"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 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; but it shall not be necessary that
more than one of such witnesses shall have been present at the same time, and no
particular form of attestation shall be necessary:
- Section 3. Interpretation Clause.
The Transfer of Property Act, 1882 is the earliest legislation among the Indian
legal system, the main provisions of which, is a by-product of Contact law which
is closely related to succession rules. The act fulfills the necessity to give
definite meaning and make changes in some of the rules that regulate the
transfer of properties by the act of parties.
However, it limits itself by
making the provisions for inter vivos transfers i.e. the transfer has to take
place between living or juristic person. A juridical person according to the
court in Shriomani Gurudwara Prabandhak Committee, Amritsar v. Som Nath Dass and
. can be a corporation, independent firm, society, organization, but not a
A property may be transferred either orally i.e. by the delivery of possession
or, through the written legal document. Where the property is transferred
through a legal document, the transferor is said to be the executant of the deed
(or legal document) of transfer.
The form and formality is required before the execution of any legal
instrument, as a proof of the authenticity in the eyes of law so that no
legal document is made under force, undue influence, fraud, force, or
cohesion. It is necessary under the law that two persons must affirm, or
become the witness to the fact that executant, and nobody else, has written or
signed the deed of the transfer.
This act of giving evidence or becoming a
witness is what constitutes the essence of the attestation and the document is
said to be attested.
The section 3 of the Transfer of Property Act provides with the definition of
the attestation in relation to legal instrument. It states that the document to
be validly executed by the executant or by any other person directed by the
executor to personally acknowledge the attestator of the execution, and as proof
of his acknowledgement of the attestation, the attestator sign or affix his mark
on the instrument in the presence of the executant. Thus by this, the attestator
becomes the 'attesting witness' of the same legal instrument.
Requisites of valid AttestationSupreme Court in the case of M.N Abdul Jabbar v. H. Venkata Shastri  laid
down the essential conditions of a valid attestation as follows:
- For an attestation to be valid it must be done by two or more persons.
The witnesses must have seen the executant sign the document concerned or should
have received the personal acknowledgement from the executant himself.
- Each attesting witness must see the executant signing or fixing his mark
(thumb impression), or see some other person signing in the presence and by
under the direction of the executant.
- With the view to witness or attest the document, each of them should
sign the instrument in the presence of the executant, confirming that he has seen the
executant sign or has received the personal acknowledgement of the same. But in
case the attestation is done for some other purposes for example to certify that
he is a scribe or a registering officer, he fails to be an attesting witness.
Thus, it is essential that the witness put his signature with the purpose of
- The attestation can only take place after the execution of the legal
instrument is ready for it to be a valid one.
- Signature by an attesting witness at the legal document is acceptable
with all form and formality may constitute valid attestation. There is no
particular form of attestation is prescribed that parties need to adhere to.
Competency of attesting witnesses
Although the attestation is extremely vital with regards to the valid execution
of a transfer deed, yet it is surprising to see that Transfer Property Act, 1882
does not stipulate any qualification for the witness, to be competent. Since
the act is closely related to the Contract law, the qualification for the
competency of attesting witness does not differ much from the qualification of a
person who is competent to contract i.e. he must have attained the age of
majority and possess a sound mind.
The consideration of religion, sex, caste,
social and financial status stands irrelevant. A relative, a friend, a business
partner, or a neighbour can be a competent witness. Even an illiterate or blind
person can be a competent witness. However, a party to the deed, a person
who executes a deed of transfer as a power of attorney, or as an agent of
other cannot be attesting witnesses.
Since attestation is a special act of certifying the signature of an executant,
any other person example the scribe, the third party, a registrar cannot be
presumed to have attested the document. However, there are circumstances when
they qualify to become attesting witnesses.
Scribe as attesting witness
A scribe is a person who types a document, or who may sign on behalf of the
executant or an illiterate mortgagor, does not come under the definition of
attesting witness hence cannot be presumed to have attested the document.
However, a scribe may perform a dual role. In that case, the scribe shall put
his signature proving specifically that he is also attesting the document in the
capacity of an attesting witness.
Thus where the scribe signs as an
attesting witness and as identifying witness before the registrar and where his
signature is present on all the three different placeson the registered
document or where the scribe write the whole document read it over to the
parties and then puts his signature as an attesting witness in the presence of
the executant, the document is said to be validly attested.
Party Interested in the transaction
A party to the transfer of property cannot be an attesting witness. The parties
to the transaction are called transferee and transferor and neither the
transferee nor the transferor can be an attester. If there are several
transferees and transferors then no one among parties to the transfer can attest
the document. However, a person who is not a party to the transaction but is an
interested party in the transaction can become a competent attesting witness.
