Topic 2 – Attestation (Sec.

3)
Importance of attestation;
who may be a competent witness;
mode of attestation;
attestation by a Pardanashin woman
1. Kumar Harish Chandra Singh Deo v. Bansidhar Mohanty,
AIR 1965 SC 1738 : (1966) 1 SCR 153 42 6. M.L .
2. Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147 : (1969)
1 SCC 573 44 7.
3. Padarath Halwai v. Ram Narain, AIR 1915 PC 21 49
Contant
1. INTRODUCTION
2. MEANING AND DEFINITION
3. LEGISLATIVE AND JUDICIAL DEVELOPMENTS
4. ESSENTIAL ELEMENTS
5. DISTINCTION BETWEEN INDIAN AND ENGLISH LAW
6. COMPETENCY OF ATTESTING WITNESSES
7. SCRIBE
8. REGISTRAR AS ATTESTING WITNESS
9. PARTY INTERESTED IN THE TRANSACTION
10. CONCEPT OF ANIMO ATTESTANDI
11. MODE OF ATTESTATION
12. ATTESTATION OF A DOCUMENT BY A PARDANASHIN WOMEN
13. PROOF OF VALID ATTESTATION .
Introduction

For the transfer of immovable property ,the owner has to comply with the
three basic formalities.
1. The execution of a proper written deed is first requirement .i.e signed by
transferor.
2. It has to properly attested.
3. It should be duly registered.
Thus, proper attestation is an important element in transfer of property.
1. What does ‘to attest’ mean?
To ‘attest’ means to sign and witness any fact i.e. the fact of execution by the executant.
2. What does ‘to execute’ mean?
To ‘execute’ means to write and to put signatures on the instrument.
3. What does the word ‘attesting’ signify?
The word ‘attesting’ in T.P Act means that a person has signed the document by way of testimony
of the fact that he saw it executed. The party who sees the document executed is, in fact, a witness
to it.
4. Is it mandatory to attest every transaction under the Transfer of Property Act?
The T.P. Act requires attestation but not in respect of every documents. Thus, where mortgages and
gifts need to be attested, sales, exchanges or leases do not require attestation.
5. Is personal acknowledgement from the executant to the
attestatar sufficient for the attestatar to attest the
document?
Yes, Indian law permits personal acknowledgement by the
executant as a part of the valid transaction but the
acknowledgement should not be vicariously through any
agent or any other person.
6. Is it a valid transaction under the T.P Act if the
witnesses sign during the execution of a deed?

No, the attesting witnesses must sign only after the execution
of the legal instrument/document is complete for it to be a valid
attestation.
MEANING OF ATTESTATIOn ; Attestation means to sign or witness the fact
According to the Section 3 of Transfer of Property Act, Attestation means that a
person has signed the document by way of testimony of the fact that he saw it
executed.

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.

Attestation
attestation means to sign and witness any fact.
A property may be transferred by delivery of possession or by a written
document. When the property is transferred through document, it is said that
the deed or document of the transfer has been executed by the transferor.
The transferor of property who executes the deed is known as an executant.

For the execution of the deed, it is necessary that two persons must be
present who must witness that only the executant has written or signed the
deed.
This process of witnessing the execution of a deed is called attestation, and
such persons are known as attesting witnesses
 Attestation:Objects
The expression attestation is derivation of attested
To attest means to testify a fact or to bear a witness to fact
It means to sign and witness the fact of execution of document by executant

Attestation in relation to document signifies the fact or authentication of document,signature of

executant by attester putting down his signature on document.

Object of attestation
An attestation of document ensures the authenticity or truthfulness of execution of document
Two fold objects:
1. It confirms that document is executed by executant only.
2. The Executant executed the document with free consent without force,fraud of influence.

Generally property is transferred by written document containing contract . such document

is called as instrument .the person transferring the property must execute document with
his signature in presence of witness .when witness put his signature ,it is called attestation.
Concept
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 attestatar 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’.
e.
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.
DEVELOPMENTS
This provision for attestation was not originally drafted in the manner it is today. Initially, under

the 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 in 1927. Thus

the presence of witnesses was disposed of. 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 situations 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 himself gives a personal acknowledgement of the signature to the witnesses.
DISTINCTION BETWEEN INDIAN AND ENGLISH LAW
This concept of attestation stems from 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 from what is there in the English law on two grounds.

