Presented by

Anandakrishnan S
 Attest means
• Executant- a person who has a certain right over
a property and makes a document…..to make
changes to his right over that property.
• Execute- the act of an executant writing and
signing on an instrument.
• Attest- as per TP Act,- that a person has signed
the document by way of testimony of the fact
that he saw it executed.
• The party who sees the document executed is a
‘witness’
 example
• Ramesh is the owner of a land in TVM.
• He wishes to mortgage the land in favour of Suresh.
• Ramesh wants Sunanda to be a witness to this event.
• While Ramesh executes the mortgage deed in favour of
Suresh…, Sunanda being a witness to the event ‘attests’ over
the mortgage deed.
• Ramesh is the executant
• Sunanda is the witness
• Sunanda has attested the document. The attestation is a
testimony that Ramesh executed the document in her
presence and out of his free will. This prevents coercion.
 Meaning of Attestation
s.3 of TP Act
• in relation to an instrument, means and shall be deemed
always to have meant 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
acknowledgement 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 witnesses shall
have been present at the same time, and no particular form
of attestation shall be necessary
 Essentials of a valid attestation
1) Definition under section is confined only to non-
testamentary instrument. It will not apply to will etc.
2) Minimum two attesting witnesses are needed. Maximum is
not mentioned.
3) Three modes of attestation are recognized e.g.-
a. Each sees the executant signing or fixing mark, or
b. Each sees some other person signing in the presence,
and by the direction of the executant, or
c. Each has received from the executant the personal
acknowledgement of executant sign, of executants
mark, sign of one who signed for the executant in his
presence and by his direction.
4) Each witness signs the instrument in presence of executant.
5) Presence of both or all attesting witnesses one and at the
same time is not essential.
6) No particular form of attestation is prescribed.
 case
• In Kundan Lal v. Musharaf Begum, the executant was a
pardanashin lady and was sitting behind a thin curtain when
the attestors signed. The P.C. held that the attestation was
valid as the executant, if so minded, could have seen the
witnesses, even if she did not actually see them, through the
curtain. It is tantamount to say that an attesting witness
should sign his name in the presence of the executant.
 English and Indian law
• The definition of attestation in s.3 T.P. Act makes a two—fold
departure from the English law. According to the English law
1.) both witnesses should be present at the same time and
2.) they should actually see the execution of the instrument.

• In India it is not necessary that both the attestors should be

present at the same time or see the actual execution of the
document
 Attesting witness
• It is essential that the witness should have put his signature
animus attestandi (sign with an intention to attest), that is,
for the purpose of attesting that he has seen the executant
sign or has received from him a personal acknowledgment of
his sign.
• If a person has put his signature on the document for some
other purpose, eg., to certify that he is a scribe or an
identifier or a registering officer, he is not an attesting
witness.
• There must be ‘animus attestandi’ for a valid attestation.
• To attest is to bear witness to a fact.
 Registrar as attesting witness
• A registrar can be a competent witness provided he has
animus to attest.
• The sub-registrar or registering officer who registers the
document therefore may act as attesting witness, but it must
be shown that
i. He has intention to attest witness; and
ii. Has either personally seen the executant signing the
document, or the executant accepts the execution
before him.
 Case law
• In Abdul Jabbar v. Venkat Shastri & Sons, the issue was, whether
the attestation of a security bond by the sub-registrar was a valid
attestation. In this case, the identification of parties, registration of
bond and attestation, etc were all done by the sub-registrar. The
Mad. h.c. held it to be a bad attestation and it was upheld by the
S.C.
• The view of the court was that a valid attestation requires two
witnesses and signature, etc. of the executor as required under the
Transfer of Property Act and animus attestandi. The Sub Registrar
puts the signature in course of his duties as laid down under
Registration Act. Therefore, a scribe, identifier, or registering officer
as such may not be competent to attest unless of course contrary is
proved by the facts and circumstances of any particular case
 Mode of attestation
• There is no particular form of attestation, and
a mere signature is sufficient.
• The definition of attestation specifically
mentions that ‘no particular form of
attestation shall be necessary’. However the
signing should be visible from the document.
• The main purpose of attestation is to testify to
the voluntary execution of the document by
the transferor.
 Case Law
• In Shant Ram v. Kamala Prasad, on a transfer deed prepared
by a lawyer, before the transferor could sign some person
from the side of transferor and transferee, who call
themselves attesting witnesses signed on the document.
While presenting for registration without the sign of the
transferor, the Registrar pointed out that discrepancy. Then
transferor signed in the presence of Registrar, but none of the
said witnesses were present.
• Held- the deed was not validly attested, as, the said witnesses
has already signed the document before it was executed.
• Attestation means testifying the voluntary execution of the
transfer deed, and therefore attestation can never be prior to
the execution of the document, and must always be
subsequent to it.
 Legal effect of attestation
• Mere attestation of a document does not show that the
attestor had notice of its contents (Banga Chandra v.
Jagat Kishore 44 cal. 186 p.c.). It estops him from
denying the factum of execution.
• There may be circumstances attending the attestation,
such as, that the contents were read over to the
attestator, which may estop him from challenging the
right of the transferee or denying the authority of the
executant to execute the document.
 Party interested in the transaction
• A party who is interested in the transaction can be a
competent witness. For instance, where the money is
advanced by a third party but not by the mortgagee who also
attested the deed, the attestation is proper.
• In Kumar Harish Chandra Singh Das v. Bansidhar Mohanty, the
S.C. held that no provision of law debars a money-lender from
attesting a deed which evidences the transaction where
under the money was lent.
• The court drew a distinction btw the 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. While the former is incompetent to
be an attesting witness, the later can validly attest the deed.
It was held that the deed was validly attested.