Introduction

Attestation under every system of law is a proof of the authenticity of the document and that document has been executed by a person’s free will. Attestation has been defined under Section 3 of the Transfer of Property Act, 1882 (TPA).

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 of TPA

• Section 3 of TPA defines 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.
• 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.

Requisites of a Valid Attestation

• There must always be two or more attesting witnesses.
• It is ordinarily necessary that each witness must see-
  • The executant sign/affix his mark to the instrument, or
  • Some other person sign the instrument in the presence and by the direction of the executant or
  • The witness should have received from the executant a personal acknowledgment of the executant’s signature/mark or of a person signing on behalf of the executant.
• An attesting witness need not witness the actual execution of the deed in as much as he can attest on the acknowledgment of execution by the executant himself.
• Each witness must sign the instrument in the presence of the executant.
• Each witness must sign only after the execution is complete otherwise it will not be a valid execution.
• All the attesting witnesses need not attest at the same time.
• No particular form of attestation is necessary.
• The acknowledgment must be by the executant himself and not vicariously or through agents.
• Mere presence of the signature is insufficient to constitute attestation. It must be further shown that the witness signed for the purpose of certifying that he saw the executant sign the document.
• A person who is a party to transfer cannot be an attesting witness, but a party interested in transaction can be a competent witness.
• It is not necessary that the attesting witness should be able to identify the signature of each other.
• The document cannot be enforced in a court of law in case of invalid attestation.

Case Laws

• In Kundal Lal v. Rofi Begum (1939), the Privy Council held the attestation would be valid if the lady behind the curtain could see the attesting witness if she wanted to.
• In Abdul Jabbar v. Venkata Sastri (1966), the Supreme Court held that if a person puts his signature on a document for any other purpose, then he is not an attesting witness.