Attestation under TP Act means
The term attest means, bear witness to a fact. Legally valid attestation, as per the Section 3 of the Transfer of Property Act, 1882(TP Act), essentially means: –
- Each of the two or more witnesses has seen the executant sign the instrument, or some other person has signed the instrument in the presence and by the direction of the executant, or has received from the person an acknowledgement of his signature or mark, or of the signature of such other person
- With a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant.
That means the witness should have put his signature and has seen the executant or some other person under the direction of the executant sign, or has received from the executant a personal acknowledgement of his or such other person’s signature.
It shall not be necessary that more than one of such witness shall have been present at the same time and no particular form of attestation is necessary.
Indian Contract Act doesn’t prescribe attestation
Indian Contract Act, 1872 does not mandate the attestation of any contract by witnesses.
Proving attestation under Indian Evidence Act
Indian Evidence Act, 1872 provides that for proof of execution of documents which are required by law to be attested, at least one attesting witness is to be called upon to prove the execution of the concerned document.
However, this stipulation is restricted only to documents which are required by law to be attested.
Instruments mandatorily attested by law
Every document does not mandatorily require a witness’ signature in India. Only few documents are required to be attested mandatorily by law. They are: –
- Wills, as provided under Sections 63 of the Indian Succession Act, 1925
- Mortgages for Rupees One Hundred only or more, as provided under Sections 59 of TP Act, and
- A registered instrument of gift of immovable property, as provided under Sections 123 of the TP Act.
The validity of documents, which do not require attestation under the relevant statute, cannot be proved by a court based on testimony of attesting witnesses.
The following judgments summarize the position of the various courts with respect to mandatory attestation of a legal document:
Witness attestation unnecessary in contract simplictor
In a contract simplicitor like an agreement to sell an immoveable property the signature of the attesting witness is not mandatory.
No attestation needed for sale deed
Compulsory witness attestation is not required in sale deed relating to an immoveable property as per the law. The Section 54 of the T P Act does not speak about compulsory attestation.
When law does not require compulsory attestation of a document, such unattested document may be proved as per the provisions of Indian Evidence Act.
The Section 68 of Indian Evidence Act is applicable only to the cases where the documents are required to be attested in law. It has no application for sale deed which need not be attested as per law, says the Supreme court in Krishnan v Backiam & Anr.
No examination of witness to prove an agreement
None of the provision of the Indian Contract Act state that in order to prove an agreement it is necessary to examine the attesting witnesses.
It is only under the provision of the Indian Succession Act, for proving a Will, examination of attesting witness is essential. Thus, only where there is a specific provision made in the Act requiring that the document is to be attested then in such cases the examination of the attesting witnesses is necessary as laid down in Section 68 of the Indian Evidence Act, says Bombay High Court in Asudamal S/O Laxmandas Sindhi v Kisanrao S/O Wamanrao Dharmale.
Attesting witnesses need not know the contents
The witnesses need not necessarily know what is contained in the documents says the Supreme Court in Hemkunwar Bai v Sumersingh.
Every document does not require attestation
In short, every instrument under the law in India does not require attestation. Even if it is attested the court may not be conducting the examination of them unless the document is required to be attested as per law.
However, attestation of the instrument and consequent examination of the attesting witnesses as part of proving it are essential requirements in instrument such as a Will when law prescribes so.
