Attest means, bear a witness to a fact. Valid attestation, under Section 3 of the Transfer of Property Act, 1882 (TP Act), 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 witnesses shall have been present at the same time and no particular form of attestation is necessary.
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 Prescribed by Law to be Compulsorily Attested
Every document does not mandatorily require a witness’s signature. Three legal instruments 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 statute, cannot be proved by a court based on testimony of attesting witnesses.
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.
Indian Contract Act, 1872 does not mandate the attestation of any contract by attesting witnesses.
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, observed the Supreme court in Krishnan v Backiam & Anr.
No Examination of Witness Needed to Prove an Agreement
No provision of the Indian Contract Act prescribes that examination of the attesting witnesses is required to prove an agreement.
Examination of Attesting Witness Needed for a Will
However, it is necessary that examination of an attesting witness is essential to prove a Will, as provided for in the Indian Succession Act, 1925.
Where there is a specific provision that requires a document is to be attested then only it becomes necessary to examine the attesting witness. This is what has been laid down in Section 68 of the Indian Evidence Act and observed in 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 observed 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 in accordance with 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.
