2.

Attestation ( Sec 3 )

Importance of Attestation;

The Transfer of Property Act, 1882, hereinafter referred to as TPA, lays down the law
to regulate the transfer of property between living persons.
[1] The TPA regulates transfer of property by providing for certain kinds of transfers-
sale, mortgage, lease, exchange, gift and also provides for attestation of the
instruments, by which these transfers take place. To attest is to bear witness to a fact.
[2] By providing for attestation, the TPA seeks to ensure that witness is borne to the
fact that the transfer instrument is signed without any element of “force, fraud or
undue influence”.
[3] The TPA while making a provision for attestation, makes attestation mandatory
only in case of certain kinds of transfers-gifts and mortgages, to the exclusion of all
other kinds of transfers.

To attest is to bear witness to a fact.

[4] To attest an instrument is to bear witness to the fact of verity of that instrument.
[5] Thus, under the TPA, which provides for various kinds of transfers, to attest a
transfer instrument, is to bear witness to the fact of variety of the transfer instrument,
which is being executed by the transferor in favor of the transferee. Section 3 of the
TPA, defines attestation in its verb form — “attested”.

Section 3, the part of which defines “attested”, reads as follows —

“Attested”, in relation to an instrument, means and shall be always deemed to have

meant, attested by two or more witnesses each of whom has seen the executant sign or
affix his mark on the instrument, or has seen some other person sign the instrument in
his presence and by direction of the executant, or has received from the executant
personal acknowledgement of his signature or mark, or of signature of such other
persons, 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 witnesses shall be
present at the same time, and no particular form of attestation shall be necessary.
Section 3 in laying down the meaning of attestation, enumerates three conditions for a
valid attestation under the TPA
-Firstly, there must be at least two attesting witnesses.
-Secondly, each of the attesting witnesses must see the transferor (or executant) sign
the instrument or affix his mark or see some other person sign the instrument or affix
his mark under the direction of the transferor, otherwise each of the witnesses must at
least receive a personal acknowledgement, from the transferor, that the signature or
the mark is his.
-Thirdly, the attesting witness must attest with an intention of bearing witness to the
instrument being signed and with no other intention. Not following the above three
conditions would make the attestation invalid and an instrument invalidly attested,
cannot be executed in a Court of Law.
Since, attestation is done in order to bear witness to the fact of verity of the transfer
instrument, which is being executed by the transferor in favor of the transferee, it
naturally follows that the transferor, the transferee, or any other person, who is party
to the instrument, cannot be an attesting witness to the transfer instrument.

8.In Harish Chandra v. Bansidhar Mohanty, (2004)A mortgage instrument was

executed by the appellant in favor of the second respondent, but it was the first
respondent who had advanced the money and had also attested the mortgage
instrument.

On the first respondent filing a suit to enforce the mortgage, it was contended that the
first respondent was a party to the instrument and hence, the attestation is invalid. The
Supreme Court, while holding that attestation by a party to the instrument would
make the attestation invalid, ruled that in the present case, the first respondent is not a
party to the instrument but is a party to the transaction and being so, can attest the
mortgage instrument.

Thus, for a valid attestation, it is necessary that any person, other than a person who
is party to the instrument, is the attesting witness.

Object :
The object of attestation in the TPA, was held out by the Supreme Court, again in,
Harish Chandra v. Bansidhar Mohanty.
In arriving at its decision that a party to a transaction, as opposed to a party to an
instrument can be an attesting witness, the Supreme Court, stated the object of
providing for attestation in the TPA is to — “protect the executant from being
required to execute a document by the other party thereto by force, fraud, or undue
influence”.
Thus, the purpose, with which attestation, has been provided for in the TPA, is to
ensure that the transfer of property takes place voluntarily i.e. without any element-
whether fraud, fraud or undue element — vitiating the free consent of the transferor.
As such, providing for attestation, the TPA seeks to ensure that witness is borne to the
fact of verity of the transfer instrument in the sense of it being signed by the transferor
voluntarily.

