DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

Vth SEMESTER – RESEARCH PAPERS

SUBJECT: LAW OF EVIDENCE

RESEARCH TOPIC: ATTESTATION AND REGISTRATION OF

DOCUMENTS AND THEIR RELEVANCY – ISSUES AND
CHALLENGES

SUBMITTED TO: PROF. DR. NANDINI C.P

FACULTY OF LAW OF EVIDENCE, DSNLU

SUBMITTED BY: S. VISESH GOPAL, 2015111. (DSNLU)

 ACKNOWLEDGEMENT

I am honoured to present the research paper on ‘Attestation and

Registration of Documents and Their Relevancy – Issues and Challenges’ to our
honorary in corporate law professor ‘Prof. Dr. Nandini C.P’ Mam. I thank your
support and convenience through the preparation of this research paper.

Sincerely,
S. Visesh Gopal.
2015111.

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 DECLARATION

Respected Sir,

This research paper is true to its origin where no material is plagiarised.

This research has been made through referred articles from quoted sources, Then
analysed with an interpretation of self own thoughts and ideologies.

Thanking You,

Sincerely,
S. Visesh Gopal.
2015111.

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 ABBREVATIONS

ADLS Activities of Daily Living

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CHAPTERISATION

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ABSTRACT

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I. INTRODUCTION1

The Registration Act, 1908, is one of the oldest legislations enacted during the pre-
independence period, which is in force in almost all parts of the country without altering
substantially for more than the last 100 years. The Registration Act, 1908 is having the object
of proper recording and registration of documents, which gives them more authenticity.
Registration means recording the contents of a document with a Registering Officer and
preserving copies of original documents. Documents are registered for conservation of
evidence, assurance of title, publicity of documents, and fraud prevention. The transfer of
immovable property is a significant cause of litigation. The dispute often arises because the
form by which the title is transferred was not registered/ not sufficiently stamped. Hence, the
Registration Act and Transfer of Property Act deal with how the title in the property can be
transferred. An essential aspect of the execution of a document is the attestation of the
document. Similarly, section 17 of the Registration Act provides the list of documents that
require compulsory registration.

The Transfer of Property Act, 1882, in Section 3 defines the term “attested,” in relation to an
instrument, means and shall always be deemed 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.2

II. LITERATURE REVIEW

Research Source:
The following research method was accompanied by ‘Doctrinal Research’. The research has
followed articles and literatures as mentioned in Chapter. IX

1 S. Visesh Gopal, 2015111. Student Fraternity at DSNLU.

2 Section 3 of the Transfer of Property Act, 1882, Act no. 4 of 1882.

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Font & Size:
This research articles uses font title ‘Times New Roman’ with size ‘12’ for the body and ‘13’
for subjective headings and ‘14’ for chapter title.
Citation title font ‘Times New Roman’ and size ‘9’.

Footnotes:
The footnotes across the research paper follows the ‘bluebook’ citation methodology.
Bluebook is a reference used in various citations across legal systems in various countries
including Harvard Law Review Association.

Literature Review:

Research Question:

1. What is the relevancy of Attestation and Registration?

Research Findings:

The researcher tries to elaborate the said definitions of Registration and Attestation under
Section 17 of Registration Act, 1908 and Section 3 of Transfer of Property Act, 1882. The
research paper also enlightens the relevancy and admissibility as a piece of evidence in the
context of Indian Law through Indian Evidence Act, 1872.

III. ATTESTATION

In section 3 of the Transfer of Property Act 1882, the term "attestation" is described
and the purpose of introducing this provision was to ensure that the executant made the
transfer of his or her own free will. There is no necessity in Indian law for witnesses to read
the entire document being testified, hence witnesses are not need to go through the paperwork
and inquire each and every typical fact of the transfer. The witnesses can be summoned to
court to prove that when they proved their mark to demonstrate that the transfer was a
legitimate transfer, but there is no need to summon both witnesses or all witnesses in a case; at
least one person can be brought to court as a witness to indicate the legality of the transfer.

