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.

Page No. 2
 DECLARATION

Respected Mam,

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.

Page No. 3
 LIST OF ABBREVATIONS

ADLS Activities of Daily Living

AIR All India Reporter
Ed. Edition
Pg. Page
S. Section
UK United Kingdom
& And

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 CONTENTS

1. Introduction......................................................................................................7
2. Literature Review.............................................................................................7
3. Attestation........................................................................................................9
3.1 Significance Of Attestation In Indian Law..................................................09
3.2 Relevancy Of Attestation.............................................................................11
3.3 Circumstances Where To Attestation Witnesses Are Deceased Or Not
Found
3.4 Attesting Witness Being Blind Or Visually Impaired...................................14

3.5 Attesting Witness Deceased During The Pendency Of Appeal....................14

4. Registration....................................................................................................13
5. Suraj Lamp Case: Purposes And Advantages Of Registration......................15
6. Relevancy Of Unregistered And Insufficient Evidential Documents............17
7. Issues And Challenges...................................................................................21
8. Conclusion.....................................................................................................22
9. References & Bibliography............................................................................22

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 ABSTRACT

Paperwork, especially when dealing with legal problems, may be

tiresome. However, sweating the minor stuff is necessary to avoid future
problems. A single blunder, such as a typographical error or a delay in registering
a document, might result in a lengthy legal battle. Even erroneous or partial
attestation might result in a lengthy legal fight. Hence this paper provides light on
the subject of registration and attestation in the context of Indian Law.

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 I. INTRODUCTION1

The Registration Act of 1908 is one of the country's oldest pre-independence

statutes, and it has been in effect in virtually all areas of the country for more than a
century without change. The purpose of the Registration Act of 1908 is to ensure that
papers are properly recorded and registered, ensuring their legitimacy. The term
"registration" refers to the process of documenting the contents of a document with a
Registering Officer and keeping copies of the original document. Documents are
registered for evidence preservation, title assurance, document publicity, and fraud
prevention. The transfer of immovable property is a common source of dispute. Disputes
frequently occur because the form on which the title is transferred was not properly
registered/stamped. As a result, the Registration Act and the Transfer of Property Act deal
with how property titles can be transferred. The attestation of a document is an important
part of the execution process. Similarly, section 17 of the Registration Act has a list of
papers that must be registered.

The term "attested" in relation to an instrument is defined in Section 3 of the Transfer of

Property Act of 1882 as "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
‘ex parte’. However, it is not essential for more than one of these witnesses to be present at
the same moment, and no specific form of attestation is required.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.

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:

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

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

Page No. 7
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:

Why a document must be registered? - Law Times Journal by Vedanta Yadav provides
insights towards legislative aspect and also his personnel views on the process of
Registration.

Registration of documents under the Registration Act, 1908: A submitted article in

iPleaders by Sanjana Tripathy explains the concept of registration and advantages arising
out of it.

Analysing the Law of Attestation under Transfer of Property Act, 1882: Article
written by Amay published in Law Sikho provides intention and reasoning of inclusion of
attestation.

Research Question:

1. What is the relevancy of Attestation and Registration?

2. Can unregistered or non attested documents have any identity or relevancy of their own?

3. Can a Visually Impaired person be a witness to a transaction?

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

This provision for attestation was not originally provided in the form it is today.
Initially, this provision made a difference between attestation under the 1865 Act. Because
the part on personal acknowledgement was lacking, it was added as an amendment. As a
result, witnesses were no longer required. There are two components to the attestation. The
first is when the attesting witnesses can be physically present, and at least two witnesses
who witnessed the executant sign the transfer instrument should have been there. The

Page No. 8
second section addresses situations in which witnesses were not present at the time the
document was signed. If the executant personally acknowledges the signature to the
witnesses, the attestation can still be valid. The author of this article will discuss the court's
interpretation of attestation, as well as the matter of an illiterate or handicapped person's
ability to be witnesses or legally certify a document.

3.1 Significance Of Attestation In Indian Law

Attestation is a legal concept that may be traced back to English law. However, the
definition and scope of this phrase in India differed from what was available under English
law at the time. According to English law, the attesting witness must be physically present
when the executor signs the document. The word used in Section 3 of the Transfer of
Property Act varies from that used in English law for two reasons. For starters, the attester
does not need to be 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 Ors3, 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 Parvati4, 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 & Anr5 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.
Krishna6 that the true 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 law has progressed to the point where it now includes standards that
must be satisfied in order for someone to be certified as an attester. When a court
differentiated between an interested party and a party to a document, it found that either an
3 1908 18 MLJ 219
4 1899 ILR 26 Cal 246
5 AIR 1927 Cal 763
6 AIR 1945 Mad 33

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interested party or a person interested may attest. This standard has changed over time, and
the current requirement is that the attester be able to engage into a contract.

Aside from what is established in Indian law, the use of technology for attestation is a
divisive subject on the world arena. Video cameras and virtual signatures are utilised to
offer a valid attestation. In Indian courts, it has been decided that the attesting witness
must sign or stamp the document, and that just watching the execution on video is
inadequate. The requirement is satisfied, however, if the document is authenticated by
affixing a mark or signing with a virtual signature; nonetheless, a definite statement cannot
be made because the court has not addressed this matter.

