Attestation

Synopsis:
1. Introduction
2. Meaning Of Attestation
3. Object Attestation
4. Who can Attest
5. Essentials of Valid Attestation
6. Distinction between English Law & Indian Law
7. Inception and Amendments
8. Effects of disabilities on the law regarding attestation
9. Conclusion

Introduction
The definition of attestation is given in section 3 of the Transfer of Property Act
1882. The intention behind including this provision was to ensure that the
transfer was done with free will of the executant. No legislation in India provides
the requirement of the witness to read the whole document being attested, thus
the witnesses need not have to go through the document and ask each and every
typical fact of the transfer. The witnesses can be called to the court to prove that
when they proved their mark to show that the transfer was a valid transfer, but
here there is no need to call either the two witnesses, or all the witnesses, at least
one person can be called to court as a witness to show the sanctity of the
transfer.

This provision for attestation was not originally drafted in the manner it is today.
Initially, under 1865 Act, there was a difference in this provision for attestation.
The part relating to personal acknowledgement was not present, and this part
was added through an amendment. Thus the presence of witnesses was disposed.
There are two parts to the attestation. First is where the attesting witnesses can
be physically present then there are at least two witnesses who should have seen
the executant sign the document of transfer. The second part is with respect to
situation when witnesses were not physically present at the time of execution of
the document. In such a situation, attestation can still be valid, if the executant
herself gives a personal acknowledgement of the signature to the witnesses.

MEANING OF ATTESTATION

Attestation is the act of witnessing the signing of a formal document and then also
signing it to verify that it was properly signed by those bound by its contents.
Attestation is a legal acknowledgement of the authenticity of a document and a
verification that proper processes were followed.

A creation of a legal instrument requires some form and formality as a proof of

authenticity of the same legal instrument or document in the eyes of law, that the
document has not been created by any force, fraud, cohesion or undue
influence.This constitutes the essence of attestation.The Transfer of Property Act
does not require attestation for every legal instrument but for some. Thus,legal
instruments or documents which constitute transactions of lease, sale or any kind
of exchange do not require attestation whereas gifts and mortgages require not
only legally written documents but also for them to be a valid transaction,
attestation is mandatory.

Section 3 of the Transfer of Property Act defines ‘Attestation’ in relation to a legal

instrument. It states that a valid attestation constitutes an execution of a legal
instrument by the executant or by any other person who has been directed by the
executant to personally acknowledge the attestator of the execution, with the
attestator signing or affixing his mark on the instrument in the presence of the
executant as a proof of his acknowledgement of the attestation.Thus, by this the
attestator becomes the ‘attesting witness’ to the act of execution of a legal
document or instrument.
Distinction between English Law & Indian Law

The English law mandates that the attestators i.e. the attesting witnesses should
be present at the time of the execution of the legal instrument/document in
order to testify that the particular deed was executed by the very same person
who claims to have executed it voluntarily. The English law does not recognize
personal acknowledgement given by the executant to the attestator as is the case
with the Indian law.

For instance Ram wanted to execute a mortgage deed in favour of Rahul and
Rohan was the attesting witness. Rohan received a personal acknowledgement
from Ram about the execution of a deed but Rohan did not physically see or hear
Ram execute the deed. This deed is validly attested as per the Indian law but is an
example of ‘invalid attestation’ according to English law.

Inception and Amendments

This concept of attestation stems fjrom the English law. But the meaning and
scope that has been attached to this concept differs in India, than what was there
originally under the English Law. The meaning of attestation according to the
English law is that the attesting witness has to be physically present at the time of
the signing of the document by the executor. The definition that has been used in
Section 3 of Transfer of Property Act is different than what is there in the English
law on two grounds. First it does not require the attester to be physically be
present at the time of the signing of the document by the executor.

