| Introduction | jurisprudence |
| sections | section 3 TPA |
| relevant Case laws | Kumar Harish Chandra vs Bansidhar Mohanty Abdul Jabbar vs Venkata Sastri Padarath Halwai vs Ram Narain |
| present problem | question related |
| conclusion | decision as per our reasoning |
Generally, Attestation means to affix a document or agreement through sign or seal by executant and in front of witnesses. It requires that it should be made voluntarily or with free consent and intention must be there to attest an agreement.
Attestation
- It means to sign and witness any fact.
- In this, a person signs the document by way of testimony of the fact that he saw it executed.
- TPA requires attestation but not in respect of all documents.
- For instance, mortgages and gifts must be attested whereas documents effecting sales, exchanges and leases need not to be attested.
Section 3 TPA:
“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;
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 attesting
- .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.
There is qualification required for a person to be competent for attesting witness. 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.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.
A party to the transfer of property cannot be an attesting witness. 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.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.
Animo Attestandi: It is Latin, legal maxim which means that “intention to be an attesting witness”. “Animus attestandi” is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness.(Abdul Jabbar case)
The animo testandi may be implied , and if an instrument speaks for itself and is by its terms a testamentary disposition of property , the law will presume that the maker signed it understandingly and intended it as his will , if legal proof of its execution is furnished. An idiot or a mentally retard person, can make no will, because he has no intention.
Relevant Case laws:
Kumar Harish Chandra Deo vs Bansidhar Monanty
facts:
Harish and Jagannath were friends. Harish was in need of money, Jagannath the money and wanted to help Harish, but the relations between them were such, that Appellant felt embarrassed in asking for some security from respondent no 1, for the repayment of the money advanced, for fear that it may spoil their relations. He took the help of Bansidhar Mohanty, whom he had taken into confidence. Though the money was Jagannath ‘s, it was lent to appellant by Mohanty, who also obtained a mortgage of Appellant ‘s property in his (Mohanty’s) name as a security for repayment of the money. This mortgage deed was duly executed by Respondent, the mortgagor in favour of Mohanty the mortgagee, and was attested by two witnesses, one of whom was respondent no 1. Respondent, who had lent the money, was a person who was a party to the whole transaction, but it was only Appellant and Mohanty who were parties to the deed.The money was not repaid by the appellant within the year with interest.
issue:
Whether the mortgage deed, upon which the suit of respondent was based validly attested?
Whether respondent no. 1 was entitled to institute the suit?
judgement:
The Supreme Court held that no provision of law debars a money-lender from attesting a deed which evidences the transaction where under the money was lent.The Hon’ble Court drew a distinction between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction.While the former is incompetent to be an attesting witness, the later can validly attest the deed.A party who is interested in the transaction can be a competent witness.It was held that the deed was validly attested.
SC upheld HC’s decree and held that this deed is validly attested.Court held that even if a person who is not a party to deed may attest it providing he has some interest in it.
M. L. Abdul Jabbar Sahib vs Venkata Sastri
facts:
A instituted a suit against B, claiming a sum of approximately Rs. 49,000 allegedly loaned to him on the strength of two promissory notes executed by B, in his favour. B, from three more persons, O, P and Q, had borrowed some amounts, and had failed to repay them as well.The claim of A was, that as he was a secured creditor, due to the security bond, out of the sale proceeds of the charged properties, first he should be paid, and if some amount is left over after satisfying his claim, it should be distributed among O, P and Q.On the other hand, O, P and Q claimed that all four of them i.e., A, O, P and Q had equality ofstatus as unsecured creditors, and therefore the sale proceeds should be rateably distributedamongst them. They based their claim on the argument that the security bond does not create a charge, as it was not validly attested by two competent witnesses.If the bond is not validly attested, no charge will be created for the benefit of A, and he will not have any priority with respect to satisfaction of his claim, as he will be at par with the other unsecured creditors.
issue:
Whether the deed signed by the Sub-registrar and identifying witnesses is validly attested?
judgement:
Court explained the meaning of the term ‘attested’ and observed that it is essential that thewitnesses should have put their signatures animo attestandi, that is, for the purpose ofattesting that they had seen the executant sign or had received from him a personalacknowledgement of his signatures.If a person puts his signature on the document for some other purpose, e.g., to certify thathe is a scribe or an identifier or a registering officer, he is not an attesting witness.Prima facie, the Registering Officer puts his signatures on the document in discharge of hisstatutory duty, and not for the purpose of attesting it, or certifying that he has received fromexecutant a personal acknowledgement of his signatures.Likewise, the two identifying witnesses had put their signatures on the document toauthenticate the fact that they had identified the executant, and as it was not shown thatthey had put their signatures for the purpose of attesting the document, they could not beregarded as attesting witnesses.A registrar can be a competent witness provided he has animus to attest. The Sub-registrar orregistering officer who registers the document therefore may act as attesting witness, but it mustbe shown that:→ (i) he has intention to attest; and→ (ii) he has either personally seen the executant signing the document, or the executantaccepts the execution before him.Where the deed was written in the English language and the executant as well as theattesting witnesses were unfamiliar with this language, and the contents of the deed werenot explained to the executant, the court held that the document was not properly attested.
The court held that as the document was attested by one attesting witness only, it did notcreate a charge, and so A’s status was that of an unsecured creditor, whose claim was atpar with the claim of the other three simple money decree holders.
Padarath Halwai vs Ram Narain
facts:
There are 2 mortgagors who are pardanasheen ladies, they executed a mortgage deed.They were in a Zenana Apartments in ante room to execute the deed. The ladies seated on a floor, between the ladies and the 2 attesting witnesses, there was a chick, which was not lined with cloth, hanging in doorway.The 2 attesting witnesses was present there at the time of deed but couldn’t see anything because of tat, hanging in doorway.
issue:
Whether the deed is executed without 2 A.W.?
judgement:
Evidence was given to prove that there AW but proved to be unreliable.Even if accepted as true, it did not prove that the 2 AW who gave evidence on remand had seen the mortgagors sign their names to the mortgage.The faces of the ladies were not seen by witnesses, but they are well acquainted with their voices. This evidence was accepted by Court as true.
Court held that AW was present there and they executed that mortgage deed. It was duly attested by AW within the meaning of sec 59 of TPA.