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. HMRC7, 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 8 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 Delhi9, 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 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.

7 [2016] EWCA Civ 174

8 Activities of Daily Living
9 I (2008) DMC 45

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In the Charanjit case10, 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

In the context of Indian law, It is necessary for any document to be produced as evidence
must be attested, stamped and executed as the court draws presumption as per Section 89 11
as inference to 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.
10 I 2008 DMC 45
11 IEA, 1872.
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 Ors14 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 Singh 15, 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 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
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.

Page No. 12
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

3.3 Circumstances Where To Attestation Witnesses Are Deceased Or Not Found

It may possible be a circumstance where in the witness while execution of document may
be available but not during the legal conflict since due to death or any circumstances.
Since it is necessary as per Section 68 of Indian Evidence Act, 1872 for a witness to be
present, it might sometimes not be fulfilled. In such cases, It is necessary for the party to
prove its execution. However, Under S.32 & 33, 69 of IEA,1872 provides that where
witnesses are dead or not found, the court can deem the attestation to be relevant.

V. Kalyanaswamy (D) v/s. L. Bakthavatsalam (D)21

Hon’ble Supreme Court revisited upon the legal principles wherein it requires one of two
attesting witness necessarily be required during court proceedings. Two witness have been
deceased in the present case and while briefing the case, the court stated that in such
scenarios subsequently the parties may provide as specified in Section 69 22 may prove the
handwriting and signature of the testator or executant was hand written as proof of
execution.

K. Laxmanan v/s. Thekkayil Padmini and Others23

Supreme Court concluding the case has stated that it is incumbent upon the propounder of
the will prove the attestation of the atleast one witness that it was in his writing and the
signature of the executant was by his own as per Section 69.24

19 Ibid para 14.

20 Section 68 of the Indian Evidence Act, 1872.
21 2020 SCC OnLine SC 584
22 IEA,1872
23 (2009) 1 SCC 354
24 Ibid 19.

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3.4 Attesting Witness Being Blind Or Visually Impaired

As per Section 6325, The legislation requires that a person has to see the testator signing
the document. As per literal interpretation, It can however be said that a blind and impaired
person cannot be an attesting witness to a document. The word see has been stressed to
draw inferences on the legislation and to fact, can it be challenged was a question of law in
the following case.

Laxmi Kant & Others vs Smt. Ganga Devi26

The attesting witness Dau Dayal, who was blind and witness to a will of Panna Lal. It was
challenged that the will is void as one amongst the attesting witness was blind. Allahabad
High Court while looking into Section 6327 and examined the statement of the witness as
to how the validity of a blind person will suffice the legislative intent of the word ‘see’ and
stated that being read over the will and signing as witness will not satisfy the interpretation
of the word see and concluded that attesting witness necessarily should see the testatator
sign the will or the will is not proved as per the contemplate of S.6328 of the act.

3.5 Attesting Witness Deceased During The Pendency Of Appeal.

Incases, Where in the attesting witness has deceased or not found and required during
court procedures in an appellant court, The court is satisfied to an extent if the attesting
witness has already submitted his statement before the court is considered a relevant fact
and not necessarily be present during appeals of such cases as per S. 33.29

IV. REGISTRATION

The definition of the term “Registration” according to the Black’s Law Dictionary
is, “recording or inserting in an official register.”30 According to Explanation I to Section 3
of the Transfer of Property Act, 1882, any transaction involving immovable property is
required by law to be and has been effected by a registered instrument, and any person
acquiring such property, or any part of it, or any share or interest in it, shall be deemed to
have notice of such instrument as of the date of registration. Furthermore, Section 17 of
the Registration Act of 1908 establishes a list of papers that are required to be registered,
while Section 18 establishes a list of documents for which registration is optional. The list
that has been provided is complete.

25 Indian Succession Act, 1925

26 2018 5 AWC 5141 ALL
27 Supra 24.
28 Ibid 26.
29 IEA, 1872.
30 Black’s Law Dictionary, 4th Ed., p.1449.

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4.1 Registered Documents as Evidence

The court presumes public documents that are certified by competent authority as relevant
part of evidence under Section 79 of IEA,1872. Registered documents are duly made entry
in public records by a public servant that can be used as relevant fact under S. 35 31. This
helps increase the genuinity of the document. Courts under circumstances of existing
relevant documents can no longer accept any other evidence (or document as a proof) as
primary evidence except the document itself under S. 91. 32 Also, No longer it is valid that
an oral agreement is existing if at all there exists a registered document or statement under
S. 9233

Achutanand v. Deputy Director of Consolidation, Varanasi34

Allahabad High Court in this case has observed that S.79 raises presumption about the
genuineness of the certified document is substantially in the form and purports to be
executed in the manner as directed by the law on that behalf.