Where the third party, not the mortgagee advanced the money to the mortgagor and
also attest the deed, the attestation is a valid one. Likewise, where the
person who advances the money in favour of his benamidar for the mortgage is
competent to attest. In the case of Kumar Harish Chandra v. Banshidhar
 money lender was exempted from debarring him from attesting in the
capacity of attesting witness which evidences the transaction. The court
categorically drew a distinction between a person who is a party to the deed and
a person though not party to the deed, is a party interested in the transaction
and held former incompetent and latter competent to validly attest the deed.
Registrar as attesting witness
The sub-registrar or the registrar officer who registers the document, too
cannot be presumed to be an attesting witness in the transaction. The registrar
can be a competent witness if he provides with an animus to attest.
sub-registrar or registrar officer may act as an attesting witness, but it must
be shown that:
- He has put his signature with animo attestandi i.e. with intention to
- He has either personally seen the executant signing the document or has
seen the executant accepting the execution before him.
There had been several conflicting judicial opinions regarding the sub-registrar
as a competent attesting witness. Like in the case of Lachman Singh v Surendra
, the court denied the possibility of the sub-registrar coming
forward as an attesting witness because of the position that he holds in the
eyes of law does not allow him to be a competent witness.
The court found that
although the executant personally acknowledges the registrar about the execution
of the document and although he puts down his signature under the statement
recorded about the executant admitted the execution, he does not sign in the
capacity of attesting witness.
Contrary to that the court in the case of ML Abdul Jabbar Sahib v MV Venkata
observed that it is essential for the witness to sign the document
with animo attestandi, that is for the purpose of attesting and the receives the
personal acknowledgement from the executant himself or has seen him signing the
Effect of disability on competency of attesting witness
The Indian courts have found their way to develop judicially and become more
inclusive not just with the respect to gender but also with respect to people
who are especially challenged or illiterate. In order for the law to be
applicable to all equally, it needs to be interpreted in such a way that it
leaves no room for disqualification for specially challenged or illiterate
The same is the basic rule envisaged in our Constitution which is
considered to be the most prestigious book of our nation and prerogative is on
the court and legislators to interpret the law and create the law in such a
manner that can apply to the whole population to which they adhere to.
this finding, the court has several times interpreted the section 3 of the
Transfer Property Act so that there are no disqualifications for the specially
challenged but that also mean that anyone can be an attesting witness, however,
the jurisprudence developed by cases and court time and again imply otherwise.
Hence by the interpretation, certain standards have been laid down to be
fulfilled before attestation can successfully be done.
India is a country where majority of the population is not highly educated and
majority suffers from illiteracy. In fact, it is more disappointing to see the
statistics, according to the UNESCO report of 2017-18 around 35 percent of the
world's illiterate population resides in India. Thus law has to be
interpreted or amended in order to include such people under the ambit of the
Act who otherwise be disqualified.
The apex court in the case of Nagulapati
Lakshmamma v. Mupparaju Subbaiah
 relying on the number of judgements held
that the definition of 'sign' under General Clauses Act, 1897 would apply and
therefore the word 'Sign' in section 3 of the Transfer Property Act will include
the mark or thumb impression by the attester.
Even the Pardanashin woman can be the competent attesting witness provided
certain conditions must be fulfilled which have developed through a series of
cases. If Pardanashin woman is the executor in the transaction, it is essential
for the attester to see the woman signing the document or even recognize her or
recognize her voice in order to prevent fraud from happening.
If in case Pardanashin woman is attester then it is essential that the executor can
recognize her and then see her affixing the signature or mark but the person
could be recognized even behind the barrier. In the case of Lala Kundan lal v.
 the facts of the case were that the attester was a woman
where the attestation was made by taking her hand out of the curtain and a thumb
impression was put.
In case of Sundar law v. D D C Sitapur case the person who gave the attestation
was blind and the court observed the attestation given by the blind person would
be said valid if the attester receives the personal acknowledgement from the
executor himself and he could identify that the person giving acknowledgement is
executor himself. This shows the present Transfer of Property Act is made in
such a manner that it does not prevent any individual from being a valid
attestation subject to certain standards that should be met.
Judicial and legislative development
The concept of attestation evolves from English law, but the meaning and scope
of the definition of the Indian law differs from that of English law. It is
important to mention that the Transfer of Property Act, 1882 originally did not
contain the definition of attestation
. However the term was explained in the
Indian Succession Act, 1865 for valid attestation, where the witness could
either be present at the execution of the document or if not possible he could
receive the personal acknowledgement from the executor and then attest it. Under
English law, the scenario was quite different where the witness must see the
executor signing the document and attesting solely on the basis of receiving
personal acknowledgement was not permissible.
Due to the absence of a concrete definition of attestation under the Transfer
Property Act, a conflict of judicial opinion started to arise. Calcutta and
Madras High Court followed the English law rationale whereas Bombay and
Allahabad High Court had permitted the personal acknowledgement based
attestation as valid attestation.
