Attestation

Some unrelated stuff

• An owner has 3 basic rights in the
property:
a) Right of ownership, of having the title to
the property.
b) An exclusive right to possess and enjoy
the property
c) An exclusive right to alienate the property
in any manner that he likes
Imp: These rights are called interests in the
property
 Transfer of interest
• Where only some rights are transferred, it
would be a transfer of an interest in the
property
 3 basic formalities in Transfer of
Immovable Property
1. Transfer deed to be executed by the
transferor
2. Transfer deed to be properly attested
3. Transfer deed should be duly registered
 Section 3 of TPA
• ”attested”, 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
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
witnesses shall have been present at the same time, and
no particular form of attestation shall be necessary.
 Purpose of Attestation
• Verification of voluntary execution of the
transfer deed in case of doubts or express
denial by the transferor w.r.t transfer of
property
• Shamu Patter v. Abdul Kader PC
 Following are the essential
requisites of a valid attestation-
• There must be two or more attesting witnesses.
• Each witness must see—
(a) the executant sign or affix his mark (thumb
impression) to the instrument; or
(b) see some other person sign the instrument in
the presence, and by the direction, of the
executant; or
(c) receive from the executant a personal
acknowledgment of his signature or mark or of
the signature of such other person.
• Each witness must sign the instrument in the presence
of executant.

• Each witness must sign only after the execution is

complete.

• It is not necessary that more than one of such witnesses

should be present at the same time.

• No particular form of attestation is necessary.

• Attestor Should be capable of entering into
contract.

• The witness should have put his signature

animo attestandi (intention to attest).

• A person who is a party to transfer cannot

attest it as a witness.
 Kumar Harish Chandra v
Banshidhar Mohanty, AIR 1965 SC
• The object of attestation is to protect the
executant from being required to execute
a document by other party thereto by
force, fraud, or undue influence
• The court drew the distinction between a
person who is a party to the deed and a
person who is a party to the transaction
• While the former is incompetent to be an
attesting witness, the latter can validly
attest the deed
 Sant Ram v. Kamala Prasad AIR
1951 SC 477
• Attestation done first
• Then Execution in presence of Registrar
• It was held that the deed was not validly
attested as the time when 6 persons
attested the document it was not even
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"
 Attestation of document executed
by Pardanashin Woman
• The rules are slightly relaxed
• Witnesses may not be able to see the
woman
• In such cases, if the witnesses are well
versed with the voice of pardanashin
woman, see the deed being executed
through curtains and then attest it , it is
validly attested
Padarath Halwai v. Ram Narain AIR
1915 PC 21
• The mortgagors were 2 pardanashin
ladies who did not appear before the
attesting witnesses
• Their faces were not seen by the
witnesses
• The witnesses were well acquainted with
the voices of the ladies
• The two witnesses recognised them by
their voices and saw each of them execute
the deed with their own hand

• Then they put their signatures on the

document as attesting witnesses
• The Privy council held that deed was
validly attested
 M L Abdul Jabbar Sahib v. MV
Venkata Sastri AIR 1969 SC 1147
• A instituted a suit against B, claiming a
sum of Rs. 49,000 allegedly given on loan
to B on the strength of 2 promissory notes
• B obtained a leave to defend this suit on
condition that he executes a security bond
for Rs. 50,000
• B executed the bond, charging several of
his properties
• This bond was signed by one attesting
witness , and an advocate Y, who had
prepared and explained the document to
B.
• The bond was signed by Sub-registrar
• Three more persons O, P, Q had given B a
loan of certain amount, and B had failed to
repay them as well.
• These three persons had also gone to
court and had obtained simple money
decrees against B, which they wanted to
execute against the same properties that
were charged under the security bond in
favour of the registrar of the high court.
• The Claim of A was that he was a secured
creditor due to the security bond
• A claimed that out of the sale proceeds, he
should be paid first, and if some amount is
left over after satisfying the claim, it should
be distributed among O, P, and Q
• On the other hand, O,P, and Q claimed all
four have equal status as unsecured
creditors as the security bond was not
properly attested.
 What was the basis of
discrediting the security bond
• It was claimed that the security bond does
not create a charge as it was not validly
attested by two competent witness.
• It was attested by only one witness and
the rest of the persons, whose signatures
appeared on bond, had signed in different
capacities
 Issue before the court
• Whether the bond was validly attested or
not
 Observations of Court
• It is essential that that the witness should
have put their signatures animo attestandi-
that is for the purpose of attesting or
testifying that they had seen the executant
sign or had received from him a personal
acknowledgment of his signatures.
• The registering officer puts his signature
on the document in discharge of his
statutory duty and not for the purpose of
attesting it
• The two identifying witness had put their
signatures on the document to
authenticate the fact that they had
identified the executant and as it was not
shown that they had put their signatures
for the purpose of attesting the document ,
they could not be regarded as attesting
witness
 Final judgment of the court
• The document was attested by one
attesting witness only, it did not create a
charge and so A’s status was that of an
unsecured creditor, whose claim was at
par with the claim of the other simple
money decree holders.