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This attestation provision was not initially included in the way it is now. Initially, there was a
distinction in this clause for attestation under the 1865 Act 3. The section about personal
acknowledgement was missing, therefore it was inserted through an amendment. As a result,
the presence of witnesses was eliminated. The attestation is divided into two sections. The
first is when the attesting witnesses can be physically present, and there should have been at
least two witnesses who saw the executant sign the transfer paper. The second section deals
with situations in which witnesses were not physically present at the moment of the
document's execution. The attestation can still be legitimate in this case if the executant
personally acknowledges the signature to the witnesses. The author of this article will reflect
on the court's understanding of the subject of attestation, as well as the question of an illiterate
or disabled person's capacity to be witnesses or certify a document in a legal manner.

3.1 SIGNIFICANCE OF ATTESTATION IN INDIAN LAW

Attestation is a legal notion that originates in English law. However, in India, the meaning and
extent of this term varied from what existed under English law at the time. The attesting
witness must be physically present at the moment the executor signs the instrument, according
to English law. On two grounds, the term under Section 3 of the Transfer of Property Act
differs from that in English law. To begin with, the attester does not have to be physically
present when the executor signs the paperwork.

The second distinction is that Indian law does not need the attester to examine and witness the
document's execution. Both witnesses must be present at the time of execution and must
observe the signature themselves, according to English law. This requirement has been
abolished by Indian law. This was demonstrated in the case of Shamu Patter v. Abdul Kadir
Ravuthan And Ors4, where the issue was whether the attesters had to be personally present
and witness the document's execution. The court cited the decisions of Girindra Nath
Mukerjee v. Bejoy Gopal Mukerjee and Ramji v. Bai Parvati5, concluding that to be a
legitimate attesting witness, the attester must be physically there and witness the execution.
Because the court declined to accept the notion that the term attestation must have the same
meaning as it does in the Indian Succession Act, the court arrived at this conclusion.

Only in the case of Nepra v. Sajer Pramanik & Anr6 did the court overturn the Shamu
decision, citing the amendment act 27 of 1926, which included the words "attestation by a
person who has received an acknowledgement of the executants' execution" to the definition
of "attestation" under section 3 of the transfer of property legislation. The goal of attestation
was first thought to be to guarantee that a person could witness that the deed was willingly
signed, but it was subsequently established in the case of Gomathi v. Krishna7 that the true

3 Succession Act, 1865 – Initially meant to be Chapter I in the Civil Code was later revised to be an Act by itself.
4 1908 18 MLJ 219
5 1899 ILR 26 Cal 246
6 AIR 1927 Cal 763
7 AIR 1945 Mad 33

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goal was to guarantee that there was no fraud and that the execution was carried out when the
individual could have provided legal authorization.

Furthermore, Indian jurisprudence has evolved to a degree to read in requirements that must
be met in order for a person to be a qualified attester. The usual rule used to be that a party to
a document could not be the attester.” When a court discriminated between an interested party
and a party to a document, it came to the conclusion that either an interested party or a person
interested can attest. Over time, this norm evolved, and the modern standard is that the attester
must be able to enter into a contract.

Aside from what has been established in Indian law, the use of technology for attestation is a
contentious issue throughout the international stage. To provide a legitimate attestation, video
cameras and virtual signatures are used. In Indian courts, it has been determined that the
attester must place his or her signature or mark to the document, and that simply seeing the
execution on camera is insufficient. Nevertheless, if the document is authenticated by affixing
a mark or signing with a virtual signature, the criterion is met; however, as the court has not
addressed this issue, a definitive declaration cannot be made.

If the Indian courts carefully follow other countries' rulings on this issue, they will depend
heavily on Justice Underhill's recent decision in R v. HMRC8, in which he stated that
attestation requires the attesting mark or signature to be part of the original document itself,
and thus video conferencing and virtual signatures are insufficient.

In Australia, technology has a mixed impact on the legal system. The court has acknowledged
the value of video conferencing by permitting it to be used in attestation instances in which
indigenous tribes utilise it to overcome physical and geographical hurdles. Despite the fact
that the court has approved this strategy, the ADLS 9 is sceptical of it and has warned that
using technology such as video conferencing to overcome geographical obstacles might have
downsides.