Scope :

The TPA, while it provides for transfers such as — sale, mortgage, lease, exchange,
gift, makes attestation mandatory only for certain kinds of transfers by mortgage and
gift. Section 59[13] of the TPA lays down that for every transfer by mortgage to be
effected, where the principle amount is Rs. 100/- or upwards, and where the mortgage
is not by way of deposit of title deeds, attestation is mandatory. In case of mortgages,
where the principle amount is less than Rs. 100/- a mortgage can be effected either, by
registration and attestation, or mere delivery of property. Hence, for mortgages where
the principle amount is less than Rs. 100/-, attestation is not mandatory. Similarly,
Section 123[14] of the TPA, lays down that, for transfer by gift involving immovable
property, attestation is mandatory for the transfer of gift to be effected, a transfer by
gift involving movable property can be effected either by registration and attestation
or by mere delivery.
Thus, the TPA makes attestation a mandatory requirement, only in case of transfer by
mortgage and gift; that too, mortgages involving a principal sum of Rs. 100/- or
upwards and gifts involving immobile property, respectively. Under the TPA, where
attestation is made mandatory for certain kinds of transfers by mortgage and gift,
attestation is not mandatory at all for other kind of transfers, whatever principle sum
they may involve or whatever property they may effect a transfer of.

Who may be a competent witness; - Anyone apart from the parties to the transfer of
property

mode of attestation; -

attestation by a Pardanasheen woman

9. Kumar Harish Chandra Singh Deo vs Bansidhar Mohanty, AIR 1965 SC 1738:
(1966) 1 SCR 153

No provision of law debars a money lender from attesting a deed which evidences the
transaction where under the money was lent.
3rd person lended the money to the mortgagee but the mortgage deed was between
the mortgagor & mortgagee. Held 3rd person cud attest the deed even though it was
he who lended the money. SC observed 3rd person is not a party to the deed but a
party to the transaction.

FACTS: The first respondent lent money to the appellant and obtained a mortgage
deed from him in the name of the second respondent. The first respondent was
himself one of the two attesting witnesses. On the failure of the appellant to repay the
amount, the first respondent instituted a suit and the suit was decrees by the High
Court. In his appeal to the Supreme Court, the appellant contended that : (i) the
mortgage deed was not validly attested and (ii) the first respondent was not entitled to
sue.
HELD : A person who has lent money, for securing the payment of which a mortgage
deed was executed by the mortgagor, but who was not a party to the deed, could be an
attestor.

ISSUES: Who could be an attestator?

HELD AND REASONING: There is a distinction between a person who is -a party to
a deed and a person who, though not a party to the deed is a party to the transaction
and the latter is not incompetent to attest the deed. The object of attestation is to
protect the executant from being required to execute a document by the other party
thereto by force, fraud or undue influence. Though, neither the definition of "attested"
in s. 3 nor s. 59 of the Transfer of Property Act debars a party to a mortgage deed
from attesting it, since the testimony of parties to a document cannot dispense with
the necessity of examining at least one attesting witness to prove the execu- tion of
the deed, it must be inferred that a party is debarred from attesting a document which
is required by law to be attested. Where, however, a person is not a party to the deed,
there is no prohibition in law to the proof, of the execution of the document, by that
person.

