Meaning and importance of Attestation as per Indian Laws
Purpose of attestation- Verification of voluntary
execution of the transfer deed in case of doubt or express denial
Essential requisite of a valid attestation:
1. There must be two or more attesting witness
2. Each witness must see:
a) The executant sign or affix his mark (thumb
impression) to the instrument or
b) See some other people sign the instrument in the
presence
3. In order to see if the vendee is not in any kind
of undue influence, therefore the vendor cannot himself become a witness s or a
valid attestor. Party to the deed cannot be the witness.
Sant Ram v Kamla Prasad[1]
In this case, the attestation was done first on the document as the executant
forgets to sign the document. Then later the executant was called, and he signed
the document in the presence of the registrar. It was held that the deed
was not validly attested as the time when 6 persons attested the document it
was not even executed. Court held that 'Attestation means testifying the
voluntary execution of the transfer deed and therefore attestation can never be
prior to the execution of the document and must always be subsequent to.'
The
ideal procedure is-
1. Execution – it is the act of signing of the
document by the parties who are later bound by the content of it.
2. Attestation – the act of witnessing the signing
of the document and also signing to verify that the document is properly signed
by those, who are bound by its content. It acknowledges the authenticity of the
document as it verifies that the proper process was followed.
3. Registration – it is the process of recording
the document in the official book. It is the disclosure of the content of a document
in the public domain that a document is being executed.
What
is party to the deed and party to the transaction difference?
Party
to the deed are the people who are obliged to perform the contract, whereas the
party to the transaction are the people who are taking role in a legal process,
e.g. execution of the document. Witnesses are party to the transaction and not a
party to the deed.
What is a testamentary and non-testamentary document?
A document which has vigour that his property will be
transferred to another person but at the same time it is ineffective and
invalid until the death of a person is called testamentary document. These are
types of documents that cannot be kept as security or one cannot take loan or
credit against them from the bank.
All documents which do not fall under testamentary document
are called non-testamentary document. Non-testamentary documents that change
interest, rights or title in the property are required to be registered. For
most mortgage, it is important to register them but if the mortgage is created
by deposition of title deed, it does not become necessary to register u/s 54 of
the act. Only if the value of the document is less than Rs. 100, it is not
necessary to register them. registration is done so as to make the document’s
validity more legally effective as it is a proof that the document is free from
any kind of irregularity or illegality.
Section 3 of the Transfer of Property Act defines
attestation as to the process of witnessing the execution of a document and
thereafter subscribing the names of witnesses in the testimony of such facts. Minimum
2 witnesses are mandatory for a valid attestation. The purpose of attestation
is to remove the scope of fraud, misrepresentation, coercion, undue influence or
any such illegality in the execution of document. It is necessary to attest the
testamentary document.
ML Abdul Jabbar Sahib v MV Venkata Sastri [2]
In this case, A borrowed money from B and promissory note was issued. Later A
defaulted and didn't return the money to B back. Summary suit (right to defend
is not automatic but it has to be pleaded) was filed in this case in the civil
court. The right to defend was obtained and provided by court on the condition
that he will file a security bond in favour of the registrar high court. 2
people signed (as confirming this person is A). This was their capacity to just
confirm that the particular person is A. Another signature was of the registrar
and advocate. The summary suit was decided in favour of B. B is saying that he
is having priority over Mr O, P, Q (other creditors of A) as he is a secured
creditor.
Whereas Mr O, P and Q are ascertaining that the security
bond between A and B is not validly attested. Hence it is not a valid document.
The signature of advocate was attesting in the capacity that he has drafted the
document and other 2 people are signing in capacity to identify that this
person is Mr A. There is no ascertainment of fact that proves Mr A was signing voluntarily
the document. Though the number of signature lying on the document are more
than 2, but they are not witnesses witnessing the voluntariness of A. Court
accepted the arguments from O, P and Q and said that the particular document is
not validly attested because as per section 3 of the Transfer of Property Act,
2 or more witnesses sign the document. There shall also be the presence of
'animo attestandi' 'intention to attest' should also be there.
Amino
Attested: -
It means an intention to attest more elaborately says the
physical act must be along with mental act to authenticate the execution of the
document. It is essential that the witnesses put his signature ‘amino
attestendi’ that is with intention of attesting. If a person puts his signature
for any other purpose means to certify that he is a scribe or a registering
officer or a solicitor or for identifying the testator he is not an attesting
witness.
It is essential that the person relying upon a document must
establish that the executants have signed or put his thump impression before
the attesting witness and the attesting witness must sign in his presence.
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