The court remarked on the use of video conferencing for attestation in Charanjit Kaur Nagi
v. Government of NCT Delhi10, saying that it is open for an appropriate system to be built
with the assistance of technology by introducing video conferences, positive identification,
and attesting of signature or mark. In this case, the court rejected attestation through video
conference and ordered that the document be attested in the presence of a consultation by the
spouse who was in the United States. As a result, they delegated the task to legislators in the
future, while focusing on the necessity for technology to be integrated to ensure efficiency.

The fact that video conferencing does not always present the entire scene is also a source of
worry. It's possible that only a portion of the picture is visible, such as the attester's face, but
8 [2016] EWCA Civ 174
9 Activities of Daily Living
10 I (2008) DMC 45

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it's unclear if someone is threatening the witness or the executor. On the other hand, the
personal acknowledgement clause might be argued to enable the use of technology as a
substitute for physical presence as a prerequisite for attestation and the need of witnessing the
executor sign the document.

In the Charanjit case11, it was also contended that because technology had not evolved to
such an extent at the time of enactment, the drafters could not have meant video conferencing
to be included. As a result, both parties can make arguments, and it is up to the courts to
balance the criteria and reach a decision.

3.2 RELEVANCY OF ATTESTATION

The Indian courts have long sought to be more inclusive, not only in terms of gender, but also
in terms of persons who are physically disabled or illiterate. In a nation like India, where the
majority of the population is uneducated and suffers from illiteracy to a great extent, the court
and lawmakers must interpret and construct legislation in such a way that each and every
individual can apply and adhere to it, as our constitution requires. As a result of this
conclusion, the court has given section 3 of the Transfer of Property Act a variety of
interpretations in order to make it more comprehensive and generally applicable. The general
norm has established that there are no disqualifications for a particularly challenged
individual to attest to a document as a result of several cases. This reading implies that
anybody can testify, however the jurisprudence created by cases and the interpretation of the
courts says otherwise. The interpretation and cases have established a minimum threshold that
must be met before a person may properly certify a document.

The individual who supplied the testimony to the document in the matter of Sundar Lal v D
D C Sitapur12 was blind. The court ruled that the blind individual could not have certified the
paper unless the executor gave him or her personal acknowledgment. This demonstrates that
the present transfer of property statute is written in such a way that a person's disability does
not hinder them from serving as a legitimate attestation to the document.

A document can be attested to by even pardanashin women. However, this was not the case
from the start. There were several cases that clarified the position of pardanashin women's
attestation. A pardanashin lady was allowed to offer a valid attestation to the document in the
instance of Padarath Halwai vs Pandit Ram Nain Upadhia13. The executor could be seen
through the curtain, and the executor's voice, which was that of a pardanashin woman, could
be recognised. As a result, when attestation was delivered, it was deemed to be a legitimate
attestation in accordance with section 3 of the Transfer of Property Act.

11 I 2008 DMC 45
12 2015 ALL HC 177 - Sundar Lal v. D.D.C. Sitapur & Others
13 (1915) 17 BOMLR 617

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The testator in the Lala Kundan Lal vs Parshadi And Ors 14 was a pardanashin woman who
was seen by her husband and the attestation was done via the curtain. She pulled her hand
from under the curtain and drew her thumb mark out. This was a legal execution, and the
attestation was legitimate on this basis.

In the instance of Rai Ganga Pershad Singh vs Ishri Pershad Singh15, the mother signed the
paperwork behind the curtain, and her son then presented the paperwork to the witness for
attestation. Because the acknowledgement was not made by the executor herself, the court
ruled that the attestation was invalid.

These three examples paint a clear image of a pardanashin lady acting as an executor and
attester for the execution of a document. The viewpoint may be summarised as follows: if the
person executing the document is a pardanashin woman, the attester must see the woman sign
the paper. It is permissible if the attester recognises the woman by looking through something
or hearing her voice, but there must be recognition to ensure that there is no fraud.

