Actionable Claim

Actionable claim means a debt or a claim on which action can be started in a

Court of law for comfort or relief. The actionable claim is defined under section 3
of the Transfer of Property Act, 1882.
Introduction
Actionable claim means a debt or a claim on which action can be started in a
Court of law for comfort or relief. The civil Courts recognized as giving the
grounds for relief whether such claims are conditional, accruing and other. The
actionable claim is defined under section 3 of the Transfer of Property Act, 1882.
In general terms, an actionable claim is a debt or claim for which the person can
take an action and also approach the Court for recovery his debt or claim.
Tangible or touchable movables such as chairs or bikes and many have physical
existence and can be possessed. Some movable property is an actionable claim.
It is also a claim for unsecured debt and any beneficial interest in the moveable
property and the property is not in any kind of possession.
Like example- X is a person who needs a loan or money from Y. Then X takes loan
50,000/- from Y. And Y does not take any security. It means X takes loan 50,000/-
from Y without any security. So the debt or claim given by Y is an actionable
claim. And if the X failure on his part or not repay the money then Y can
approach the Court.
Definition
According to section 3 of the Transfer of Property Act, the actionable claim is a
claim to any debt which is not secured by a mortgage, pledge, and
hypothecation. The mortgage of immovable property does not come under
section 3 of Transfer of Property Actand also the pledge OR hypothecation of
moveable property is not an actionable claim. An actionable claim is transferable
under the Transfer of Property Act. The transfer of actionable claim is given under
chapter eight of the Transfer of Property Act. Chapter eight of the Transfer of
Property Actis the last chapter of the Transfer of Property Act and it covers
section 130 to 137.
Important Provisions dealing with Actionable Claim under Transfer of
Property Act
Under Section 130 of the Transfer of Property Act, the mode of transfer of
actionable claim is described. According to Section 130,
· The transfer can be done by only a written instrument;
· And signed by the transferor or his legal agent; and
· The transfer will be complete.
Exceptions of the Sec 130-Sec 130 does not apply on the transfer of marine
and insurance of fire policy.
In the case of Simon Thomas vs. State Bank of Travancore[1], in this case, there
should be an intention to transfer the debt represented by the written receipts.
Under Section 132 of the Transfer of Property Act, defines the liability of
the transferee of actionable claim. The liabilities and equities of the transferor
are transferred to the transferee.
Some examples of actionable claim, these following claims are the
actionable claim-:
1. Claim for arrear rent.
2. Claim for rent to fall due in future.
3. A choice offered to repurchase the property once again.
4. Book debts or claims
5. The right to claims maintenance.
6. Claim the benefit of the contract.
7. Deposit receipt.
The following claims are not the actionable claim-:
1. A claim which is decreed.
2. “Right to sue”, it is a right but it is not an actionable claim.
3. The claim for the main profits.
In the case of the Jugalkishore Saraf Vs Raw Cotton Co. Ltd[2]., the Supreme
Court held that a judgment debt or decree is not an actionable claim for action is
necessary.
In the leading case Lachmi Koeri Vs the State of Bihar[3], the Court has been
pointed out the transfer of arrears of rent is a type of a transfer of actionable
claim. And the transfer of arrears of rent could be transferred in accordance with
the provisions of the Transfer of Property Act.
In the case of Rekhath Koeri[4], where the Court said that the transfer of arrears
of rent is really a transfer of actionable claim and it could be transferred in
accordance with the rules and regulations of Transfer of Property Act.
Section 133 of the Transfer of Property Act described the warranty of solvency
of the debtor. In this section when a claim is transferred the transferee may run
the chance or risk of losing the debt, in this case, the debtor is insolvent. So as a
precautionary measure, the transferee should be assured that the debtor is
solvent.
Section 134 of the Transfer of Property Act is deals with the mortgaged debt.
And section 135 of the Transfer of Property Act deals with the assignment of
rights under the policy of insurance against fire. Section 136 deals with the
incapacity of officers connected with the Court of justice. The person who
includes in section 136 are:-
· Legal practitioner;
· Judges of the Court; and
· The legal or officer who concerned with the justice of the Court.
And the last Section 137 describes the saving of negotiable instruments and
etc.
In the case, State of Kerala and Ors. Vs. Mini Shamsudin and Ors[5]., the Court
said that actionable claims are ‘goods’ and movable property but it is not for the
purpose of the sales tax acts.