Both of these rules continued when it was
finally highlighted in the case of Shamu Patter v. Abdul Kader,
 where the
same question was before the bench that whether the attester needs to be
actually present and see the signing of the document by the executor.
referred to Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee
 and Ramji v. Bai
 and It was concluded that for a valid attestation the competent
witness must have seen the executant put the signature on the execution deed.
In 1926 the definition of attested
was inserted through amendment in the TPA
Act and later in order to make the application of definition retrospective it
was further amended in the year 1927 inserted the words
"…and shall be deemed always to have meant…"
Furthermore, Indian Jurisprudence has developed gradually through time, the
qualification that has to be fulfilled for the person to be a valid attester has
been tuned in several times. The general rule is that the party to the
transaction or document cannot himself be an attester, to which court through
its interpretation has differentiated between the party interested and party to
a document and has found that the party interested in the transaction can be a
valid attesting witness. Moreover this rule has further developed and it was
standardised that an attesting witness is actually the one who is competent to
enter into a contract.
Other than the development of Indian jurisprudence, there has been increasing
debate internationally regarding incorporating the use of technology for
attestation. This means the use of video camera and digital signature to the
documents for a valid attestation. This is something that is still hasn't been
dealt with or acted upon substantially either by the Indian legislature or
Though it has been held by the court that for a valid attestation it
is necessary for the attester to affix his mark or signature to the concerned
document, thus merely having to see the execution of the document will not be
enough to be declared as valid attestation. But if I were to apply my reasoning,
affixing the digital signature during a video conference will fulfil the
It is pertinent to mention here that there is no statutory backup
for the same yet. An argument against can be made that at the time of the
enactment the technology had not advanced to such extent that drafters could
have decided to include video conferencing.
Going by the verbatim provision of section 3, it says;
"……each of whom has seen the executant sign or affix…"
Thus, here Legislative intent is not the physical presence but the clear line of
sight and acknowledgement about the execution. Likewise, the presence here
is not just the physical, it can also be a virtual presence.
So if all the
essentials and requirement are duly met by the parties and attesting witnesses,
affixing their mark through digital signature and above all, parties abiding by
the law during the process, there are hardly any chance of validity of the
instrument being questioned. This is still something that court has to decide
hence a conclusive cannot be made regarding the same. In Charanjit Kaur Nagi v.
Govt. Of N.C.T. Delhi and Ors
. the court did not approve of attestation
through video conferencing and left the matter to the legislature to include
video it in and expect them to keep in mind all the intricacies of technological
risks that may occur.
Proof of valid attestation in court of law
In cases where execution of the deed or the instrument is in question as a
matter of fact, in order to prove the validity of the deed, parties relying on
the fact need to prove that the attestation was done by two witnesses. When
the executor do not admit or specifically deny the execution and attestation of
the deed in question, the adverse party need only to prove that the deed was
signed in the presence of the witnesses.
A document required by law to be
attested can be used as an evidence and the court adjudging the validity of the
same by the virtue of the section 68 of the Indian Evidence Act, 1872 can call
one of the attesting witnesses for the purpose of proving its execution. If
however the execution of the deed is not specifically denied apart from the
document which has to be proved, there is no need to call an attesting witness
to prove the same. Hence, when the document is duly attested by the two
witnesses and one of them is examined properly so as to prove the deed. Not
anything extra is needed to fulfill the execution in absence of specific denial
in the written statement or later during proceedings before the court.
As simple and direct the procedure of proving the execution as it seems, it is
not that simple after all. More often than not when a witness is called by the
party to the proceeding to prove the deed they collude with the opposite party
and deny or assert that they cannot recollect the fact. For such contingencies,
the evidence act provides the provisions to prove the document through other
pieces of evidence.
In cases where a witness cannot be found he may be dead
or incapable of giving evidence, under the provisions of section 69 of the IEA,
1872 it is to be proved that the signature on the document is in the handwriting
of person by whom the document purports to be executed and also the signature is
in the handwriting of the deceased witness. Hence, it will be presumed
execution to have been witnessed unless rebutted.
The fate of the transferee or legatee, under any deed or instrument required by
the law to be attested, cannot be placed at the mercy of attesting witness. The
law enables proof to be effected even if the attesting witness denies the
execution of the deed.
The provisions Transfer Property Act, 1882 relating to the attestation is surely
inspired by the British law, but with the aid of our Indian legislative mind and
judicial interpretation, the provisions have a wider application now, with the
combination of flexibility and rigidity that it offers. The attestation law
provisions which can be found in first in the Transfer property, 1882 under
section 3 and the Indian Succession Act, 1925 under section 63(c), there the
attestation does not refer to mere putting the signature in the presence of
executor instead it requires an intention to attest.