If the attester is a pardanashin lady, the executor must recognise her and then see her affix
mark, even if this requires looking through a barrier; nonetheless, the barrier must be such
that the person's identity can be seen. When the executor personally acknowledges that the
execution was carried out with free choice, even a blind person can attest. The only need is
that the blind person be able to recognise that the person offering the acknowledgement is
indeed the executor.

The cardinal principle that governs the attestation is that “animo attestandi,” the
settled rule position to this effect of attestation was clear by the dictum of the Hon’ble
Supreme Court of India in M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons,16 where
it was held that it is essential that the witness should have put his signature “animo
attestandi,” that is, for the purpose of attesting that he has seen the executant sign or-has
received from him a personal acknowledgment of his signature. If a person puts his signature
on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a
registering officer, he is not an attesting witness.17

In the case of Iswar Das Lal v. Sohan Lal,18 the Hon’ble Supreme Court of India, held
that the mode of proof of documents required to be attested is contained in sections 68 to 71of
the Evidence Act. Under section 68, if the execution of a document required to be attested is
14 79 Ind Cas 960
15 1918 20 BOMLR 587
16 AIR 1969 SC 1147, followed in S.R. Srinivasa v. S. Padmavathamma, (2010) 5 SCC 274.
17 Ibid para 5.
18 AIR 2000 SC 426.

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to be proved, it will be necessary to call an attesting witness, if alive and subject to the
process of Court and is capable of giving evidence. But in case the document is registered
then except in the case of a will, it is not necessary to call an attesting witness, unless the
execution has been specifically denied by the person by whom it purports to have been
executed. This is clear from section 68 of the Evidence Act.19

The Indian Evidence Act, 1872, Section 68, prescribes that, if a document is required
by law to be attested, it shall not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving evidence. Further proviso clarifies
that, it shall not be necessary to call an attesting witness in proof of the execution of any
document, not being a will, which has been registered in accordance with the provisions of
the Indian Registration Act, 1908, unless its execution by the person by whom it purports to
have been executed is specifically denied.20

IV. REGISTRATION

The definition of the term “Registration” according to the Black’s Law Dictionary is,
“recording or inserting in an official register.”21 According to the Explanation I provided to
the Section 3 of the Transfer of Property Act, 1882, any transaction relating to immovable
property is required by law to be and has been effected by a registered instrument, any person
acquiring such property or any part of, or share or interest in, such property shall be deemed
to have notice of such instrument as from the date of registration. Further, Section 17 of the
Registration Act, 1908, provides an enumerated list of documents that requires compulsorily
registration and Section 18 provides for documents of which registration is optional. The list
so enumerated thereof is an exhaustive one.

Compulsory Registrable Documents (Section 17):

a Instruments pertaining to the gift of Immovable property;
b Other non-testamentary instruments which purport or operate to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or interest,

19 Ibid para 14.

20 Section 68 of the Indian Evidence Act, 1872.
21 Black’s Law Dictionary, 4th Ed., p.1449.

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 whether vested or contingent, of the value of Rs. 100/- and upwards, to or in
immovable property;
c Non-testamentary instruments which acknowledge the receipt or payment of any
consideration on account of the creation, declaration, assignment, limitation or
extinction of any such right, title or interest;
d Leases of immovable property from year to year, or for any term exceeding one year,
or reserving a yearly rent; and
e Non-testamentary instruments transferring or assigning any decree or order of a Court
or any award when such decree or order or award purports or operates to create,
declare, assign, limit or extinguish, whether in present or in future, any right, title or
interest, whether vested or contingent, of the value of Rs. 100/- and upwards, to or in
immovable property.

Further, the Section 17 also provides an enumerated list of transactions that are
exempted which requires instruments in nature of non-testamentary which purport or operate
to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or
interest, whether vested or contingent, of the value of Rs. 100/- and upwards, to or in
immovable property; and which acknowledge the receipt or payment of any consideration on
account of the creation, declaration, assignment, limitation or extinction of any such right,
title or interest.