The second difference is that the Indian law does not require the attester to
actually look and see the execution of the document. The English law both the
witnesses to be present at the time of execution and actually see the signing
themselves. The Indian law has done away with this requirement. This was
highlighted in the case of Shamu Patter where the question was exactly that
whether the attesters have to be physically present and actually see the execution
of the document. The court referred to the cases of Girindra Nath Mukerjee v.
Bejoy Gopal Mukerjee and Ramji v. Bai Parvati and concluded that the attester
has to be physically present and see the execution to be a valid attesting witness.
The court arrived at this reasoning because the court refused to accept the
argument that the word attestation has to be given the same meaning as it is
given in the Indian Succession Act.

It was only in the case of Nepra vs Sajer Pramanik & Anr that the court overruled
the Shamu case by applying the amendment act 27 of 1926, which added the
phrase “attestation by a person who has received an acknowledgment of the
execution by the executants” to be included as the meaning of the word
attestation mentioned under section 3 of transfer of property act. It was initially
understood that the object of attestation is to ensure that a person can testify
that the deed was voluntarily signed, but it was clarified later in the case
of Gomathi v Krishna that the actual object was that there was no fraud and the
execution was done when the person could have given a valid consent.

In addition, the Indian jurisprudence has developed to a certain extent to read in

qualifications that has to be fulfilled for a person to be able to be a valid attester.
Earlier the general rule was that a party to a document could not herself be the
attester”. This rule was developed when the court differentiated between an
interested person and party to a document, and concluded that an interested
party or a person interested can attest. This rule further developed over time and
the new standard is that the attester has to be a person who can enter into a
contract.

Apart from what has been established in the Indian jurisprudence, there is an
increased debate in the international circuit regarding the use of technology for
attestation. This essentially means the use of video cameras and virtual signatures
to give a valid attestation. It has been held in the Indian courts that it is necessary
for the attester to affix sign or mark on the document, thus merely having seen
the execution through video will not be enough. But if the document is attested
by affixing mark or sign by virtual signature, then the requirement would be
fulfilled; this is still not something that the court has discussed, thus a conclusive
statement cannot be made regarding the same.

If the court strictly follows the ruling of foreign jurisdictions on this matter, then
the Indian courts will rely largely on the recent judgement of R v. HMRC where
Justice Underhill explained that attestation would require the attesting mark or
signature to be part of original document itself and thus video conferencing and
virtual signatures would not be sufficient.

In Australia, technology has its combined effect on law as well. Here, the court
has recognized the importance of video conferencing by allowing its use in
attestation cases where it is used by indigenous communities to overcome
physical and geographical barriers. Thought the court has allowed this approach,
the ADLS is critical about this approach and has warned that use of technology
like video conference as a means to dodge geographical barriers can have
drawbacks.

In the Charanjit Kaur Nagi v.Government of NCT Delhi the court in their
judgement, commented on the use of video conferencing for attestation, the said
that it is open for a suitable mechanism to be created with the collaboration of
technology by introducing video conferences, positive identification and attesting
of signature or mark. The court did not approve of attestation via video
conferencing in this case and asked that the husband who was in US has to attest
the document in presence of a consult. Thus they left the job for the legislatures
to include it in future, but diverted the attention to the need for technology to be
integrated to ensure efficiency.

It is also the concern that video conferencing does not always show the whole
scenario. It could be the case that only a part is visible and not the whole, like the
face of the attester is visible but whether there is someone threatening the
witness or the same with the executor. On the other hand the argument can be
made that the personal acknowledgement clause allows the use of technology as
physical presence as a necessity for attestation and the requirement of seeing the
executor sign the document. Also it was argued in the Charanjit case the court
understood that at the time of the enactment, the technology had not advanced
to such extent, hence the drafters could not have intended video conferencing to
be included. Thus arguments can be made from both the sides, and it is up to the
courts to balance the requirements and reach a conclusion.
Effects of disabilities on the law regarding attestation

The Indian courts have long tried to find way to be more inclusive not just with
respect to gender, but also with respect to people who are specially challenged or
illiterate. India is a country where majority of the population is not highly
educated and to a large extent suffers from illiteracy, in such a case, for law to be
applicable equally to all individuals like out constitution envisages, the
prerogative is on the court and legislators to interpret the law and create law
respectively, in such a manner that the whole population can apply and adhere to
it. Due to this finding, the court has given varying interpretations to the section 3
of Transfer of Property Act so that it can be made more inclusive and widely
applicable. Over various cases, the general rule has become that there are no
disqualifications for specially challenged person to attest to a document. This
understanding means that anyone can be an attesting witness, but the
jurisprudence developed by cases and court’s interpretation suggests otherwise.
The interpretation and cases have put a certain standard that has to be fulfilled
before a person can attest a document in a valid manner.