The applicability and the
significance to the attestation have been explained in numerous cases and it is
understood that an individual can give valid attestation affixing his mark
intended to witness the fact of execution and that the executant is not under
any undue influence, coercion, fraud. The witness then is expected to
corroborate these facts in a court of law if needed.
Apart from this, I feel it is pertinent to mention the need for the inclusion of
video conference and electronic signature in property-related transactions
especially in the case of attestation where physical presence is very much
required. Since Covid-19 has forced a large percentage of the population to
work remotely and physical distancing measures have already prove to be a spur
to accelerate the take-up of the electronic signature platform and virtual
The recent report of the steering committee of Fintech issues has also
discussed the reengineering the legal system for the digital world. Thus,
the legislature must facilitate the witnessing of signature and attestation
through audio-visual Link like Zoom or skype. Even the Information Technology
Act, 2000 and Indian Evidence Act, 1872 recognize the validity of electronic
If the provision regarding the same is made anytime soon following are the
requisites that must be met, where witness must:
- see the party signing the document
- sign the scanned copy of the signed document sent electronically by the
- be confident with the document they are signing is the same document
that the signatory is signing
- Endorse the document attested or the copy with a statement mentioning
the method of witnessing.
- Ins. by Act 27 of 1926
- Shriomani Gurudwara Prabandhak Committee, Amritsar v. Som Nath Dass and
- In the law the term 'execution' has not been defined specifically. In
the normal parlance execution means the signing of the document. In the case
of Bhavanji v. Devji, (1894) ILR, 19 Bom 635 it was observed that the
execution means signing, sealing, and delivery of document and the term may
be defined as the formal completion of the deed.
- Instrument is defined under section 3.Interpretation clause, as a
- Indu Paintal v. General Public, (2011) 97 AIC 761.
- M.N Abdul Jabbar v. H. Venkata Shastri, AIR 1965 SC 1147
- B. Rajegowda v. H.R. Shankere Gowda, AIR 2006 Kant 48, ILR 2005 KAR 5501,
2006 (6) KarLJ 237
- Sant Ram v. Kamala Prasad, MANU/SC/0043/1951
- Peddavandla Narayanamma v. Peddasant Venkata Reddy, AIR 2007 AP 137
- Seal v. Claridge 7 QBD 516 (1881)
- Gomathi Ammal v. Krishna Iyer, MANU/TN/0131/1954
- Peddavandla Narayanama v Peddasant Venkata Reddy, AIR 2007 AP 137
- Govind Bhikaji v. Bhau Gopal, 39 IC 61, (1917) ILR 41 Bom 384
- Brij Raj Singh v. Sewak Ram, MANU/SC/0290/1999
- Kumar Harish Chandra Singh Das v. Bansidhar Mohanty, AIR 1965 SC 1738
- Durga Din v. Suraj Bakhsh, MANU/OU/0018/1931
- supra note 15
- Supra note 6
- Venkata Sastri v. Rahilna Bi, MANU/TN/0561/1961
- Lachman Singh v Surendra Bahadur Singh, MANU/UP/0094/1932
- M.N Abdul Jabbar v. H. Venkata Shastri, AIR 1965 SC 1147
- UNESCO Global Education Reports, Accountability in Education: Meeting
- Nagulapati Lakshmamma vs Mupparaju Subbaiah, MANU/SC/0282/1998
- Lala Kundan Lal v. Mushrafi Begum, AIR 1936 PC 207
- Abdul v Saliman, (1900) ILR 27 Cal 190; Surur Jigar Begum v Barada Kanta,
(1910) ILR 37 Cal
- Ramji v Bai Parvati, (1903) ILR 27 Bom 91; Ganga v Shiam Sundar, (1904) ILR
26 All 69
- Shamu Patter v. Abdul Kader, 16 IC 250 (1912) ILR 35 Mad 607.
- Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee MANU/WB/0040/1898
- Ramji v. Bai Parvati (1904) ILR 27 Bom 59
- Section 3, Transfer Property Act, 1882
- Richard Gibbard, A witness to history: attesting document in Lockdown,
Field fisher, March 27, 2020,
- Right v. Price (1779) 1 Doug. K.B. 241
- Charanjit Kaur Nagi v. Govt. Of N.C.T. Delhi and Ors, MANU/DE/8847/2007
- Supra note 20.
- Janki Narayan Bhoir vs. Narayan Namdeo Kadam MANU/SC/1155/2002
- Brij Raj Singh v Sewak Ram MANU/SC/0290/199
- Section 71, Indian Evidence Act, 1872
- K. Laxmanan vs. Thekkayil Padmini and Ors. MANU/SC/8352/2008
- V. Kalyanaswamy (D) by L.Rs. and Ors. v. L. Bakthavatsalam (D) by L.Rs. and
Department of Economic Affairs, Ministry of Finance GOI, Report on steering
committee on Fintech related issues