Exemption under Section 17 is applicable to the following:

i any composition deed; or
ii any instrument relating to shares in a joint stock Company, notwithstanding that the
assets of such Company consist in whole or in part of immovable property; or
iii any debenture issued by any such Company and not creating, declaring, assigning,
limiting or extinguishing any right, title or interest, to or in immovable property except
in so far as it entitles the holder to the security afforded by a registered instrument
whereby the Company has mortgaged, conveyed or otherwise transferred the whole or
part of its immovable property or any interest therein to trustees upon trust for the
benefit of the holders of such debentures; or
iv any endorsement upon or transfer of any debenture issued by any such Company;

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 v any decree or order of a Court except a decree or order expressed to be made on a
compromise and comprising immovable property other than that which is the subject-
matter of the suit or proceeding; or
vi any grant of immovable property by Government; or
vii any instrument of partition made by a Revenue-Officer.

V. SURAJ LAMP CASE: PURPOSES AND ADVANTAGES OF

REGISTRATION

The Registration Act, 1908, was enacted with the intention of providing
orderliness, discipline and public notice in regard to transactions relating to immovable
property and protection from fraud and forgery of documents of transfer. This is achieved
by requiring compulsory registration of certain types of documents and providing for
consequences of non-registration.22

Section 17 of the Registration Act clearly provides that any document (other than
testamentary instruments) which purports or operates to create, declare, assign, limit or
extinguish whether in present or in future “any right, title or interest” whether vested or
contingent of the value of Rs. 100 and upwards to or in immovable property. 23

Section 4924 of the said Act provides that no document required by Section 17 to be
registered shall, affect any immovable property comprised therein or received as evidence
of any transaction affected such property, unless it has been registered. Registration of a
document gives notice to the world that such a document has been executed. Registration
provides safety and security to transactions relating to immovable property, even if the
document is lost or destroyed. It gives publicity and public exposure to documents thereby
preventing forgeries and frauds in regard to transactions and execution of documents.
Registration provides information to people who may deal with a property, as to the nature
and extent of the rights which persons may have, affecting that property. In other words, it
enables people to find out whether any particular property with which they are concerned,

22 Suraj Lamp & Industries Pvt. Ltd. (2) vs State Of Haryana & Anr., (2012) 1 SCC 656.
23 Ibid, para 10.
24 Section 49 of the Registration Act, 1908: Effect of non-registration of documents required to be registered.

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has been subjected to any legal obligation or liability and who is or are the person/s
presently having right, title, and interest in the property. It gives solemnity of form and
perpetuate documents which are of legal importance or relevance by recording them,
where people may see the record and enquire and ascertain what the particulars are and as
far as land is concerned what obligations exist with regard to them. It ensures that every
person dealing with immovable property can rely with confidence upon the statements
contained in the registers (maintained under the said Act) as a full and complete account
of all transactions by which the title to the property may be affected and secure
extracts/copies duly certified.25 Registration of documents makes the process of
verification and certification of title easier and simpler. It reduces disputes and litigations
to a large extent.

VI. RELEVANCY OF UNREGISTERED AND INSUFFICIENT

EVIDENTIARY DOCUMENTS

The magna carta of civil law, the Code of Civil Procedure, 1908, in Order XIII Rule
326, provides that, the Court may at any stage of the suit reject any document which it
considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

Admissibility of unregistered documents which requires compulsory registration:

The Hon’ble Apex Court in K.B. Shah & Sons Pvt. Ltd. v. Development Consultant,27
elaborated the principles laid down in the various decisions of the Hon’ble Apex Court and
the High Courts, pertaining to the admissibility of the registered documents, and if follows
as:-

i A document required to be registered is not admissible into evidence under Section 49

of the Registration Act.
ii Such unregistered document can however be used as an evidence of collateral purpose
as provided in the Proviso toSection 49 of the Registration Act.

25 Suraj Lamp & Industries Pvt. Ltd. (1) vs State Of Haryana & Anr., (2009) 7 SCC 363.
26 The Code of Civil Procedure, 1908, Order XIII Rule 3: Rejection of irrelevant or inadmissible documents.
27 (2008) 8 SCC 564.

