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Attestation Law Under The Transfer Of Property Act, 1882: Law Concerning The Proving Of Valid Attestation

"Attested[1], 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.

Introduction
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 Ors.[2] can be a corporation, independent firm, society, organization, but not a union.

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[3] of any legal instrument,[4] 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.[5] 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 Attestation

Supreme Court in the case of M.N Abdul Jabbar v. H. Venkata Shastri [6] laid down the essential conditions of a valid attestation as follows:
  1. 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.
     
  2. 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.
     
  3. 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.[7] Thus, it is essential that the witness put his signature with the purpose of attesting.
  4. The attestation can only take place after the execution of the legal instrument is ready for it to be a valid one.[8]
     
  5. 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.[9] 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,[10] a person who executes a deed of transfer as a power of attorney, or as an agent of other[11] 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,[12] 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.[13]

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 places[14]on 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.[15] Likewise, where the person who advances the money in favour of his benamidar for the mortgage is competent to attest.[16] In the case of Kumar Harish Chandra v. Banshidhar Mohanty[17] 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.[18]

The sub-registrar or registrar officer may act as an attesting witness, but it must be shown that:

  1. He has put his signature with animo attestandi i.e. with intention to attest; and
  2. He has either personally seen the executant signing the document or has seen the executant accepting the execution before him.[19]
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 Bahadur Singh,[20] 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 Sastri [21]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 deed.

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 people.

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.

Due 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.[22] 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[23] 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. Mushrafi Begum[24] 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[25] followed the English law rationale whereas Bombay and Allahabad High Court[26] 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,[27] 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.

The court referred to Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee[28] and Ramji v. Bai Parvati[29] 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…"[30]
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 judiciary.

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 requirement.

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…"[31]
Thus, here Legislative intent is not the physical presence but the clear line of sight[32] and acknowledgement about the execution. Likewise, the presence here is not just the physical, it can also be a virtual presence.[33]

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.[34] 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.[35] 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.[36] 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.[37]

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.[38]

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.[39] 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.[40]

Conclusive Remarks
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 closings.

The recent report of the steering committee of Fintech issues has also discussed the reengineering the legal system for the digital world.[41] 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 contracts.

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 signatory
  • 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.
End-Notes:
  1. Ins. by Act 27 of 1926
  2. Shriomani Gurudwara Prabandhak Committee, Amritsar v. Som Nath Dass and Ors, MANU/SC/0219/2000
  3. 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.
  4. Instrument is defined under section 3.Interpretation clause, as a non-testamentary instrument.
  5. Indu Paintal v. General Public, (2011) 97 AIC 761.
  6. M.N Abdul Jabbar v. H. Venkata Shastri, AIR 1965 SC 1147
  7. B. Rajegowda v. H.R. Shankere Gowda, AIR 2006 Kant 48, ILR 2005 KAR 5501, 2006 (6) KarLJ 237
  8. Sant Ram v. Kamala Prasad, MANU/SC/0043/1951
  9. Peddavandla Narayanamma v. Peddasant Venkata Reddy, AIR 2007 AP 137
  10. Seal v. Claridge 7 QBD 516 (1881)
  11. Gomathi Ammal v. Krishna Iyer, MANU/TN/0131/1954
  12. Peddavandla Narayanama v Peddasant Venkata Reddy, AIR 2007 AP 137
  13. Govind Bhikaji v. Bhau Gopal, 39 IC 61, (1917) ILR 41 Bom 384
  14. Brij Raj Singh v. Sewak Ram, MANU/SC/0290/1999
  15. Kumar Harish Chandra Singh Das v. Bansidhar Mohanty, AIR 1965 SC 1738
  16. Durga Din v. Suraj Bakhsh, MANU/OU/0018/1931
  17. supra note 15
  18. Supra note 6
  19. Venkata Sastri v. Rahilna Bi, MANU/TN/0561/1961
  20. Lachman Singh v Surendra Bahadur Singh, MANU/UP/0094/1932
  21. M.N Abdul Jabbar v. H. Venkata Shastri, AIR 1965 SC 1147
  22. UNESCO Global Education Reports, Accountability in Education: Meeting our commitments
  23. Nagulapati Lakshmamma vs Mupparaju Subbaiah, MANU/SC/0282/1998
  24. Lala Kundan Lal v. Mushrafi Begum, AIR 1936 PC 207
  25. Abdul v Saliman, (1900) ILR 27 Cal 190; Surur Jigar Begum v Barada Kanta, (1910) ILR 37 Cal
    526
  26. Ramji v Bai Parvati, (1903) ILR 27 Bom 91; Ganga v Shiam Sundar, (1904) ILR 26 All 69
  27. Shamu Patter v. Abdul Kader, 16 IC 250 (1912) ILR 35 Mad 607.
  28. Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee MANU/WB/0040/1898
  29. Ramji v. Bai Parvati (1904) ILR 27 Bom 59
  30. Section 3, Transfer Property Act, 1882
  31. Ibid
  32. Richard Gibbard, A witness to history: attesting document in Lockdown, Field fisher, March 27, 2020,
  33. Right v. Price (1779) 1 Doug. K.B. 241
  34. Charanjit Kaur Nagi v. Govt. Of N.C.T. Delhi and Ors, MANU/DE/8847/2007
  35. Supra note 20.
  36. Janki Narayan Bhoir vs. Narayan Namdeo Kadam MANU/SC/1155/2002
  37. Brij Raj Singh v Sewak Ram MANU/SC/0290/199
  38. Section 71, Indian Evidence Act, 1872
  39. K. Laxmanan vs. Thekkayil Padmini and Ors. MANU/SC/8352/2008
  40. V. Kalyanaswamy (D) by L.Rs. and Ors. v. L. Bakthavatsalam (D) by L.Rs. and Ors. MANU/SC/0528/2020
  41. Department of Economic Affairs, Ministry of Finance GOI, Report on steering committee on Fintech related issues

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