of a Valid Attestation
There must always be two or more attesting witnesses. Each witness must observe the following:
The executant signing or affixing their mark (thumb impression) to the instrument,
Another person signing the instrument in the presence, and by the direction, of the executant, or
The witness receiving a personal acknowledgment of the executant's signature/mark or of a person signing on behalf of the executant.
An attesting witness need not witness the actual execution of the deed; they can attest based on the acknowledgment of execution by the executant themselves. However, each witness must sign the instrument in the presence of the executant.
Furthermore, each witness must sign only after the execution is complete; otherwise, it will not be a valid attestation. A document could be attested on the same day when it was written.
All the attesting witnesses need not attest at the same time, and no particular form of attestation is necessary. Thus, the signature of an attesting witness need not appear in any particular place. Even if the witness signs the document against the signature of the executant, where the executant has executed the document, it is sufficient and adequate attestation of the document.
Case Laws
The following important points about attestation may also be noted:
The term "personal" (in the phrase "personal acknowledgment") indicates that the acknowledgment must come directly from the executant themselves, and not through intermediaries or agents.
Attestation does not bind the attestant. Merely attesting a deed does not prevent a person from denying anything except witnessing the execution of the deed. Attesting a document does not imply awareness of its contents, nor does it signify consent to the transaction. However, if an attesting witness was present at the transaction and attested the deed after being aware of its contents, they may be estopped from challenging the rights of the transferee (Bhagwat v Gorakh AIR 1934 Pat 93).
An attesting witness should be sui generis, i.e., capable of entering into a contract. Therefore, illiterate individuals and marksmen can serve as attesting witnesses, although it is not advisable to rely on such witnesses for attestation.
In the case of an executant who is a pardanashin lady, the attestation would be valid if the lady behind the curtain could see the attesting witness if she wished to (Gmdan FaI v Bofi Begam AIR 1939 PC 424).
Animo Attestandi: Mere presence of the signature is insufficient for attestation. It must be shown that the witness signed with the intention of certifying that they saw the executant sign the document. If a person puts their signature on a document for any other purpose (e.g., signifying approval to the transaction), they are not considered an attesting witness (Abdul Jabbar v Venkata Sastri AIR 1966 SC 1147).
In Girja Dutt v Gangotri Datt Singh (AIR 1955 SC 346), two persons who had identified the testator at the time of registration of the will and had appended their signatures at the foot of endorsement by the sub-registrar were not considered witnesses as their signatures were not put animo attestandi.
A person who is a party to the transfer cannot be an attesting witness, but a party interested in the transaction can be a competent witness.
Effect of Invalid Attestation
The effect of invalid attestation is that it makes the deed of transfer of property invalid, and therefore no property passes under it. Thus the document cannot be enforced in a court of law. If the deed is a mortgage, it can neither operate as a mortgage, nor as a charge under Sec. 100.
But though the deed may be ineffectual as a mortgage for want of proper attestation, still it will be admissible as evidence of a personal covenant to repay the debt [Krishna Kumar v Kayashta Pathshala AIR 1966 All 570].
Leading Case Laws
KUMAR HARISH CHANDRA SINGH DEO v BANSIDHAR MOHANTY (AIR 1965 SC 1738) (No provision of law prohibits a money-lender from attesting a deed that documents the transaction under which money was lent.) - In this case, the mortgagor and the mortgagee were the parties to the transaction, but the money lent to the mortgagor was provided by a third person, who happened to be one of the attesting witnesses. This third person, acting as a money-lender, sought to indirectly assist the mortgagee, who was his friend, through the mortgagor. The question arose whether the mortgage deed was validly attested.
It was determined that the purpose of attestation is to safeguard the executant from being coerced, deceived, or unduly influenced by the other party to the document. Therefore, a party to the transaction cannot act as an attesting witness. However, it should be noted that the law mandates the testimony of at least one attesting witness to prove the execution of the deed, even if the parties themselves testify. Consequently, a party to a transaction is prohibited from attesting a document required by law to be attested.
However, any other individual who is not a party to the deed may attest it, even if they have an interest in the transaction. In this instance, although the money lender was significantly interested in the mortgage transaction, he was not a party to the deed. The Supreme Court delineated between a person who is a 'party to the deed' and one who, though not a party, is a 'party to the transaction' (i.e., has an interest in the transaction), asserting that the latter is eligible to attest the deed.
Independence of Attesting Witnesses: It is not a prerequisite for attesting witnesses to be able to identify each other's signatures or even to know each other. Therefore, there is no basis for the requirement that witnesses should identify each other's signatures. Under English law, attesting witnesses must be present simultaneously at the time of execution and able to testify that the deed was voluntarily executed by the proper person. However, such a requirement is not mandatory under Indian law. Witnesses may arrive after the execution, receive a personal acknowledgment, and then attest. In English law, attestation based on personal acknowledgment is not considered valid.
PADARATH HALWAI v RAM NARAIN (AIR.1915 PC 21) [In the transfer of property by a pardanashin woman, where the attesting witnesses were unable to see her but could hear her voice, the attestation was deemed valid.] - In this case, the mortgagors were two pardanashin ladies who did not appear before the attesting witnesses, and thus their faces were not visible to the attesting witnesses.
The issue concerned the attestation by two witnesses when the document was executed by two pardanashin ladies, i.e., whether the document was properly attested by at least two witnesses as per Sec. 59 of the T.P. Act, 1882. The appellants contended that the mortgage, upon which the suit was based, had not been attested by at least two witnesses. As the amount secured by the mortgage exceeded one hundred rupees, it was argued that the mortgage was ineffective and could not be presented as evidence. It was further argued that the evidence presented to prove attestation was unreliable and did not establish that the two attesting witnesses had seen the mortgagors sign the mortgage.
The court observed that although the two attesting witnesses did not see the faces of the ladies, they were well acquainted with their voices. Their Lordships concluded that these witnesses did indeed identify the mortgagors at the time of the deed's execution. The mortgagors were brought from the inner apartments of the house to an ante-room to execute the deed. In the ante-room, the ladies sat on the floor, separated from the witnesses by a hanging screen. The attesting witnesses recognized the ladies by their voices and claimed to have seen each lady execute the deed, albeit unable to see their faces due to the screen. Subsequently, the witnesses signed the document as attesting witnesses. An attempt was made to prove that a screen, through which nothing could be seen, was present in the doorway.
Their Lordships accepted the evidence of the attesting witnesses as true and concluded that the mortgage deed, dated June 25, 1892, was properly attested by at least two witnesses as per Sec. 59 of the T.P. Act. It was undisputed that the mortgage deed was indeed executed by the two pardanashin ladies, Musammat Niamat Bibi and Musammat Kamar-un-nisa Bibi, the mortgagors.
In a similar case (Kundan Gal v Mutharafi Begum AIR 1936 PC 207), a lady sat behind a curtain while the scribe, along with her family members including her husband and nephew, sat outside. The scribe read out the deed to her, and she accepted it by putting her thumb impression on the document in sight of the witnesses. Thereupon, her husband and another person signed as attesting witnesses, and the attestation was deemed valid.
However, in a different scenario (Ganga Prashad v Ishari Prashad 22 CWN 697 PC) where the son of a pardanashin lady takes the document inside the purdah, gets it executed, and brings it outside for attestation without the acknowledgment from the lady, the document is not considered validly executed.
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