Attestation
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.
Essentials of a Valid Attestation
1. The attesting witnesses must always be two or more for it be an authentic attestation.
2. The attestator though need not see the execution of the legal instrument, he must either see the
executant sign or affix his mark or see anyone else do so on the direction of the executant or
receive personal acknowledgement from the executant of the same.
3. But, it is mandatory for the attestator to sign or affix his mark in the presence of the executant
for it to validate as an ‘attesting witness’.
4. The attestator can only sign after the execution of the legal instrument/document is complete
for it to be a valid attestation.
5. The attestators (two or more) need not sign or affix their mark at the same time.
6. There is no particular form of attestation that the parties need to adhere to. Even a signature by
an attesting witness at the legal document with all form and formality may constitute attestation.
7. The personal acknowledgement to the attestator must be given by the executant himself and
not through any other source.
8. ‘Attestator should be sui generis’ i.e. the attestator should be competent to contract. Thus, a
minor cannot be an attestator.
9. ‘Attestator must be AnimoAttestandi’ i.e. an attestation will only be valid if the attestator has
signed the legal instrument with an ‘intention to attest’ to authenticate the execution of the
document.
10. Attestation under the Transfer of Property Act does not validate an attestation if the attesting
witness is a party to the transfer’.
11. The attestator is not ‘estop’ by the attestation of a deed except that he witnessed the
execution of the deed. The mere attesting of a document by the attestator is no proof that he is
aware of the contents of the document.
12. The attesting witnesses need not identify each other for it to constitute a valid attestation.
Effect of Invalid Attestation
The Transfer of Property Act deals with the transfer of ‘movable’ and ‘immovable’ property and
the transfer when made in the form of a ‘Gift’ or ‘Mortgage’ requires attestation. Such attestation
if invalid in nature renders the entire transaction of the transfer of property invalid, and therefore
no property passes under it. Thus the deed cannot be invoked in a court of law. In Krishna
Kumar v Kayashta Pathshala (AIR 1966 All 570) it was held that ‘If the deed is a mortgage, it
can neither operate as a mortgage, nor as a charge under Sec. 100. But though the deed may be
ineffectual as a mortgage for want of proper attestation, still it will be admissible as evidence of a
personal covenant to repay the debt’ i.e. though the mortgagee cannot emphasize the mortgagor
to fulfil the mortgage deed as per the law, he still can approach the court and emphasize the
mortgagor to repay his debt and the deed as a proof of the same.
In Vellie Mary Andrade v Glory Immacalate D’ Julia and Ors ( Suit no 38 OF 1989-2017) it was
contented that the will was invalidly attested because the three signatories were not named as
‘attesting witnesses’. The Supreme Court found out that all the three signatories had seen the
testatrix affix her mark on the will and that there was no substance in the grievance that proof of
the will was incomplete for want of attesting witnesses’ evidence.
Illustration- Sushil is the owner of a land. He wants to mortgage it to Sameer and wants Akash to
be the attesting witness. Shashi being the elder brother of Akash exercises undue influence over
him and does not inform him of his status as an attesting witness. The mortgage deed is thus
invalidly attested and the property will not pass under it for the purpose of mortgage.
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 voluntary ily. 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.
Landmark Case laws
Kumar Harish Chandra Singh Deo v Bansidhar Mohanty (AIR 1965 SC 1738)
In the present case it was held that as the object of attestation is to protect the executant from
being required to execute a document by the other party thereto by force, fraud or undue
influence, a party to the attestation cannot attest it. But any other party who is not a party to a
deed may attest the document although he is a person interested in the transaction.
Padarath Halwai v Ram Narain (AIR 1915 PC 21)
In the present case the court observed that though the executants were pardanashin women, the
two attesting witnesses recognized the ladies by their voices, and they say that they saw each
lady execute the deed with her own hand. It was after that the attesting witnesses had put
signatures on the document. Therefore, the document stands duly attested under Sec 59 of the
T.P. Act, 1882.
M.L. Abdul Jabbar Singh v H. Venkata Sastri ( AIR 1969 SC 1147)
In the present case the importance of valid attestation is highlighted in matters of transfer of
property; it is essential that the witness put his signatures animoattestandi i.e. with the intention
of attesting. In the present case, however, there was no evidence that the registering officer put
his signature on the document with the intention of attesting it; nor that he signed it in the
presence of the executant.
Girja Dutt v Gangotri Datt Singh (AIR 1955 SC 346)
In the present case two persons had identified the testator at the time of registration of will and
had appended their signatures at the foot of endorsement by the sub-registrar, were not witnesses
as their signatures were not put animo attestandi.
Bhagwat v Gorakh ( AIR 1934 Pat 93)
In the present case the court observed that though mere attestation of a document is no proof that
the attesting witness is aware of the contents of the document. But where an attesting witness
was present at the transaction and attested the documents after having heard the contents, it was
held that he was estopped from challenging the right of the transferee.
Illustrations
1. X and Y were parties to a transaction, X being the mortgagor and Y the mortgagee but the
money was advanced to X by Z. Z became the ‘attesting witness’. I t was a valid deed because Z
is interested in the transaction but not a party to the transaction.
2. A, the son of a pardanashin lady B, takes the document inside the purdah, gets it executed and
brings it outside and then the attesting witnesses put their signatures after receiving the
acknowledgement from A and not from B. The deed executed is thus invalid.
3. X and Y, two attesting witnesses to a deed were not present at the same time to sign and affix
their mark on the deed. The deed is valid as their simultaneous presence is not mandatory.
4. A, a boy 16years old is one of the attesting witnesses for the gift deed executed by A. The gift
deed is invalid as A is a minor and is incompetent to become an attestator.
5. A and B executed a mortgage deed between them and C, A’s son became one of the attesting
witnesses to which B objected. The deed is valid as there is no prohibition on relatives being
attesting witnesses.
MULTIPLE CHOICE QUESTION
1.Which section of the Transfer of Property Act defines ‘Attestation’ in relation to a legal
instrument
(a) 2 (b) 3 (c) 4 (d) None of the above
2. A valid attestation constitutes an execution of a legal instrument by
(a) the executant or
(b) any other person who has been directed by the executant
(c) Both (a) and (b)
(d) Either (a) or (b)
3. . Under the Transfer of Property Act, 1882, the term “attested” means
(a) attested by two or more witnesses
(b) attested by one witness only
(c) attested by two witnesses only
(d) no condition prevails.
4. Which of the following is correct about the Attestation
(a) The attesting witnesses must always be two or more for it be an authentic attestation.
(b) The attestator though need not see the execution of the legal instrument, he must either see
the executant sign or affix his mark or see anyone else do so on the direction of the executant or
receive personal acknowledgement from the executant of the same.
(c) it is mandatory for the attestator to sign or affix his mark in the presence of the executant for
it to validate as an ‘attesting witness’.
(d) All of the above
5. Under the Transfer of Property Act 1882 attestation requires for
(a) Mortgage (b) Gift
(c) Both (a) and (b) (d) None of the above