Attestation Under the Transfer of Property Act, 1882

Attestation is an important aspect of legal documentation, serving as proof of the
authenticity and voluntary execution of a document. Under the Transfer of
Property Act, 1882 (TPA), attestation is particularly significant, as it ensures that
the execution of certain property transfer documents adheres to the prescribed
legal standards.
Definition of Attestation under Section 3 of the TPA
Section 3 of the TPA provides a detailed definition of attestation in relation to an
instrument. According to this section, “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
 Some other person sign the instrument in the presence and by the
direction of the executant, or
 Has received from the executant a personal acknowledgement 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.
It is important to note that it is not necessary for more than one of such
witnesses to be present at the same time and no specific form of attestation is
required.
Requisites of a Valid Attestation
For an attestation to be valid under the TPA, certain requisites must be fulfilled:
Number of Witnesses: There must always be two or more attesting witnesses.
Witnesses’ Perception: Each witness must have either:
 Seen the executant sign or affix his mark to the instrument, or
 Seen some other person sign the instrument in the presence and by the
direction of the executant, or
 Received from the executant a personal acknowledgement of the
executant’s signature or mark or of the person signing on behalf of the
executant.
Witnesses’ Signature: Each witness must sign the instrument in the presence
of the executant. The witnesses must sign only after the execution of the
document is complete; otherwise, the attestation is invalid.
No Particular Form: No particular form of attestation is necessary. The
acknowledgement must be made by the executant personally and not vicariously
or through agents.
Purpose of Witnesses’ Signature: It must be shown that the witness signed
the document with the intent of certifying that he saw the executant sign or
acknowledge the document.
Non-party Witnesses: A person who is a party to the transfer cannot be an
attesting witness, but a party interested in the transaction can be a competent
witness.
Identification of Signatures: It is not necessary that the attesting witnesses
should be able to identify each other’s signatures.
Legal Enforceability: The document cannot be enforced in a court of law if the
attestation is invalid.
Legal Implications and Case Law Interpretations
Judicial interpretations of attestation under the TPA have provided significant
insights into its application and requirements. Some landmark cases include:
Kundal Lal v. Rofi Begum (1939)
In Kundal Lal v. Rofi Begum, the Privy Council held that attestation would be
valid even if the lady behind the curtain could see the attesting witness if she
wanted to. This case underscored that the critical aspect of attestation is the
opportunity for the witnesses to see the executant, not necessarily that they
physically saw the signing if circumstances, like purdah, were in place.
Abdul Jabbar v. Venkata Sastri (1966)
In Abdul Jabbar v. Venkata Sastri, the Supreme Court of India held that if a
person puts his signature on a document for any purpose other than attestation,
he is not considered an attesting witness. This ruling emphasised the need for
clarity in the purpose behind a witness’s signature and reinforced that mere
presence or signature without the intent of attestation does not fulfil the legal
requirements.
Key Elements from Judicial Precedents
 Intent and Purpose: The intent behind the witnesses’ signatures must
be to attest to the execution of the document. Signatures for other
purposes do not qualify as attestation.
 Personal Acknowledgment: Personal acknowledgement of the signature
or mark by the executant to the witnesses is an important element. This
ensures the authenticity and voluntary nature of the execution.
 Presence Requirement: Witnesses must sign in the presence of the
executant. The presence of the executant during the attestation process is
 vital to validate the witnesses’ testimony regarding the execution of the
document.
 Sequence of Signing: Witnesses must sign the document only after the
executant has executed it. Signing before the executant’s execution
invalidates the attestation.
 Non-Party Witnesses: While parties to the transfer cannot act as
witnesses, those with an interest in the transaction may serve as
competent witnesses. This distinction helps maintain the impartiality and
credibility of the attestation process.
Importance of Attestation in Specific Transactions
Mortgages
Under the TPA, attestation is mandatory for certain transactions, such as
mortgages. The attestation of a mortgage deed by two or more witnesses
ensures that the document has been executed voluntarily and with a full
understanding of its implications. This legal safeguard helps prevent disputes
and ensures the enforceability of the mortgage in a court of law.
Gifts
Similar to mortgages, gifts under the TPA must be attested by two or more
witnesses. The attestation serves as evidence that the donor executed the gift
deed voluntarily and with full knowledge of its contents. This requirement helps
protect the interests of both the donor and the donee by providing an
unambiguous record of the transaction.
Sales, Exchanges and Leases
Interestingly, the TPA does not mandate attestation for documents affecting
sales, exchanges and leases. While these transactions do not require attestation
under the Act, parties often include attestation as an additional layer of security
to avoid potential disputes and strengthen the legal validity of the document.