In the case of Sundar Lal v D D C Sitapur case, the person who gave the
attestation to the document was blind. In this case the court said that the blind
person could not have attested the document unless the person is given personal
acknowledgement by the executor. This shows that the current transfer of
property act is made in such a manner that disabilities do not prevent an
individual from being a valid attestation to the document.

Even pardanashin women can give attestation to a document. But this was not
the position since the beginning. There were different cases which clarified the
stance on the attestation by pardanashin women. In the case of Padarth Halwai, a
pardanashin woman was allowed to give a valid attestation to the document. The
facts of the case were that the executor could be seen through curtain and the
voice of the executor who was a pardanashin woman, could be identified. Thus
when attestation was given, the attestation was held to be a valid attestation as
per section 3 of the transfer of property Act.

In the Lala Kundan Lal case, the facts were such that testator was a pardanashin
woman who was seen by her husband and the attestation through the curtain.
She took her hand out of the curtain and out her thumb mark. This was valid
execution and attestation on this basis was valid.

In Rao Ganga Singh case, the woman signed the document behind the curtain and
after the signing of the document the son of the woman brought the document to
the witness so that attestation could be done. The court in this case held that the
attestation was not valid as the acknowledgment was not given by the executor
herself.

By these three cases we can draw a clear picture with respect to pardanashin
woman being executor and them being attester for execution of a document. The
position can said to be that, if the person executing the document is a
pardanashin woman, then it is essential that the attester should see the woman
sign the document, it is acceptable that the attester could identify the woman
seeing through something or recognise her voice, but there has to be recognition
to make sure that there is not fraud. If attester is a pardanashin woman, then the
executor has to recognise the woman and then see her affix mark, even if it
involves seeing through a barrier, but the barrier should be such that it can be
seen who the person is. Even a blind person can attest when she gets personal
acknowledgement from the executor that the execution was made out of free
will. The only necessity is that the blind person should be able to identify that the
person giving the acknowledgement is the executor itself.

Conclusion

The Indian provision of transfer of property relating to attestation is adopted from

British law, but due to the amendments passed in India, the provision has a wider
application in India. The amendment has done away with the requirement of
executor being there at the time of signing of the document. Thus it has a wider
application.

Attestation does not refer to the mere signing of the document to attest it but a
valid attestation requires the intention to attest. This is also called animo
attestandi. There are numerous cases which have explained the applicability of
this term, and the understanding is that an individual can give a valid attestation if
she, at the time of affixing mark, intended to be a witness to the fact of execution
of the document and was aware that the document was executed without any
undue influence or coercion on the executant. If the witness does have the
mental capacity to or intention to corroborate these, till then the individual
cannot be said to have given a valid attestation.

The amendment apart from having wider application, has also allowed people
with disabilities to give proper attestation. Even a person with visual disability can
attest without having to fulfil the earlier requirement of seeing the executor
execute the document as now a personal acknowledgement of the execution by
the executor to the witness is also accepted for a valid attestation of the
document, only requirement is that the witness should identify that the
acknowledgement is given by the executor itself.

Apart from this, now there is a discussion of including video conferencing and
other technological advancements for attestation. In UK, the courts have refused
to include such technologies, but the understanding of the British is different from
ours and this is evident due to the amendment in our law. In addition to this, a
favourable view is taken by Australia and has appreciated the application in cases
where the location is in a geographically remote place. Thus the debate in India
will have the opportunity to see the use and misuse of such an approach when it
decides to incorporate the changes.