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 iii A collateral transaction must be independent of, or divisible from, the transaction to
effect which the law required registration.
iv A collateral transaction must be a transaction not itself required to be effected by a
registered document, that is, a transaction creating, etc. any right, title or interest in
immoveable property of the value of one hundred rupees and upwards.
v If a document is inadmissible in evidence for want of registration, none of its terms can
be admitted in evidence and that to use a document for the purpose of proving an
important clause would not be using it as a collateral purpose.

Evidentiary relevance of insufficiently stamped documents:

Black’s Law Dictionary defines the term “Impound” as, “to take into the custody of
the law or of a court.” Thus, a court will sometimes impound a suspicious document produced
at a trial.28 It is now well settled that there is no prohibition under Section 49 of the
Registration Act, to receive an unregistered document in evidence for collateral purpose. But
the document so tendered should be duly stamped or should comply with the requirements of
Section 35 of the Stamp Act, 1899, 29 if not stamped, as a document cannot be received in
evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid
under Section 35 of the Stamp Act, 1899.30

28 Black’s Law Dictionary, 4th Ed., p.889.

29 Section 35 of the Indian Stamps Act, 1899: Instruments not duly stamped inadmissible in evidence, etc. No
instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of
parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public
officer, unless such instrument is duly stamped :
Provided that—
(a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or,
in the case of any instrument insufficiently stamped, of the amount required to make up such duty, together with a
penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five
rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt
and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in
evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and
any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in proceeding in a Criminal
Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has
been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by
section 32 or any other provision of this Act.
30 T. Bhaskar Rao vs T. Gabriel And Ors., AIR 1981 AP 175.

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 The Hon’ble High Court of Andhra Pradesh, in the case of Thippareddy Obulamma v.
Balu Narasimhulu,31 stated the following propositions of law with regard to unstamped or
under-stamped or unregistered documents:-

i An unstamped or insufficiently stamped document is inadmissible in evidence.

ii As per the proviso to Section 49 of the Indian Registration Act, an unregistered
document affecting immovable property and required to be registered can be received
as evidence either in cases referred to therein or to prove any collateral transaction.
iii If an unstamped or insufficiently stamped document coupled with the infirmity of
being unregistered can be received as evidence for a collateral purpose, provided, the
first defect under the Indian Stamp Act, 1899, is corrected. In other words, an
unstamped or insufficiently stamped document after duly impounded as prescribed
under Section 33 of the Indian Stamp Act, 1899 can be relied in evidence for collateral
purpose.
Narinder Singh Rao v. Avm Mahinder Singh Rao 32 stated Narender's father's will, which
stated that his wife might inherit the land. The widow's will, which was signed by a single
witness but not recorded, left the whole estate to one of her nine children. The affected
children filed a lawsuit against their mother, claiming that the will was unlawful and that they
had a right to their father's property as well. Since the will was unlawful because it was not
confirmed by two witnesses, the Supreme Court ruled that the children had the right to inherit
the property.

It was decided in Naginbhai P. Desai v. Taraben A Sheth33that an agreement for sale could
not be regarded a conveyance under the Indian Registration Act, 1908.

The claim that an agreement for sale was required to be registered under Clause (b) of
Subsection (1) of Section 17 of the Registration Act has no merit.

In H.P. Puttaswamy v Thimmamma & Ors34, the Supreme Court considered whether the
presence of the purchaser of an immovable property is necessary before the competent body

31 AIR 2003 AP 525.

32 2010 (3) RCR (Civil) 508 - Mahinder Singh Rao v. Narender Singh Rao and Ors
33 AIR 2003 Bom 192
34 2010 SC CA 3975

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under the Act when registration of a deed in transfer is carried out in compliance with the Act.
The issue in this case centred on a 4,500-square-foot property in the village of Hittanahalli
Koppalu in the Malavallu Taluk of Karnataka (the "Suit Property").