10.M.L. Abdul Jabbar Sahib v H. Venkata Sastri, AIR 1969 SC 1147: AIR 1969 SC
1147

This case highlights the importance of valid attestation in matters of transfer of

property, it is essential that the witness put his signature animo attestandi i.e. with
intention of attesting.
ISSUES: (1) is the security bond attested by two witnesses: (2) if not, is it invalid? (3)
does the decree in c.s. no. 56 of 1953 direct sale of the properties for the discharge of
a charge thereon. and (4) are the respondents entitled to rateable distribution of the
assets held by court as to the first question.
HELD AND REASONING: The Indian Registration Act. 1908 lays down a detailed
procedure for registration of documents. The registering officer is under a duty to
enquire whether the document is executed by the person by whom it purports to have
been executed and to satisfy himself as to the identity of the executant, Section 34(3).
He can register the document if he is satisfied about the identity of the person
executing the document and' if that personal admits execution, [Section 25(1)]. The
signatures of the executant and of every person examined with reference to the
document are endorsed on the document, (Section 58). The registering officer is
required to affix the date and his signature to the endorsements (Section 59). Prima
facie, the registering officer puts his signature on the document in discharge of his
statutory duty Under Section 59 and not for the purpose of attesting it or certifying
that he has received from the executant a personal acknowledgment of his signature.
The evidence does not show that the registering officer D.W. Kitto put his signature
on the document with the intention of attesting it: Nor is it proved that he signed the
document in the presence of the executant. In these circumstances he cannot be
regarded as an attesting witness. Where immoveable property of one person is by act
of parties or operation of law made security for the payment of money to another, and
the transaction does not amount to a mortgage, the latter person is said to have a
charge on the property: and all the provisions herein before contained which, apply to
a simple mortgage shall, so far as may be, apply to such charge.

Nothing in this section applies to the charge of a trustee on the trust property for
expenses properly incurred in the execution of his trust, and, save as otherwise
expressly provided by any law for the time being in force, no charge shall be enforced
against any property in the hands of a person to whom such property has been
transferred for consideration and without notice of the charge. Before Section 100 was
amended by Act 20 of 1929 it was well settled that the section did not prescribe any
particular mode of creating a charge. The amendment substituted the words 'all the
provisions hereinbefore contained which apply to a simple mortgage shall, so far as
may be, apply to such charge,' for the words 'all the provisions hereinbefore contained
as to a mortgagor shall, so far as may be, apply to the owner of such property, and the
provisions of Sections 81 and 82 shall, so far as may be, apply to the person having
such charge.' The object of the amendment was to make it clear that the rights and
liabilities of the parties in case of a charge shall, so far as may be, the same as the
rights and liabilities of the parties to a simple mortgage. The amendment was not
intended to prescribe any particular mode for the creation of a charge. We find that
the Nagpur High Court came to a similar conclusion in Baburao v. Narayan, I.L.R.
[1949] Nag. 802 It follows that the security bond was not required to be attested by
witnesses. It was duly registered and was valid and operative
11.Padarath Halwai v Ram Narain, AIR 1915, PC 21

[Transfer of property by pardanasheen woman, when the attesting witnesses could not
see her but cud hear her voice, the attestation was held valid.]
Mortgagors were two pardanasheen women who did not appear before the attesting
witnesses hence their face wasn't seen by the attesting witnesses. The issue was
whether the document was duly attested by atleast two witnesses within the meaning
of S59A of the TPA,1882.
FACTS: The mortgagors were two purdahnashin ladies who did not appear before the
attesting witnesses, and consequently their faces were not seen by the witnesses.
These two attesting witnesses were, however, well acquainted with the voices of the
ladies, and their Lordships are satisfied that these two attesting witnesses did identify
the mortgagors at the time when the deed was executed. The mortgagors were, on the
occasion of the execution of the mortgage-deed, brought from the zenana apartments
of the house in which they were to an ante-room to execute the deed. In the ante-room
the ladies seated themselves on the floor, and between them and these two attesting
witnesses there was a chick, which was not lined with cloth, hanging in the doorway.
These two attesting witnesses recognised the ladies by their voices, and they say that
they saw each lady execute the deed with her own hand, although owing to the chick
they were unable to see the face of either of the ladies. On the other side an attempt
was made to prove that a tat, through which nothing could be seen, was hanging in the
doorway. Their Lordships accept the evidence of these two attesting witnesses as true,
and hold it proved that the mortgage-deed of the 25th June 1892 was duly attested by
at least two witnesses within the meaning of Section 59 of the Transfer of Property
Act, 1882. It is not disputed that the mortgage-deed was in fact the deed of the two
purdahnashin ladies, Musammat Niamat Bibi and Musammat Kamar-un-Nisa Bibi,
the mortgagors.

