Transfer of Property Act, 1882

Section 3
Attestation
Actionable Claim
ATTESTATION
 Attestation
Attestation has been defined in Section 3 of Transfer of Property
Act as under:—”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’s
sign the instrument in the presence and by the direction of 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 that one of such witnesses shall
have been present at the same time, and no particular form of
attestation shall be necessary.
To ‘attest’ means to sign and witness any fact of
execution by the executant. It means that a person has
signed the document by way of testimony of the fact
that he saw it executed.
 Essentials of Attestation
Following are the essential requisites of a valid
attestation-
1.There must be two or more attesting witness.
2.Each witness must see—(a) the executant sign or affix
his mark (thumb impression) to the instrument; (b) or,
see some other person sign the instrument in the
presence, and by the direction, of the executant; (c) or,
receive from the executant a personal acknowledgment
of his signature or mark or of the signature of such other
person.
3.Each witness must sign the instrument in the presence
of executant.
Cont.>>
4. Each witness must sign only after the executant is
complete.
5. It is not necessary that more than one of such witnesses
should be present at the same time.
6. No particular form of attestation is necessary.
7. Attestor Should be sui generis, i.e., capable of entering into
contract.
8. The witness should have put his signature animo
attestandi (intention to attest).
9. A person who is a party to transfer cannot attest it as a
witness. The object of attestation is to protect the
executant form being required to execute a document by
other party thereto by force, fraud, or undue influence, a
party to the transaction cannot laid down in Kumar Harish
Chandra v Banshidhar Mahanty, AIR 1965 SC 1738
 Effect of invalid attestation

• Effect of invalid attestation it makes the deed

of transfer of property involved, and therefore
no property invalid and therefore no property
passes under it. The document cannot be
enforced in the court of law.
ACTIONABLE CLAIM
 Actionable Claim
Section 3 of the Transfer of Property Act, 1882 defines
actionable claim as, “it means a claim Actionable Claim to any
debt, another then a debt secured by mortgage of immovable
property or by hypothecation or pledge of movable property
or to any beneficial interest in movable property, not in the
possession, either actual or constructive, of the claimant,
which the civil courts recognise as affording grounds for relief,
whether such debt or beneficial interest be existent, accruing,
conditional or contingent.”
Thus according to Section 3, actionable claim means—
•a claim to unsecured debt, or
•a claim to beneficial interest in movable property not in
possession of the claimant.
Debt: A debt is an obligation to pay a liquidated sum of
money. The amount of money must be certain,
otherwise it is not debt. For an actionable claim, a debt
must be unsecured debt, for secured debts are
excluded from the definition of actionable claim, e.g., A
owes Rs. 10.00 to B. B’s claim is an actionable claim.

Debts secured by a mortgage of immovable property or

by a pledge of movable property are excluded from the
definition of actionable claim, because they are
secured debt.
Claim to beneficial interest not in possession of
the claimant: Actionable claim includes a claim to
any beneficial interest in movable property, not in
the possession of the claimant, interest or the right
of possession of claimant is recognised by the
court. (However a claim for demands, i.e., for an
unascertained. sum of money or a claim for mesne
profits does not come within the definition if
actionable claim), e.g., A agrees to sell to B bales of
cotton deliverable on a future day B has a beneficial
interest in the goods and it is an actionable claim.
 Some instance of actionable claim:

a) Claim for arrears of rent.

b) Claim for the money due under insurance policy
(Shamdas v. Savitri, AIR 1937 Sind 24)
c) Claim for the return of earnest money.
d) A share in partnership.
e) maintenance allowance payable in future.
f) fixed deposit in a bank.
g) right to the proceeds of business.
h) Hire-Purchase agreement.
 Instances of claims which are not actionable:

a) A copyright,
b) Claim for mesne profits,
c) Secured debt,
d) Right to get damages,
e) A debt which has passed into a decree.
 Transfer of Actionable Claims
Actionable claims are transferable properties, thus it can be
transferred by way of sale, mortgage, gift or exchange. Section
130 of Transfer of Property Act provides the mode of effecting
the transfer of actionable claims, and its effect. It provides—
(1) The transfer of an actionable claim whether with or
without consideration shall be effected only by the execution
of an instrument m writing signed by the transferor or his duty
unauthorized agent, shall be complete and effectual upon the
execution of such instruments, and thereupon all the rights
and remedies of the transferor, whether by way of damages
or otherwise, shall rest in the transferee, whether such notice
of the transfer as is hereinafter provided be given or not:
Provided that every dealing with debt or other actionable
claim by the debtor or other person from or against whom
the transferors would, but for such instrument of transfer
as aforesaid, have been entitled to recover or enforce
such debt or other actionable claim, shall (save where the
debtor or other person is a party to the transfer or has
received express notice thereof as hereinafter provided)
be valid as against such transfer.

(2) The transferee of an actionable claim may, upon the

execution of such instrument of transfer as aforesaid, sue
or institute proceedings for the same in his own name
without obtaining the transferor’s consent to such suit or
proceeding and without making him a party thereto.”
Section 131 of the Act provides that the notice should be
in writing signed. It provides:
“Every notice of transfer of an actionable claim shall be in
writing signed by the transferor or his agent duly
authorised in this behalf, or in case the transferor refuses
to sign, by the transferee or his agent, and shall state the
name and address of the transferee.”
Section 132 of the Act provides the liability of transferee of
actionable claim. It reads, “The transferee of an actionable claim
shall take it subject to all the liabilities and equities to which the
transferor was subject in respect thereof at the date of the
transfer”. ,
E.g., A transfers to C a debt due to him by B, A being then
indebted to B. C sues B for the debt due by B to A. In such suit it
is entitled to set off the debt due by A to him; although C was
unaware of it at the date of such transfer.

Section 136 is important as it provides for disqualification of a

Judge, a legal practitioner or any officer connected with Courts of
Justice from purchasing any actionable claim, which is warranted
under Section 6 (h) (iii).