1. First it does not require the attester to be physically present at the time of the signing of the
document by the executor.
2. 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 allows 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 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
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. Though 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

the US has to attest the document in presence of a consultant. 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.
Competency of attesting witnesses
TPA does not stipulate any qualification for the competency of a witness.

Attesting witness must be a person who is competent to contract i.e. he must have
attained majority and be of sound mind. Religion ,sex.caste , social status etc are
totally irrelevant .

A relative,neighbour,business partner ,friend,colleague even an illiterate person

can be a competent witness.
Illustration
1. 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.

2. A, a boy 16 years 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.

3. 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.
Can not be attesting witnesses
A party to deed

A person who execute a deed as a power of attorney or

An agent of other are not competent witnesses.

Scribe
A scribe is a person who may sign on behalf of the executant .

A scribe who sign on behalf of illiterate mortgagor is not a competent attesting

witness but where the mark was put by mortgagor but the scribe merely wrote a
description of it ,he is a competent to attest .

A scribe may be an attesting witness as well as the writer, but it is essential to

prove that he signed as an attesting witness.
Party interested in the transaction
A party who is interested in transaction can be a competent witness.

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’. It was a valid deed because Z is interested
in the transaction but not a party to the transaction.
Kumar Harish Chandra Singh Deo v Bansidhar Mohanty (AIR 1965 SC 1738)

The case relates to a mortgage deed. In the deed, the parties to the transaction had been the
mortgagor and the mortgagee, but the money to the mortgagor was advanced by a third person. The
third person, i.e., the moneylender was one of the attesting witnesses. The third person, i.e., the
moneylender was one of the attesting witnesses. The question arose whether the mortgage deed was
validly attested.
Held:
It was held by the Supreme Court that as the object of attestation is to protect executant from being
required to execute a document by the other party thereto by force, fraud or undue influence, a party
to the transaction cannot attest it. It must, however, be borne in mind that the law requires that the
testimony of the parties to the document cannot dispense with the necessity of examining at least one
attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party to the
transaction from attesting a document which is required by law to be attested.
Although, a person interested in the transaction and he is not a party to the deed may attest the
document. In this case, the money lender was a person who was very much interested in the
transaction of a mortgage, but he was not a party to a deed. It was observed by the Supreme Court
that a distinction has to be drawn between a person who is a party to the deed and a person who
though not a party to the deed, is a party to the transaction, and the latter is competent to the deed
Registrar as Attesting Witness
A registrar can be a competent witness provided he has animus attest .

The sub-registrar or registering officer who registers the document may act as
attesting witness,but it must be shown that

1. He has intention
2. He has either personally seen the executant signing the document ,or the
executant accepts the execution before him.
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.
 ATTESTING WITNESS

For the purpose of attesting, the signature put by the witness should
essentially be ‘animus testandi, that he has seen the executant sign or has
received from him a personal acknowledgement of his signature. If a person
has put his signature on the document for some other purpose, e.g., to
clarify that he is a scribe or an identifier or a registering officer, he is not an
attesting witness.‘Animus testandi’ must be there for a valid attestation.
Attestation of a document executed by a pardanashin
Women
In case of pardanashin women, the witnesses may not be able to see the women
,as she may remain behind purdah (veil)due to social custom .if the witnesses are
well versed with the voice of the pardanashin women, it is validly attested .
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.
Illustration

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
Attesting witness not a party to the execution of the deed
Mere attestation of document would not make an attesting witness a party to the
execution of the document.
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.
Effects of disabilities on the law regarding attestation

The Indian courts have long tried to find ways 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 persons 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 a 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 the 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 women being executors and

them being attesters 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 the 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.
EFFECT OF INVALID ATTESTATION

If a document is not validly attested, as required by the section, it is

ineffective. For example, under Section 59 of the Act if the mortgage
deed is not duly attested, it cannot be enforced in a Court and it will
also be cut out to operate as a charge.
Proof of valid attestation in court
In order to prove the validity of a deed ,the party relying on it must prove that it
was at least by two witnesses. A document requiring attestation can be used as
evidence .
Nila Dei v Bidyadhar Sahani
In this case the evidence of one of the attesting witness is shaky with respect to
the execution of the gift deed and no evidence is there to show that the document
is signed by the donor in the presence of the other witnesses and the execution of
the document is suspicious,the document is not validly executed.