It was discovered that this property had been the subject of two separate selling deeds. The
appellant filed a lawsuit to be recognised as the rightful owner of the suit property. The
plaintiff's deed had brought the appellant into possession of the suit, first as a renter and then
as a purchaser. The Supreme Court cited section 32 of the act, stating that, aside from the
exclusions established by Sections 31,88, and 89 of the Act, if a document is being registered,
regardless of whether it is mandatory or voluntary, it would require either:

(i) a person who is signing the document or claiming rights under it, or

(ii) by such a person's representative or assignee, or

(iii) by the agent or representative of such a person who has a legally approved power of
attorney to appear before the relevant authority under the Act. From a cursory reading of
Section 32, it is clear that both parties to a sale transaction are not required to appear before
the relevant authorities under the Act. And, since the conveyance deed did not fit within the
exclusions set forth in section 32, the Supreme Court dismissed the case without interfering
with the High Court's decision, clarifying that Section 32 does not need the presence of both
parties to a sale deed when it is submitted for registration to the appropriate authorities under
the Act.

The Supreme Court held in Thulasidhara v Narayanappa35 that a written document referring
to a family settlement or family arrangement without registration can be used as corroborative
evidence to explain the arrangement formed and the parties' actions.

The question in Hansia v. Bakhtawarmal36 was how far a non-registered document that was
required to be registered under Section 17 of this statute might be utilised in the procedure.
The paper in question was a non-registered mortgage deed. The aim of the mortgage deed is

35 2019 6 SCC 409

36 AIR 1958 Raj 102

Page No. 19
to prove the mortgage, hence a claim for recovery based on an unregistered mortgage deed is
guaranteed to fail. According to Section 49 of the Registration Act, an unregistered mortgage
deed can only be utilised for collateral reasons.

The plaintiff can only utilise the unregistered deed to show the nature of possession in a claim
for possession, not in a claim for redemption. As a result, Section 49 of the Act cannot be used
to get any advantage in a redemption litigation. Collateral purpose refers to a purpose other
than generating, transferring, declaring, extinguishing, or restricting a right to immovable
property; papers that are required to be registered under the Registration Act of 1908 can be
used for collateral purpose.

Tek Bahadur Bhujil v. Debi Singh Bhujil 37 was a landmark case in the civil rights movement.
The court decided that if a document relating to a family arrangement is written with the
intention of utilising it as proof, it must be registered since it is a deed of title describing the
numerous rights, claims, or possessions that each member of the family would acquire and
enjoy in the future.
VII. ISSUES AND CHALLENGES

The Indian provision of transfer of property pertaining to attestation is based on

British law, although it now has a broader applicability in India thanks to revisions approved
by the Indian legislature. The necessity that an executor be present at the moment of the
document's signature has been removed by the change. As a result, it may be used in more
places. Attestation does not imply just signing a document to certify it; rather, a legitimate
attestation necessitates the desire to attest. Animo attestandi is a term for this. The
understanding is that an individual can make a valid attestation if he/she meant to be a witness
to the fact of the document's execution at the time of affixing the mark and was aware that the
document was executed without undue influence or pressure on the executant. The witness
cannot be deemed to have made a valid attestation unless he or she has the mental capability
or intention to confirm these claims. Apart from broadening the scope of the amendment, it
also allows persons with impairments to provide sufficient attestation. A personal
acknowledgement of the execution by the executor to the witness is now allowed for a valid

37 AIR 1966 SC 292

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attestation of the document by a person with a visual handicap, with the only need being that
the witness recognise that the acknowledgement is delivered by the executor itself. Aside
from that, video conferencing and other technology developments for attestation are now
being discussed. The courts in the United Kingdom have declined to include such technology,
although the British concept differs from ours, as evidenced by our law's change.
Furthermore, Australia has a favourable opinion of the application and has praised it in
circumstances where the location is at a remote region. As a result, when India decides to
implement the reforms, the debate will be able to evaluate the benefits and drawbacks of such
a strategy.

CHAPTER VIII
CONCLUSION

To avoid a property dispute or any other dispute all documents must be registered and
attested. Otherwise, the essential papers must be properly registered and attested according to
the processes outlined in their said Acts, or they would become invalid. It also ensures that the
judicial system is properly administrated within a set time range.

CHAPTER IX
REFERENCES AND BIBLIOGRAPHY

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