ISSUES: The only other question to be considered in these appeals is the contention
on behalf of the appellants that the plaintiffs in the suit have, by reason of certain
events, which will now be referred to, lost their right to enforce against Baragaon
payment of a considerable part of the amount which they have claimed.
HELD AND REASONING: On behalf of the appellants it has been contended before
this Board and in the Courts below that Baragaon was relieved of all liability in
respect of the debt due under the mortgage of the 8th August 1887, by reason of the
failure of Sarju Parshad and Ramanand to insist on their priority under that mortgage,
it being alleged in support of the contention that Sarju Parshad and Ramanand had
agreed to waive their priority as mortgagees of Arghupur, or had waived it, of which,
if it were material, there is no proof, and that they were guilty of laches in not
insisting on that priority. Their Lordships have found it difficult to follow the
argument in support of the contention, as the appellants had no interest in Baragaon
until they purchased Baragaon on the 20th April 1904, and what they then purchased
was the interest of the mortgagors in that village.
It is true that had Sarju Parshad and Ramanand appealed against the decree of the
Subordinate Judge, they could have had their interests as first mortgagees under the
mortgage of 8th August 1887 protected, and would, on the sale of Arghupur, have
obtained payment of the amount then due under that mortgage. Sarju Parshad and
Ramanand did not, by an appeal, insist on their right as prior mortgagees, but the fact
that they did not insist on having the amount due under the mortgage of the 8th
August 1887 satisfied in priority to the claim of the second mortgagees does not
disentitle the plaintiffs to recover the full amount of their claim in this suit, and does
not entitle the appellants to relief. No other fact which would entitle the appellants to
relief has been shown.
----------------------------------

kumar harishchandra singh das vs bansidhar mohanty

The first respondent lent money to the appellant and

obtained a mortgage deed from him in the name of the second
respondent. The first respondent was himself one of the two
attesting witnesses. On the failure of the appellant to
repay the amount, the first respondent instituted a suit and
the suit was decrees by the High Court.
In his appeal to the Supreme Court, the appellant contended
that : (i) the mortgage deed was not validly attested and
(ii) the first respondent was not entitled to sue.
HELD : (i) A person who has lent money, for securing the
payment of which a mortgage deed was executed by the
mortgagor, but who was not a party to the deed, could be an
attestor. [156C, G-H]
There is a distinction between a person who is -a party to a
deed and a person who, though not a party to the deed is a
party to the transaction and the latter is not incompetent
to attest the deed. The object of attestation is to protect
the executant from being required to execute a document by
the other party thereto by force, fraud or undue influence.
Though, neither the definition of "attested" in s. 3 nor s.
59 of the Transfer of Property Act debars a party to a
mortgage deed from attesting it, since the testimony of
parties to a document cannot dispense with the necessity of
examining at least one attesting witness to prove the execu-
tion of the deed, it must be inferred that a party is
debarred from attesting a document which is required by law
to be attested. Where, however, a person is not a party to
the deed, there is no prohibition in law to the proof, of
the execution of the document, by that person. [155H; 156 A-
B]
(ii) When a transaction is a mortgage, the actual lender of
the money is entitled to sue upon it. [157E]
A person who provides consideration for a transaction is
entitled to maintain a suit concerning the transaction. In
Gur Narayan and Ors,. v. Sheo Lal Singh and Ors, . (46
I.A.1) the Privy Council only recognised the right of a
benamidar also to sue, but did not hold that the benamidar
alone could sue and not the beneficial owner. [157 D-F]