V. SURAJ LAMP CASE: PURPOSES AND ADVANTAGES OF

REGISTRATION

The Registration Act of 1908 was created with the goal of bringing order,
discipline, and public notice to transactions involving immovable property, as well as
protecting against fraud and fabrication of transfer papers. This is accomplished by
enforcing mandatory registration of certain types of papers and establishing penalties
for non-registration.35

Section 17 of the Registration Act expressly states that any document (other than
testamentary instruments) that purports or operates to create, declare, assign, limit, or
extinguish “any right, title, or interest” to or in immovable property of the value of Rs.
100 and upwards, whether vested or contingent, shall be registered. 36

No document required by Section 17 37 to be registered shall impact any immovable

property contained therein or be received as proof of any transaction affecting such
property unless it has been registered, according to Section 49 of the same Act. The act
of registering a document notifies the rest of the world that it has been completed.
Even if the document is lost or destroyed, registration ensures the protection and
31 IEA,1872.
32 Ibid 25.
33 Ibid.
34 1975 All LJ 579
35 Suraj Lamp & Industries Pvt. Ltd. (2) vs State Of Haryana & Anr., (2012) 1 SCC 656.
36 Ibid, para 10.
37 Section 49 of the Registration Act, 1908: Effect of non-registration of documents required to be registered.

Page No. 15
security of immovable property transactions. It offers papers visibility and public
exposure, which helps to avoid forgeries and frauds in document transactions and
execution. According to the Indian Registration Act, not all papers are required to be
registered. There is a fundamental difference between required and voluntary
registration. Documents relating to the transfer of moveable property, as well as wills,
are exempt from registration under Section 18 of the Act. In addition, a letter of
authority or power of attorney for moveable property does not need to be registered. It
guarantees that anybody dealing with immovable property may trust the statements
included in the registers (kept under the aforementioned Act) as a full and
comprehensive record of all transactions that may affect the property's title, as well as
secure extracts/copies that have been legally certified. The process of verifying and
certifying title is made easier and simpler by registering papers. It significantly
decreases the number of conflicts and lawsuits.38

VI. RELEVANCY OF UNREGISTERED AND INSUFFICIENT

EVIDENTIAL DOCUMENTS

The magna carta of civil law, the Code of Civil Procedure, 1908, in Order XIII
Rule 3 , provides that, the Court may at any stage of the suit reject any document which it
39

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,40 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.
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.

38 Suraj Lamp & Industries Pvt. Ltd. (1) vs State Of Haryana & Anr., (2009) 7 SCC 363.
39 The Code of Civil Procedure, 1908, Order XIII Rule 3: Rejection of irrelevant or inadmissible documents.
40 (2008) 8 SCC 564.

Page No. 16
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.41 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, 42 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, 1899.43

The Hon’ble High Court of Andhra Pradesh, in the case of Thippareddy

Obulamma v. Balu Narasimhulu,44 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,
41 Black’s Law Dictionary, 4th Ed., p.889.
42 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.
43 T. Bhaskar Rao vs T. Gabriel And Ors., AIR 1981 AP 175.
44 AIR 2003 AP 525.

Page No. 17
 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 45 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 Sheth46that 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 & Ors 47, the Supreme Court considered whether the
presence of the purchaser of an immovable property is necessary before the competent
body 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

45 2010 (3) RCR (Civil) 508 - Mahinder Singh Rao v. Narender Singh Rao and Ors
46 AIR 2003 Bom 192
47 2010 SC CA 3975

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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 Narayanappa48 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. Bakhtawarmal49 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 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 50 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

48 2019 6 SCC 409

49 AIR 1958 Raj 102
50 AIR 1966 SC 292

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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 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.

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.

Various courts around the country have often ruled that property transfers are unlawful
simply because the paperwork representing the transfer was not registered or attested.
Instruments claiming to transfer or assign any interest in immovable property must be
registered and duly attested accordingly to prove the evidentiary value for
specific circumstances, according to Section 17 of the Indian Registration Act. As a result,
documents relating to immovable property, such as sales or gift deeds, must be registered
in order for the transfer to be legitimate.

On the other hand, believe that registering a document is preferable since it assures a more
transparent transaction. Even if you lose or destroy the document, the registered records
will verify the sale or transfer. Even a paper indicating that a PoA has been revoked must
be registered in order to prevent its misuse following the revocation. Furthermore, the ease
with which you may access records allows you to learn more about the individual who has
the title and rights to the property, as well as whether there is a current liability or lawsuit,
before you decide to purchase it.

Because the documents are public, they aid in the prevention of forgeries and fraud in
transactions, particularly in the areas of income tax, wealth tax, and stamp duty avoidance.

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Furthermore, the cost of registering a document is not prohibitively expensive. Though
costs vary by state, on average, registering a document costs between Rs 1,000 and Rs
2,000, minus stamp duty if applicable.

According to the Indian Registration Act, not all documents must be registered. The
contrast between mandatory and voluntary registration is apparent. Documents relating to
the transfer of moveable property, as well as wills, are not needed to be registered under
Section 18 of the Act. Furthermore, a letter of authority or power of attorney for moveable
property does not need to be registered. This is because doing so confers greater legal
sanctity on the document.

IX. REFERENCES AND BIBLIOGRAPHY

Webliography

1. Research Gate.
2. Hein Online.
3. Indian Kanoon.
4. Manupatra.

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